Auckland Council v Armitstead [2021] NZDC 9716 (21 May 2021)

Last Updated: 11 October 2021

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]

IN THE DISTRICT COURT AT WAITAKERE I TE KŌTI-Ā-ROHE KI WAITĀKERE

CRI-2019-090-005343

[2021] NZDC 9716

AUCKLAND COUNCIL

v

ROBERT ARMITSTEAD

Date:	21 May 2021
Appearances:	B Watts and D Collins for the Prosecutor H Stuart for the Defendant
Judgment:	21 May 2021

SENTENCING NOTES OF JUDGE L TREMEWAN

Background

[1] The defendant, Robert Armitstead, faces sentencing on three charges pursuant to s 239 of the Local Government Act 2002, for breaching cl 9(5)(a) of the Auckland Council Public Safety and Nuisance Bylaw 2013 (the Bylaw), by entering a publicly closed part of the Waitākere Ranges Regional Park (the Park). The maximum penalty for such a charge is a fine of $20,000.

[2] This is the first prosecution under the relevant Bylaw relating to Park closures in 2018, in response to Kauri dieback disease.

AUCKLAND COUNCIL v ROBERT ARMITSTEAD [2021] NZDC 9716 [21 May 2021]

[3] Kauri dieback disease is caused by a microscopic fungus-like organism, phytophthora agathidicida.1 Spores live in the soil, infect kauri roots and damage the tissues which carry nutrients and water within the tree. There is no known cure and nearly all infected kauri die. Human activity involving soil movement is understood to be the greatest cause of spread. A pinhead size of soil is enough to spread the disease.

[4] By way of background, earlier, in November 2017, Te Kawerau ā Maki, as mana whenua, had already placed a rāhui (customary prohibition) over the Waitākere forest because of the perceived need to protect kauri from an existential threat. The Council however subsequently enacted the relevant Bylaw as it was observed that there had been a “high level of public non-compliance” with the rāhui and the measures already in place to prevent the spread of Kauri dieback.

[5] It is apparent that in its decision making, Auckland Council acknowledged that there is significant technical uncertainty around how to best control Kauri dieback but it took into account expert advice also noting that the disease was spreading across the region, with its incidence and proliferation most known in the Waitākere ranges. The Council also recognised its responsibilities in seeking to stop the spread across the Auckland region.

[6] These particular charges relate to three occasions in 2019 (on 14 May, 26 August and 11 September) when the defendant Mr Armitstead was in the closed forested area of the Park around Scenic Drive, Tītīrangi. For convenience, these charges will be referred to chronologically as the first, second and third charges respectively.

[7] A Judge Alone Trial was held in relation to these matters. The Court’s decision, delivered on 30 March last, outlined the reasons why Mr Armitstead was found legally culpable for the charges laid.

1 “What is Kauri Dieback Disease?” (2016) Keep Kauri Standing <www.kauriprotection.co.nz>.

First charge

[8] The first charge related to events on 14 May 2019. Mr Armitstead entered a closed area of the Park and was seen and challenged by [witness 1], a kauri dieback compliance officer employed by the Council. She also happened to know Mr Armitstead as they had been long-term colleagues from the Piha Surf Life Saving club.

[9] The gate itself had a large sign expressly prohibiting entry. The sign referred to the area being closed to combat the spread of kauri dieback disease and stated that any unauthorised person entering this closed area committed an offence under the relevant provisions of the Bylaw which were set out, along with advice explaining that breach of the Bylaw attracted penalties of up to $20,000.

[10] [Witness 1] also told Mr Armitstead that the park was closed. Mr Armitstead replied that a Council employee had told him the soil was untested there and there were no kauri on the track. He then added “sorry mate, I’m going in” and turned and walked off further into the prohibited area.

[11] It is to be acknowledged that Mr Armitstead pleaded guilty to his walking on the access road but disputed the facts as alleged by the Council, denying liability in relation to walking along the Nihotupu tramline arguing that the Bylaw did not apply to the tramline.

[12] Regarding the access road, Mr Armitstead maintained that at the time he entered, he did not realise that it formed a part of the closed Incline Track. He believed the sign prohibiting entry to be “some error on the part of the Council”. He asserted that this sign had been installed after the other signage in 2018. Mr Armitstead had based his knowledge upon a map that he had owned for many years.

Second and Third Charges

[13] In relation to charges two and three, Mr Armitstead was observed on CCTV footage walking through a closed forested area of the Park on 26 August 2019 and 11 September 2019. In relation to the latter date, the Council asserts that there were two closed forested areas entered.

[14] For charge two, on 26 August 2019, Mr Armitstead walked from the Arataki Visitor Centre carpark to Greenwoods Corner and back. He was captured on CCTV in the Arataki Visitor Centre carpark and beside the Nihotupu tramline.

[15] For charge 3, on 11 September 2019, Mr Armitstead walked from the Arataki Visitor Centre through Greenwoods Corner into the Hauler Tunnel and back. He was captured on CCTV in the Arataki Visitor Centre carpark and beside the Nihotupu tramline.

[16] On both occasions, Mr Armitstead walked around a fence restricting access that had a sign prohibiting entry.

Previous proceedings

[17] Mr Armitstead submitted a number of arguments in his defence at the Judge Alone Trial, but as noted, the Court found all charges to be proven.

[18] Mr Armitstead argued that s 85 of the Railways Act 2005 removes the Council’s interest, as landowner, in the land underlying a railway line, contending that the Bylaw did not apply to the land on 5 m of either side of the Nihotupu Tramline. However, the Court rejected that interpretation. Typically, a fixture is treated as part of the land, as opposed to a chattel. The Court held that the effect of s 85 is that when a railway line (a fixture) is installed on someone’s land, that landowner does not become the owner of the railway line. Section 85 has no impact on ownership of the underlying land, only on the ownership of the overlying railway line. Even if the tramline is vested in Watercare, and not the Council, Watercare’s ownership of the tramline does not remove the underlying land from the Park which is Council-owned.

[19] The Court found that Watercare’s powers in respect of the tramline do not exclude the Council’s powers to close the forested parts of the Park to the public. The Council had authority to close any part of the park to the public, and thus the actions of Council were valid.

[20] In relation to Mr Armitstead’s contention that he had thought the Council had made a mistake with the signage on the gate at Greenwoods Corner, the Court noted that he could have readily clarified the matter using the details on the signage, which provided reference to a website, a phone number or at the nearby Arataki Centre. The Court found that Mr Armitstead seemed resolute about his view of the matter and what he considered himself entitled to do.

[21] Mr Armitstead also (mistakenly) considered that there were no kauri present in the areas where he walked. He said that he had heard from a council employee that the area had been untested for kauri dieback. Even so, such matters made no difference in terms of his culpability. The Court found that if he genuinely believed he was permitted to do what he did, then he was not only wrong, but it was contrary to other information clearly displayed and otherwise available. He was simply not entitled to be where he was.

Prosecutor’s submissions on sentence

[22] The Council submitted that a starting point of $3,000 per charge is an appropriate starting point. The Council supports its argument by using other cases of environmental offending, namely under the Resource Management Act 1991.

[23] The Council referred to the case of Machinery Movers Ltd v Auckland Regional Council which outlines the following relevant factors:2

• (a) General deterrence as the dominant consideration;
  
• (b) Nature of the environment affected;
  

2 Machinery Movers Ltd v Auckland Regional Council [1994] 1 NZLR 492 (HC).

(c) Extent of damage;

(d) Deliberateness of the offence;

(e) Attitude of the accused;

(f) Extent of attempts to comply;

(g) Remorse;

(h) Profits; and

(i) Criminal record or other evidence of good character.

[24] The Council submits that aggravating features of the offending included the increased risk of Kauri dieback disease spread and Mr Armitstead’s sense of entitlement throughout the proceedings in not inquiring further about the signage even with ample opportunity. Further, he had been given warnings but demonstrated repeated non-compliance in the second and third charges. For the first offence, Mr Armitstead entered despite obvious signage and a Council employee telling him to stop. He also received information through a newsletter that he subscribed to and information was publicly available.

[25] The Council identified a range of potentially comparable cases for sentencing.3 It submitted that the defendant’s wilful breach of the Bylaw by ignoring signs and a trespass notice is in line with Parlane v Waipa District Council, Green v Watercare Services Ltd, and Lawrie v Department of Conservation.

[26] The Council also submitted that Mr Armitstead’s behaviour was more egregious than in Waitakere City Council v Poulton because Mr Armitstead knew of

3 Livingstone v Department of Conservation HC Rotorua CRI-2008-463-62, 19 August 2009; Lawrie v Department of Conservation HC Napier CRI-2006-441-28, 27 July 2006; Parlane v Waipa District Council [2005] NZAR 589 (HC); Waitakere City Council v Poulton DC Auckland CRI- 2007-090-9589, 4 April 2008; Green v Watercare Services Ltd [2012] NZHC 2308; and Moi Farms (Maimai) Ltd v Department of Conservation [2011] NZHC 1024; [2011] NZAR 694 (HC).

the Bylaw and deliberately contravened it and did not show any remorse, co-operation or a good attitude.

[27] The Council submitted that the Court should consider deterrence when arriving at a starting point. It would be the case that both specific deterrence (in relation to Mr Armitstead personally) and general deterrence for others who may contemplate breaching the Bylaw would be relevant. Concerns around non-compliance with the Bylaw was cited, with the submission that the Court’s decision would help to inform the community of how seriously compliance with the Bylaw should be taken. The fine should be significant enough for the defendant and others to appreciate the seriousness of the issues concerned and the level of fine imposed a precedent for later cases.

[28] The Council submitted that a starting point of $3,000 per charge would be appropriate. Additionally, there should be an uplift of 5–10 per cent for the second and third charges because Mr Armitstead deliberately entered out of “entitlement” despite warnings and risk to kauri in the park.

[29] The Council submitted that he is entitled to a deduction for prior good character and for a guilty plea, at least for the first charge. The Council submitted that a deduction of 5–10 per cent would be appropriate for prior good character. Mr Armitstead did not plead guilty until the trial commenced, then contested the law and facts. The Council submitted that the defendant should only receive five per cent discount for the guilty plea on the first charge.

[30] The Council submits an end fine of $8,850.

[31] It should also be noted before turning to defence submissions as to sentence, that the Council has tendered a letter from Robin Taua-Gordon, Heritage and Environment Officer for Te Kawerau Iwi Tribal Authority and Settlement Trust. In Court she has also read out her letter. It references the rāhui (which preceded the Auckland Council’s Bylaw) which was placed over Te Wao Nui a Tiriwa (being the Waitākere Ranges) and the reasons for that. Ms Taua-Gordon eloquently set out the importance of these matters for mana whenua, and the wider community in seeking to protect te taiao, the environment.

Defence Counsel’s submissions on sentencing

[32] Defence counsel submitted that Mr Armitstead genuinely believed that his walking would not harm kauri as his routes only passed one kauri tree on the occasions of charges two and three. He believed that the parts of the Park where he was walking were open, albeit incorrectly.

[33] The defence submission is that harm to the environment could not be an aggravating feature because there is no evidence that Mr Armitstead’s offending caused any harm to kauri. It was submitted that there are studies which suggest that kauri can flourish in the presence of kauri dieback spores and there was no evidence to suggest that human traffic increases the risk of harm.

[34] Additionally, Mr Armitstead genuinely believed he was not breaching the Bylaw and did not deliberately set out to harm any trees. The defence submitted that Mr Armitstead believed the tracks to be open despite being given warnings and it was submitted that this did not amount to an aggravating factor in the case but rather the absence of a mitigating factor.

[35] The defence submitted that Mr Armitstead should receive a 10 per cent discount for his guilty plea and acceptance of walking through parts of the Park. The defence also submitted that he should receive a further deduction of 10 per cent to reflect his previous good character and his service to the community through the Piha Surf Life Saving Club.

[36] Evidence of Mr Armitstead’s service to surf lifesaving was submitted. Ms Hayward, General Manager of the Piha Surf Life Saving Club noted that Mr Armitstead joined the club in 2002 and had served in a number of important roles, which she outlined. He had been patrolman of the year twice and had held many positions of responsibility. He has been seconded onto the Board of Directors for his operational knowledge of the club and other relevant experience he had. It was said that since 2002, he would have put in thousands of volunteer hours towards keeping people safe at Piha beach and that he is held in high regard.

[37] The defence noted that the case of Machinery Movers Ltd v Auckland Regional Council referred to by the Council above predated the Sentencing Act 2002.4 The defence cited Randerson J who noted that while the factors in Machinery Movers Ltd are still relevant, they are not comprehensive, and the Sentencing Act principles must be considered.5

[38] The defence submitted that the sentence must be proportionate to the gravity of Mr Armitstead’s offending and the court should not impose a disproportionately severe sentence to ‘make an example’ of him.

[39] It was also submitted that the legal authorities that the Council cited are generally more serious than the present offending because most show deliberate offending. Additionally, Mr Armitstead did not intend to do harm and that his actions did not increase the risk of harm to kauri.

[40] The defence submitted that a starting point of $500 per charge was appropriate. Additionally, there should be no uplift for subsequent offending because Mr Armitstead genuinely believed that those areas were open.

[41] It was also submitted that a 10 per cent discount ought to apply to Mr Armitstead’s actions in accepting charge one. Additionally, the defence submitted that a further 10 per cent discount should be given for Mr Armitstead’s previous good character, his lack of convictions, and his thousands of volunteer hours at the Piha Surf Life Saving Club. The defence counsel submitted a final fine of $960.

[42] The defence also notes Mr Armitstead’s apology letter which states that he will comply with closures in the future and submit there is no evidence of the risk of future breaches.

4 Machinery Movers Ltd, above n 2.

5 Selwyn Mews Ltd v Auckland City Council HC Auckland CRI-2003-404-159, 30 April 2004 at [43].

Decision

[43] The Court considers that the starting point sentence should appropriately reflect the need for general deterrence. There is an important and legitimate need to warn off others who might seek to enter the prohibited areas of the Park, that there will be a significant, rather than trifling consequence if found breaching the Bylaw.

[44] This seems particularly important given that some clearly consider the provisions controversial and question their efficacy. The Court has no intention of going behind those provisions to engage in a debate about whether the approach taken by the Council was the most appropriate in relation to expertise around the spread of Kauri dieback. The point here, is that the Auckland Council had a legitimate entitlement to impose the Bylaw and it acted within that, responding to its responsibility to protect the forest in the way it considered most appropriate.

[45] The Court also notes that while in some cases, damage caused by the actions of an offender can be easily quantified, such as the number of trees cut down, such a scenario is not comparable to the present case. That is because the risk with spreading Kauri dieback is a more general one and, by its very nature, is more difficult to discern. That said, the Court does not overlook the defence argument that if an offender walks in an area where there are few or virtually no trees and takes steps to clean boots and so on, that the risk to kauri, if there is an accepted risk, is correspondingly reduced. Mr Armitstead contends that this was the case for him.

[46] The Council contended that there were more kauri in the prohibited area than Mr Armitstead accepted was the case. However, the Court does not intend to conduct a kauri-counting exercise or measure distances between Mr Armitstead and the nearest kauri. The presence of kauri in the general area is clearly seen in photographs. It is impractical for there to be different standards applied when the position, as regards the number of kauri, will naturally vary through the forest. It is legitimate for the Council to have a general prohibition, which must be respected irrespective of the frequency of kauri.

[47] Despite all of the preceding comments, the Court accepts that there was some evidence to support the contention that Mr Armitstead had misapprehended some of the matters relating to his entitlement to be in the forest. However, there is a limit on how much the Court can account for this given his failure to take obvious steps to clarify the position. The Court also notes that [witness 1], the kauri dieback compliance officer, told him he was not entitled to be where he was on the first occasion. He ignored the advice, preferring his own view of the matter.

[48] Mr Armitstead sought to rely upon his reading of maps that he had had in his possession for many years, along with a clearly significant knowledge of the area. However, such is not fool proof and it is obvious that what is permitted also changes over time for various reasons. Mr Armitstead well knew that there had been significant changes brought in and why. Whether he agreed with those changes is also irrelevant. In terms of the Council signage, these contained clear information about the prohibition of entry by unauthorised people including advice as to the penalties attracted. Mr Armitstead, by his actions, defied the prohibition.

[49] The Court is aware of and has considered other principles and purposes of sentencing as outlined in the Sentencing Act 2002. Relevant purposes in s 7 include holding the offender accountable for harm to the community and to promote a sense of responsibility for, or acknowledgement of, the harm. The Court has also noted the purpose of denouncing the offender’s behaviour as a relevant consideration.

[50] The Court considers that a starting point fine at $3000 per charge as sought by the Council is appropriate. However, it will not uplift the starting point for the second and third offences as sought by the Council. The Court instead takes the position that the contended uplift there can be negated by any legitimate sense that Mr Armitstead might have had about his actions, albeit misplaced. Further, as this is the first case, he has not had the benefit of seeing what has happened to others.

[51] Although Mr Armitstead denied the facts in relation to the first charge, the court is willing to allow a 20 per cent discount for the guilty plea on that charge, noting that it represented an acknowledgement of wrongdoing and the taking of some responsibility in terms of the proceedings. Mr Armitstead’s recent letter of apology is

consistent with this. He has explained to the Court that he meant no harm and has undertaken to comply with the Bylaw in future while it remains in place.

[52] Further, the Court will allow a 15 per cent credit for Mr Armitstead’s lack of previous convictions and previous good character, and a further 15 per cent for the years of dedicated service that Mr Armitstead has given to the community through Surf Lifesaving. Naturally these credits are applicable to all charges.

[53] Along with the convictions now imposed, there will be fines as follows:

• (a) Charge 1 (CRN ending 1243) Fine $1,500 with court costs of $130
  
• (b) Charge 2 (CRN ending 1244) Fine $2,100
  
• (c) Charge 3 (CRN ending 1245) Fine $2,100
  
  • (i) Total fine: $5,700
    
  • (ii) Total costs: $130
    

Judge L Tremewan

District Court Judge

Date of authentication: 25/05/2021

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.