Northland Regional Council v Semenoff [2022] NZDC 17965 (15 September 2022)

Last Updated: 23 September 2022

IN THE DISTRICT COURT AT WHANGAREI

I TE KŌTI-Ā-ROHE

KI WHANGĀREI-TERENGA-PARĀOA

CRI-2020-088-003188 [2022] NZDC 17965

NORTHLAND REGIONAL COUNCIL

Prosecutor v

STANLEY GILLIS ALEXANDER SEMENOFF

Defendant

Hearing: 15 September 2022 Appearances: K J L de Silva for prosecutor

M Atkinson for the defendant Judgment: 15 September 2022

SENTENCING DECISION OF JUDGE P A STEVEN

Introduction

[1] By reserved judgment delivered on 25 July 2022, Stanley Gillis Alexander Semenoff (‘Mr Semenoff’) was found guilty of offences under s338(1)(a) of the Resource Management Act 1991 (‘RMA’ or ‘the Act’). The offending related to breaches of:

• (a) section 15(1)(c) RMA, in that he discharged or permitted the discharge of contaminants into air by the burning of waste (including plastic, metal cable, PVC piping, iron, fence posts and plywood) from an industrial or trade premises; and
• (b) section 15(2) RMA, in that he discharged or permitted the discharge of
  

NORTHLAND REGIONAL COUNCIL v S G A SEMENOFF

contaminants into air from the burning of tyres in a manner that contravened Regulation 7 of the Resource Management National Environment Standard.

[2] The offending occurred on 3 June 2020, and resulted from the burning of rubbish at a property at South End Avenue, Raumanga, Whangarei (‘the site’), which is owned by Mr Semenoff and Northland Trustee Limited.

[3] At the time of the offending, the Northland Regional Council (‘Regional Council’) was administering an operative1 and proposed regional plan,2 pursuant to which the discharge to air resulting from outdoor burning was not permitted and required a resource consent.

[4] The National Environmental Standards (for Air Quality) Regulations 2004 were also in force at the relevant time, which did not expressly allow the discharge to air resulting from the burning at the site.

[5] Mr Semenoff was found guilty on the basis that he permitted the unlawful discharges (of smoke and its constituents) that resulted from the burning.

[6] As this sentencing follows a defended hearing, I was not presented with an agreed summary of facts and accordingly, I refer to the facts recited in submissions of counsel and to my reserved judgment for further relevant background.

Background

[7] Mr Semenoff is the sole director of a number of companies that operate as the Semenoff Group, which includes Stan Semenoff Transport Limited, Semenoff Sand Supplies Limited, Semenoff Storage Limited, SGA Semenoff Agricultural Contractors Limited, Stan Semenoff Logging Limited and Stan Semenoff Livestock Limited.

[8] The Semenoff Group operate from a number of sites in Whangarei and

1. The Regional Air Quality Plan for Northland.
2. The Proposed Regional Plan for Northland.

elsewhere, although the major workshop and the office complex is on South End Avenue across the road from the property where the burning occurred.

[9] The site is used by the Semenoff Group for activities that are ancillary to its primary business activities on the other side of the road, including for storage of items and vehicles associated with the company business activities, although it is otherwise vacant. Rubbish had been dumped on the property by members of the public. In the past, when that had occurred, the district council had been approached to take away the rubbish.

[10] The site is situated in a commercial and industrial area. It is located in a small valley with a hill/ridge to the north and elevated residential areas to the west and south. A residential area to the west and a childcare centre to the south are both within 500 metres of the site and fall within the definition of “smoke sensitive areas”.

[11] Officers for Fire and Emergency New Zealand (‘FENZ’), had attended the site on the morning of 3 June 2020, having noticed thick black smoke from Riverside Drive, some 3-5 km away. They arrived shortly after 10 am. The Regional Council had also inspected the site in response to a complaint from FENZ and from a member of the public.

[12] After arriving at the scene, a FENZ officer had a brief discussion with one of Mr Semenoff’s workers, Mr Borck, who had been responsible for lighting the fire as a means of disposing of the dumped rubbish.

[13] Mr Semenoff was not present on site when the fire was lit, although he arrived shortly thereafter having been contacted by Mr Borck. At the time, Mr Semenoff was recovering from a series of strokes which lead to him being hospitalised in early April 2020, two months prior to the fire.

[14] The strokes had affected him physically and in terms of how his brain was able to process information, and for that reason, he had taken a much reduced role in the running of his businesses in circumstances where, prior to the strokes, he had taken a very “hands on” approach to the day-to-day operations.

[15] Along with another employee, the Semenoff Group accountant Mr Lang, Mr Borck had taken over the running of the operational and administrative side of the business during Mr Semenoff’s recovery. They had decided to tidy the vacant site and burn the dumped rubbish, although they did not tell Mr Semenoff that they intended to do so.

[16] Before the fire was lit, Mr Lang had phoned FENZ to ask whether burning was permitted, and although he received an affirmative answer, it was not clear to the court whether the contents of the rubbish pile had been fully described to the officer that he spoke to. Even so, the enquiry ought to have been made to the Regional Council which administers the relevant rules. Neither Mr Borck nor Mr Lang were aware of the Regional Council’s rules regulating outdoor burning.

[17] There had been three previous incidents of unlawful burning at other Semenoff Group sites. These had occurred in 2008, 2009 and 2014, leading to enforcement action for a breach of the rules on outdoor burning administered by the Regional Council. Accordingly, Mr Semenoff was on notice that his staff were not familiar with these rules, a matter that was relevant to my verdict. Mr Semenoff was well aware of those rules himself, having formerly held a position as deputy chair at the Regional Council.

[18] Somewhat surprisingly, therefore, Mr Semenoff did not give his staff any training or otherwise inform them of the Regional Council’s rules in relation to outdoor burning after those previous incidents, and as Ms de Silva notes, Mr Semenoff’s failure to inform his staff of the rules persisted until the time of the defended hearing, almost two years after the fire on 3 June 2020.

[19] In my decision finding Mr Semenoff guilty of permitting the unlawful discharges, I had made the following observations which are of relevance in this sentencing context:3

Taking a common sense approach to the issue, the inclusion of policies or protocols, including in relation to burning of items not able to be otherwise disposed by

3. Northland Regional Council v Semenoff [2022] NZDC 13774 at [107] and [108].

established practices, seems to be a relatively straight forward matter. Moreover, this requirement is consistent with the Semenoff group’s environmental obligations. I agree that signage could equally have been placed on the site prohibiting burning, although I find that notice of and access to the Council’s rules on burning would have been a more robust and effective preventative measure.

Mr Semenoff’s failure to take these preventative steps to prevent the burning of the waste that had accumulated over a period of around two years is an operative factor in the chain of causation resulting in the discharge. Looking at the matter objectively I consider that in all the circumstances, including where staff were not aware of the Council rules for burning, in the absence of Mr Semenoff to micro-manage staff involved in the clearing of the site on the day of the burning, and in circumstances where there were no other plans for a method of lawful disposal, the burning of this accumulated rubbish was reasonably foreseeable.

Consequences of the offending

[20] There is no evidence of actual environmental damage from the burning. The fire was a small one and was fully extinguished shortly after being noticed. However, the fire did contain some prohibited items including motor vehicle parts such as oil filters, timber that was possibly treated, car tyres, plastics and other general waste items, all of which can release substances, including carbon monoxide, particulate matter, and volatile organic compounds that result in adverse effects on human health and the environment, if not otherwise having the potential to cause a nuisance to neighbours.

[21] There are now a large number of cases involving unlawful burning across the country, with a good number of those emanating from within this region. In almost every one of these cases, the court has referred to the potential for fires to contribute to poor air quality in general, even where there is no evidence of an actual adverse effect.

[22] I sense a tone of despair in Ms de Silva’s submissions for the Regional Council where she submits that there is clearly a need to deter this kind of offending, having referred to the frequency with which this kind of offending occurs within the region.

[23] That leads me to address the matters I am required to consider in this sentencing context.

Sentencing principles

[24] In sentencing for RMA offences, all of the purposes and principles of sentencing under the Sentencing Act 2002 (‘SA’) are relevant to the extent that they are engaged on the facts, although I am also required to recognise that the purpose of the RMA is to promote the sustainable management of natural and physical resources.

[25] One of the underlying purposes of sentencing under the RMA is to impose financial costs or penalties which foster the principles of environmentally responsible corporate citizenship and reflect the need for general deterrence.

[26] In sentencing under the RMA, relevant considerations include:

• (a) the nature of the environment affected;
• (b) the extent of the damage inflicted;
• (c) the deliberateness of the offence;
• (d) the attitude of the defendants;
• (e) the extent of efforts to comply with its obligations;
• (f) remorse;
• (g) any profits realised by the offending;
• (h) previous relevant offending;
• (i) any evidence of good character; and
• (j) remedial steps taken to mitigate or prevent future offending.
  

[27] The relevant sentencing purposes in this case are as follows:

• (a) to hold the defendants variously accountable for the harm caused to the community and environment;
• (b) to promote a sense of responsibility for and an acknowledgement of that harm;
• (c) to provide for the interests of the victims, in this case, the environment;

• (d) to denounce the conduct; and
• (e) to act as a deterrence.
  

Defendant’s culpability

[28] In terms of sentencing principles, I must have regard to the gravity of the offence, including making an assessment of culpability of the defendant, Mr Semenoff. I have earlier set out facts that are relevant to these matters. Counsel contends that the offending is reasonably serious given the background to this offending.

[29] Counsel for the Regional Council further submits that Mr Semenoff’s culpability is at the highest level. Mr Semenoff is the owner and manager of the Semenoff Group of Companies which have employed around 120 staff (although I am now told that Mr Semenoff is winding down his companies).

[30] I was referred to a number of decisions where the courts have placed a higher onus on commercial operators to comply with their environmental obligations. As to that, in my reserved judgment I had made the following observation:4

While Mr Semenoff’s ... reliance on his presence and oversight on a day-to-day basis is a highly risky, if not wholly irresponsible approach to the management of the Semenoff Group’s business activities given its size, the number of employees, and particularly in terms of achieving environmental compliance.

[31] A feature of the offending is that while Mr Semenoff was well aware of the Regional Council’s rules for outdoor burning, he had failed to ensure his staff were also familiar with the rules, and to put in place any procedures or policies in relation to outdoor burning, despite the history of enforcement action in relation to unlawful burning at other sites operated by his company.

[32] Mr Semenoff’s counsel makes much of the fact that this was offending “by omission”. Counsel argues that the gravity of offending where the defendant has

4 [2022] NDC 13774 at [102].

permitted an offence by way of an omission, is less serious than that of a defendant who directly commits the offence or who expressly permits the commission of the offence. That may be so in some cases, although it does not automatically follow.

[33] This submission generally overlooks that the RMA creates a regime of strict liability offences, meaning that the prosecution is not required to establish the mental element of a person's intention to commit a crime, referred to as the mens rea.

[34] Moreover, offending may involve permitting a contravention which means that a prosecuting authority must prove that a defendant:

• (a) provided or afforded an opportunity for acts or omissions which led to a contravention;
• (b) allowed acts or omissions to be done or occur which resulted in a contravention; or
• (c) acquiesced to acts or omissions which resulted in a contravention; or
• (d) abstained from preventing acts or omissions, which lead to a contravention.
  

[35] This type of offending is certainly not uncommon in this jurisdiction. In fact one of the cases I shortly discuss affords an example (being the case of Hastings Demolition).

[36] However, counsel’s submission also overlooks that as an owner and operator of his group of companies, Mr Semenoff must perform and impart his responsibilities with due care and diligence. This involves ensuring that there are systems, processes or policies in place to identify and mitigate issues of non-compliance with the statutory and regulatory framework that applies to Mr Semenoff’s business activities.

[37] Mr Semenoff’s error was that he placed too much reliance on his ability to be on site at all times to oversee day-to-day operations, which in his opinion was a sufficient and appropriate means of ensuring compliance with environmental obligations. As this case proves, that was certainly a highly risky if not careless approach, given that there had been historical incidents of unlawful burning of waste

on Mr Semenoff’s sites, albeit no such incidents since 2014.

[38] However, I must also acknowledge the following factors:

• (a) that Mr Semenoff at least was aware of the Regional Council’s rules on outdoor burning;
• (b) he also had arrangements in place for the collection and disposal of all waste items associated with the Semenoff business activities, such that burning would not otherwise be needed as a means of waste disposal;
• (c) that the rubbish that was burnt had been dumped on the site (which I note was being used for ancillary business activities) by members of the public;
• (d) that the unfortunate circumstances of this offending, which I accept, would not likely have occurred had Mr Semenoff not been incapacitated by the strokes he had suffered; and
• (e) that Mr Semenoff has now made his staff aware of the Regional Council’s rules on outdoor burning, has prohibited burning on any of his sites and has fenced the vacant site to prevent any further dumping of rubbish by members of the public.
  

[39] Accordingly, while I do not entirely agree with Mr Semenoff’s counsel that the gravity of Mr Semenoff’s offending is at the lowest end of the spectrum, I agree that it is not as serious as the Regional Council contends and would place it at the lower level offending.

Starting point

[40] Ms de Silva referred to a number of cases in support of her submission for a starting point in the vicinity of $35,000, notably Hawke’s Bay Regional Council v Downer New Zealand Ltd (‘Downer’);5 Hawke’s Bay Regional Council v Santo Drainage & Contracting Ltd (‘Santo’);6 and Hawke’s Bay Regional Council v

5. Hawke’s Bay Regional Council v Downer New Zealand Ltd [2021] NZDC 4746.
6. Hawke’s Bay Regional Council v Santo Drainage & Contracting Ltd [2020] NZDC 4414.

Hastings Demolition Ltd (‘Hastings Demolition’).7

[41] Counsel’s submissions provided a summary of these cases, whilst also attaching a schedule of a number of sentencing decisions for illegal burning post- dating the 1 October 2009 increase in maximum penalties.

[42] Counsel notes that a number of these cases include cases where defendants have operated illegal landfills and burnt the waste, which are not similar to Mr Semenoff’s offending, although they are included to identify differences in penalties reached by the courts.

[43] Downer, Santo, and Hastings Demolition all involved fires deliberately lit by employees.

[44] In Downer, the fire was lit at a yard occupied by Downer, and within the Hastings airshed, such that the burning of outdoor fires of any sort within the winter period was prohibited by rule 19c of the Hawke’s Bay Regional Resource Management Plan. Other rules regulated burning at other times of the year in terms of the items able to be burnt and in terms of the manner in which they are burnt.

[45] The fire was for the purpose of burning waste material from the business, although it had only been burning for a short while before being noticed by enforcement officers for the Regional Council, who then attended the site. The fire was fully extinguished a short time thereafter, leaving one-half to two-thirds of the material unburnt.

[46] The employee responsible for lighting the fire admitted that this practice was common for the site. He was unaware of the Regional Council’s rules on outdoor burning, although he had contacted FENZ on the morning of the fire to seek approval to light the fire. The company held a fire permit issued by FENZ that had expired and they wanted that extended. He was not advised to check with the Regional Council about their burning rules, although the permit issued by FENZ contained a note to that

7. Hawke’s Bay Regional Council v Hastings Demolition Ltd [2020] NZDC 20030.

effect on the back of the permit itself.

[47] In Downer the court adopted a starting point of $23,000. It found that Downer should have known better and that the warning and advice on the back of the fire permit should have been sufficient to alert a careful operator to investigate the lawfulness of burning with the Regional Council itself.

[48] In Hastings Demolition, the company had a policy to the effect that any fires are only to burn clean timber rubbish. Moreover, a daily ‘toolbox meeting’ occurred with staff present onsite. On the day of the fire, the proposal to light a small fire to burn off timber was discussed and recorded at the record of the toolbox meeting that day.

[49] Staff were instructed not to load toxic material onto the fire, although that instruction was ignored after the foreman, who had been supervising the site, left to attend a meeting offsite. Although there were no established adverse effects of the burning, there was the potential for there to be such effects.

[50] The company had never been prosecuted before, although a formal warning had been issued in 2018 for burning waste. By the time of sentencing, the company had altered its policies and reported that alteration to staff, adopting a policy that no rubbish was to be burnt onsite.

[51] The court arrived at a starting point of $17,000 in circumstances where it found that supervision of the fire was careless, as on return to the site the foreman had not taken sufficient care to monitor the fire and note its contents.

[52] In Santo, the company which carries out drainage and land contracting services, a fire had been deliberately lit by an employee of the company with its knowledge and direction, as part of a clean-up of its site. Prohibited items were identified in materials being burnt at the site, the burning of which is not only associated with nuisance dense smoke but the emissions of hazardous air pollutants known to cause serious health effects.

[53] Mr Santo was unaware that the winter airshed ban on outdoor burning had come into effect at the time of the fire, although he had rung the Council to make an enquiry about the fire ban rules two weeks prior to the offending before lighting a different fire. His conduct was found to be highly careless resulting from an unawareness of the relevant rules. A starting point of $18,000 was adopted.

[54] I find that the circumstances of this offending, viewed in their entirety, are less serious than Hastings Demolition and Santo, including for the reason that Mr Semenoff had been very aware of the rules on outdoor burning since at least 2008, if not before, although he had taken the approach that staff did not need to know about them.

[55] I also find that the offending is less serious than in Downer as in that case burning of business waste was a regular occurrence, whereas this was a one-off incident not involving the disposal of waste associated with the defendant’s business activities.

[56] In terms of the environmental effects of the burning, compared to these other cases, I accept that in this case the fire was small and had only been burning for a very short period before being extinguished. There were no long-term environmental effects resulting from this offending.

[57] However, I disagree that $5,000 is an appropriate starting point for this type of offending, as contended for by Mr Semenoff’s counsel, particularly given that I am required to consider the principles and purposes of the SA, which by s7(1)(f) includes the need for a general deterrence.

[58] Counsel for Mr Semenoff referred to a number of decisions as relevant comparators, not all of which involved similar offending although some of those mentioned are similar in terms of the circumstances of the offending. These decisions, including the cases of Hawke's Bay Regional Council v Glasgow (‘Glasgow’),8 Hawke’s Bay Regional Council v McLroy (‘McLroy’),9 and Hawke's Bay Regional

8. Hawke's Bay Regional Council v Glasgow [2021] NZDC 9731.
9. Hawke’s Bay Regional Council v McLroy [2022] NZDC 1166.

Council v Payne (‘Payne’),10 are summarised in the schedule of cases produced by Ms de Silva and are cases I find to be reasonably helpful.

[59] Accordingly, taking all circumstances into account I adopt a starting point of

$16,000.

[60] I consider that this achieves appropriate parity with cases referred to me by counsel, not all of which are discussed in this decision but which have been considered, bearing in mind that in a sentencing context, every decision is specific to its factual matrix. This case is no exception.

S106 application

[61] Mr Semenoff has made an application for a discharge without conviction under s106 SA, which is opposed by the Regional Council.

[62] The application is made on the grounds that the stigma of a conviction on Mr Semenoff’’s reputation and standing within the community is out of proportion to the circumstances of the offending, particularly given that he did not light the fire or consciously permit the fire to be lit.

The Law – s107

[63] I am referred to s107 SA, pursuant to which there are three factors that are to guide my consideration of this application:

• (a) the gravity of the offence, taking into account aggravating and mitigating factors of the offending and the offender; and
• (b) the direct and indirect consequences of a conviction; and
• (c) whether those consequences are all out of proportion to the gravity of the offence.
  

10. Hawke's Bay Regional Council v Payne [2021] NZDC 7464.

[64] The Court of Appeal in R v Hughes11 has described s107 SA as a gateway through which any discharge without conviction must pass, and only if that stage is passed may the Court consider exercising the residual discretion to discharge without conviction under s106 SA.

[65] In opposing the application for the Regional Council, counsel referred to a number of relevant authorities, including Taranaki Regional Council v Collingwood,12 involving a prosecution for dumping demolition waste. The court described the s107 SA threshold in the following way:

Section 107 makes it very clear that a Court must not – and those are the words used in the section, “must not” – discharge a defendant without conviction unless it is satisfied that the direct or indirect consequences of a conviction would be out of all proportion

– and that is to be emphasised also, “out of all proportion” – to the gravity of the offence. That sets a very high test and it must be met before the discretion is available to be used.

[66] Counsel also referred me to the decision in Northland Regional Council v Hemi,13 a prosecution for disturbing the foreshore and seabed, observing that it is rare for a defendant to be discharged without conviction on an RMA prosecution, because the public interest in making it clear that the RMA is to be complied with outweighs

personal disadvantage.

[67] As to the first of these s107 SA matters, I have set out my findings on that earlier in this decision and will not repeat it here.

[68] As to the direct and indirect consequences of a conviction, Mr Semenoff has sworn an affidavit detailing the contributions he has made to the local community, as well as the efforts he made to better the community while working at a government level with both the district and regional councils.

[69] He has been generous in the time and financial resource he has given for community activities, including through his support of local sports, local education,

11 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222, (2008) 24 CRNZ 179.

12. Taranaki Regional Council v Collingwood [2016] NZDC 16616 at [16].
13. Northland Regional Council v Hemi DC Kaikohe CRN05027500229, -230, 21 November 2005.

local arts and the town generally, all of which have been a great source of pride and mana for Mr Semenoff.

[70] In 2018, in recognition of the service he has provided to the Whangarei community, Mr Semenoff was awarded the Northland Chamber of Commerce Lifetime Achievement Award, which he states was a very proud moment for him and solidified his personal legacy which he had spent 40 years building.

[71] In his affidavit, Mr Semenoff deposes that he is fearful that a conviction, if entered for this offending, will severely diminish his legacy and his reputation. Counsel submits that this being a real and appreciable risk, would be all out of proportion to the offending such that the application for a discharge without conviction should be granted.

[72] Counsel referred to cases where the courts have recognised the stigma of a conviction and the impact of a conviction on a person’s character and mana are consequences to be considered in a s106 application, citing the decision of Watene v NZ Police14 as a more recent example. Some of these cases were in a criminal context, not involving regulatory offending as in this instance.

[73] I was also referred to the decision in Otago Regional Council v Cockroft15 which counsel submitted is directly applicable to the current facts, because Ms Cockroft was also found guilty after a defended trial of two charges relating to discharge of contaminants into air from unauthorised burning.

[74] In that case, Ms Cockroft lit the fire which involved the burning of green material being trimmings from trees, vines, brush and similar, although five tyres were also burned in the fire which occurred on the defendant’s vineyard.

[75] Judge Dwyer had accepted the stigma of a conviction was a real or potential consequence that he was obliged to consider, along with the need for deterrence. The court found that the bulk of the material burnt in the fire was natural trimmings from

14. Watene v NZ Police [2022] NZHC 1558 at [26].
15. Otago Regional Council v Cockroft [2015] NZDC 20608.

the trees grown on site, and that she was unaware that the pile contained five car tyres, that were also burnt. The defendant had been co-operative, was supervising the fire, and had put it out promptly. The Council had put the offending at the lowest end of the scale of seriousness.

[76] However, for the Council, Ms de Silva submitted that in this case an important public interest issue is the need for general deterrence in relation to unlawful burning. I agree that the need for general deterrence for offending of this kind is a very relevant matter to be considered in this context.

[77] I am also mindful of the observations made by (former) Environment Judge Harland in the decision of Waikato Regional Council v Hold the Gold Limited (‘Hold the Gold’).16 This case involved the sentencing on charges of unlawful disturbance of the bed of a river in the course of implementing enhancement works which had attracted wide community support. An application for discharge after conviction had been sought in terms of s108.

[78] Following a guilty plea, the defendant then followed a restorative justice process as a result of which the parties both submitted that the defendant should be convicted and discharged, in light of the positive outcome for the environment through the remediation works. The court declined to do that and in its decision, it made the point that:17

Parliament has enacted the Resource Management Act, which provides for contraventions of certain sections of it to be offences. The Act applies to all people, whether they are of good character or not.

[79] Hold the Gold was referred to by Mr Atkinson in support of the s106 application in light of the court’s observation (made in the context of a s108 application) that:18

16. Waikato Regional Council v Hold the Gold Limited DC Hamilton CRN-14019501673, -1674, 19 December 2014.

17 At [30].

18 At [47].

... it is the effects of the offending on the environment that is the most relevant consideration.

[80] Counsel points to the finding of no actual environmental effects in this case, which is said to be a factor weighing heavily in favour of the s106 application. However, the comment is taken out of context. I do not read that decision as supporting the proposition advanced by Mr Atkinson here.

My evaluation

[81] The direct and/or indirect consequences of conviction need not be determined to any legal standard of proof, although I must be satisfied that there is a real and appreciable risk of consequences other than those that would ordinarily follow a conviction. It is in this regard that the application must fail.

[82] Mr Semenoff has a very strong local reputation and has undoubtedly made valuable contributions to his community over the years. Although he may fear that his name will be tarnished by a conviction, that is not a consequence I can take account of in this context. I accept there will always be a stigma associated with a conviction, which may be felt quite strongly by persons who have a strong location reputation as Mr Semenoff evidently does.

[83] However, it must also be borne in mind that convictions for offences under the Resource Management Act do not carry overtones of dishonesty or immorality or violence; they are regulatory offences, and to adopt the observation made by the court in the Collingwood 19case, on this occasion Mr Semenoff has lapsed and that is that.

[84] I find that the disproportionality requirement is not made out on the evidence before me. Accordingly, the s106 application is declined and a conviction is hereby entered for the offending.

19. Taranaki Regional Council v Collingwood [2016] NZDC 16616.

Section 41(1)

[85] As one of the final matters to consider, Ms de Silva submitted that in terms of s40(1) SA in considering the financial capacity of the offender, I have to consider whether that has the effect of increasing or reducing the amount of the fine. Counsel contends that Mr Semenoff’s financial capacity, as indicated by the total capital value of land owned by him ($3,525,000), together with the value of land he owns with Northland Trustee Ltd ($11,655,000) is significant, such that a 30% uplift should be applied to the starting point.

[86] This was strongly resisted by Mr Atkinson, given that Mr Semenoff is being prosecuted as an individual, whereas the decision relied upon by Ms de Silva involved a large corporate entity, (Waikato Regional Council v Fletcher Concrete and Infrastructure Ltd (‘Fletcher Concrete’)).20 Counsel argues that the size of that company, bears no comparison to the Semenoff Group of Companies, and in that case, the company was being fined.

[87] In Fletcher Concrete, the 30% uplift was found to be appropriate given the deterrence aspect of the financial penalty, both to the offender and in general. A penalty must send the message that penalties imposed for offending under the RMA will not be dismissed as a cost of doing business.

[88] In the circumstances of this offending, while I accept that there is no need for specific deterrence against Mr Semenoff, for reasons explained in his affidavit and in his counsel’s submissions, there remains a need for a general deterrence given the frequency with which unlawful outdoor burning occurs within this region.

[89] However, despite the clear need for a general deterrence, any penalty imposed by the court must be commensurate with the circumstances and environmental effects of the offending.

[90] In this case, the principles and purposes of sentencing are adequately met by a

20. Waikato Regional Council v Fletcher Concrete and Infrastructure Ltd [2021] NZDC 20760.

penalty set with a global starting point of $16,000 for both of the charges, (applying the totality principle) without the suggested further uplift.

Mitigation – good character/guilty plea

[91] Mr Semenoff has no previous convictions although his company has been the subject of previous enforcement action for unlawful burning, albeit some time ago, which Mr Semenoff was aware of, although no uplift is sought on that basis. However, this factor must be balanced when considering the requested discount of 10% for good character and contribution to the community.

[92] Mr Semenoff has now recognised the need to inform staff about the Regional Council’s rules on burning, and has acted on that, although this has only come about since I delivered my verdict finding him guilty, after a defended hearing almost two years after the offending occurred on 3 June 2020.

[93] I also acknowledge Mr Semenoff’s vast contribution to, and standing in the community, and has no prior convictions, which is warrants some recognition, although I determine that a discount in this case is not warranted for mitigating circumstances beyond a level of 3%.

Outcome

[94] I have adopted the two-step methodology outlined by the Court in Moses v R.21

[95] Having declined the application for a discharge without conviction under s106 SA, I convict Mr Semenoff and impose a fine of $15,520.

[96] I direct that 90% of the fine be paid to the Regional Council in terms of s342 of the RMA.

[97] The defendant will pay solicitor as per the Costs in Criminal Cases

21 Moses v R [2020] NZCA 296 at [45]- [47].

Regulations, to be fixed by the Registrar if need be, and court costs of $130.

P A Steven

District Court Judge and Environment Judge