Hawke's Bay Regional Council v Mantell-Harding [2023] NZDC 25821 (23 November 2023)

Last Updated: 1 December 2023

IN THE DISTRICT COURT AT NAPIER I TE KŌTI-Ā-ROHE KI AHURIRI

CRI-2022-041-000388 [2023] NZDC 25821

HAWKE’S BAY REGIONAL COUNCIL Prosecutor

v

WILLIAM BRUCE MANTELL-HARDING Defendant(s)

Hearing:	11 October 2023
Appearances:	N Graham for the Prosecutor D O’Connor for the Defendant
Judgment:	23 November 2023

SENTENCING NOTES OF JUDGE D A KIRKPATRICK

Introduction

[1] In a judgment issued on 1 June 2023,1 I found William Bruce Mantell-Harding guilty of two charges:

• (a) In CRN22041500118, that on 28 September 2021 at 1050 Links Road, Pakowhai, through his agent or employee did discharge a contaminant into the air, namely smoke and its constituents, from a fire containing prohibited materials, in a manner that contravened a regional rule, namely Rule 20 of the Hawke’s Bay Regional Resource Management Plan, when such discharge was not expressly allowed by a national
  

1 [2023] NZDC 10813.

HAWKE’S BAY REGIONAL COUNCIL v WILLIAM BRUCE MANTELL-HARDING [2023] NZDC 25821

[23 November 2023]

environmental standard or other regulation or by a resource consent or by s 20A of the Resource Management Act 1991 (RMA); and

(b) In CRN22041500119, that on 28 September 2021 at 1050 Links Road, Pakowhai, through his agent or employee did discharge a contaminant namely smoke and its constituents, from an industrial trade premise, namely the business premises of Mantell-Harding Earthworks at 1050 Links Road, Pakowhai into the air when such discharge was not expressly allowed by a national environmental standard or other regulations, a rule in a regional plan or a resource consent.

[2] At the sentencing hearing on 11 October 2023, the defendant sought a discharge without conviction under s 106 of the Criminal Procedure Act 2011.

[3] In my ruling that day,2 I granted that application on the condition that Mr Mantell-Harding will, at a time to be set by the prosecutor, attend to the site he is directed to attend with two trucks, a digger and three workers, including himself, and provide work for the Hawke’s Bay Regional Council for three working days. I said in that ruling that I would provide a brief sentencing decision to record the matters that had been put before me at the sentencing hearing and to set out my reasons for granting the application. I now do so.

Legal framework

[4] There is no dispute as to the approach which the Court should take on sentencing under the Resource Management Act. In sentencing an offender, the Court must follow the two-stage approach as set out in Moses v R,3 first identifying the starting point incorporating any aggravating and mitigating features of the offence, and then assessing and applying all aggravating and mitigating factors personal to the offender together with any discount for a guilty plea (calculated as a percentage of the starting point). The two stages involve separating the circumstances of the offence from those of the offender.

2 [2023] NZDC 22261.

3 [2020] NZCA 296 at [45] – [47].

[5] All of the purposes and principles in ss 7 and 8 of the Sentencing Act 2002 must be borne in mind, as well as the purpose of the RMA to promote the sustainable management of natural and physical resources. Of particular relevance under the Sentencing Act 2002 are the purposes of accountability, promoting a sense of responsibility, denunciation and deterrence, and the principles relating to the gravity of the offending and the degree of culpability of the offender, the seriousness of the type of offence, the general desirability of consistency with appropriate sentencing levels and the effect of the offending in the community.

[6] As to the overall sentencing approach for offending against the RMA, Machinery Movers Ltd v Auckland Regional Council4 and Thurston v Manawatu- Wanganui Regional Council5 are the leading decisions of the High Court which provide a comprehensive summary of the applicable principles. Briefly, the RMA seeks not only to punish offenders but also to achieve economic and educational goals by imposing penalties which deter potential offenders and encourage environmental responsibility through making offending more costly than compliance. Relevant considerations include the nature of the environment affected, the extent of the damage, the deliberateness of the offence, the attitude of the defendant, the nature, size and wealth of their operations, the extent of efforts to comply with their obligations, remorse, profits realised and any previous relevant offending or evidence of good character.

Background and findings in 1 June 2023 decision

[7] The circumstances of the two charges are set out in my judgment issued on 1 June 2023, which should be read in conjunction with these sentencing notes.

[8] In this case, I found the defendant to be culpable for the fire on the property occupied by him at 1050 Links Road, Pakowhai. I found that the fire was of industrial waste material from the activities of the business which the defendant manages. The evidence at trial was that the offending produced adverse effects on the environment,

4 [1994] 1 NZLR 492 at 503 (HC).

5 HC Palmerston North CRI-2009-454-24, 27 August 2010 at [39] – [66] and [100].

including large amounts of smoke. The prosecution followed a complaint from the public and an investigation by Council officers.

Comparable cases

[9] Counsel for the prosecutor referred me to the following decisions of this court:

• (a) Hawke’s Bay Regional Council v Hastings Demolition Limited,6
  
• (b) Hawke’s Bay Regional Council v Santo Drainage and Contracting Limited,7
• (c) Hawke’s Bay Regional Council v Sankey,8
• (d) Hawke’s Bay Regional Council v Payne,9 and
• (e) Hawke’s Bay Regional Council v NZ Juice Group Limited.10
  

[10] All of these cases related to unlawful fires, with a number of them being lit on trade premises. A range of starting points between $15,000 and $20,000 had been adopted. On the basis of these decisions, counsel for the prosecutor submitted that an appropriate starting point would be in the range of $18,000 - $20,000.

[11] Counsel for the prosecutor noted that the business managed by the defendant had been the subject of three previous complaints of unauthorised burning, one of which resulted in an infringement notice and abatement notice being issued to a company of which the defendant was a director.

Application for discharge without conviction

[12] Counsel for the defendant presented submissions in support of a discharge without conviction under s 106 of the Criminal Procedure Act 2011. In terms of the threshold test in s 107 of the CPA, counsel submitted that the business which the defendant manages undertakes civil contracting work for the Department of

6 [2020] NZDC 20030.

7 [2020] NZDC 4414.

8 [2021] NZDC 4744.

9 [2021] NZDC 7464.

10 [2022] NZDC 16488.

Corrections. He said that if the defendant were to be convicted, then his ability to undertake that work would be severely curtailed or even prevented. An email from the director of asset management for the Department, together with a letter from a company which apparently carries out works for the Department was presented to me.

[13] Counsel for the defendant also submitted that as a result of the damage done by cyclone Gabrielle, a great deal of work remains to be done in Hawke’s Bay to remove silt and debris and submitted that the Regional Council needs all the help it can get. In these circumstances, counsel advised that the defendant offers to provide two trucks, a digger and three workers, including the defendant, to undertake such work as the Regional Council directs for two full days.

[14] In discussion with both counsel, counsel for the prosecutor confirmed that the Regional Council would be very grateful for such assistance as this. In response to my questions, counsel for the defendant indicated that the commercial value of two days of work by three machines and three workers would be approximately $11,000, while three days of work would be approximately $17,000. In response to my enquiry, counsel for the defendant advised that his client was willing to increase his offer to three days.

Evaluation

[15] The orthodox approach to an application for discharge without conviction is well settled. Sections 106 and 107 of the Sentencing Act 2002 apply. The established three stage analysis for discharge without convictions is: first, the gravity of the offending (taking into account all aggravating and mitigating factors of the offending and the offender); secondly, what are the direct and indirect consequences of a conviction on the defendant; and, thirdly, an assessment of whether those consequences are out of all proportion to the gravity of the offending. Overall, the Court retains a discretion to grant or refuse the application after considering those matters.

[16] In all the circumstances of this case, I find that the gravity of the offending is relatively low, while the direct and indirect consequences of a conviction, and in

particular, the likelihood that the defendant and the business he manages may be unable to undertake work for the Department of Corrections would be out of all proportion to the gravity of the offending.

[17] I repeat what I said to counsel during the sentencing hearing, that the apparent attitude of the Department of Corrections in refusing to engage a person who has been convicted of an offence under the RMA does not appear to be consistent with the purposes of rehabilitation and reintegration under the Corrections Act 2004. On the other hand, I appreciate that the Department must maintain the security of their facilities at all times.

[18] Moving then to the discretion under s 106 of the CPA, I consider that the offer to undertake relief work at the direction of the Regional Council counts strongly in favour of the exercise of my discretion.

[19] In any event, I am satisfied that it is the overall interests of justice in this case for the defendant to be discharged without conviction.

[20] As set out in my ruling dated 11 October 2023, the defendant was required, at a time to be set by the Hawke’s Bay Regional Council, attend at a site he is directed to attend with two trucks, a digger and three workers including himself and provide work to them for three working days. I directed that a joint report be filed by both parties no later than 11 December 2023 to confirm that three days of work had been satisfactorily completed.

[21] I have now received a joint memorandum of counsel dated 13 November 2023 confirming that this was done by 31 October 2023. The condition of my ruling having been met, the discharge of the defendant without conviction is confirmed and this matter is now concluded.

Judge D A Kirkpatrick

District Court Judge | Kaiwhakawā o te Kōti ā-Rohe

Date of authentication | Rā motuhēhēnga: 23/11/2023