The Queen v Borrett [2003] NZCA 281; (2004) 10 ELRNZ 133 (4 December 2003)

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The Queen v Borrett [2003] NZCA 281 (4 December 2003); (2004) 10 ELRNZ 133

Last Updated: 16 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA422/03THE QUEEN

v

ANDREW JOHN BORRETT

Hearing: 4 December 2003

Coram: Tipping J Panckhurst J Salmon J

Appearances: M J Hine for Appellant
J C Pike for Crown

Judgment: 4 December 2003     

Reasons: 10 December 2003

REASONS FOR JUDGMENT OF THE COURT DELIVERED BY SALMON J

[1] This appeal was against a sentence imposed in the District Court on charges relating to contravention of an interim enforcement order and contravention of the Rules of the Waitakere City Proposed District Plan. The appellant and his wife were found guilty after trial by a jury in respect of these charges. Fines and costs totalling $12,500 were ordered to be paid by Mrs Borrett. The appellant was sentenced to 20 weeks imprisonment and ordered to pay costs of $5,000. On 4 December 2003 the Court gave judgment allowing the appeal against sentence, substituting a prison sentence of 12 weeks and quashing the order for payment of costs. The following are the reasons for that judgment.

Background

[2] The appellant and his wife faced a number of charges relating to activities carried out on their property at 49 Sunnyvale Road, Red Hills, Waitakere City. They pleaded not guilty to all charges and elected trial by jury. Mr Borrett was found guilty on five of the seven counts that he faced and Mrs Borrett on four of the seven counts faced by her. Each count contained a representative charge dealing with the period between 17 November 1998 and 2 October 2001. The charges in respect of which the defendants were found not guilty related to operating a solid wasteland fill or depositing fill on the property. The charges in respect of which they were found guilty related to illegal earthworks and the illegal clearance of native vegetation. Several of the charges in respect of which verdicts of guilty were entered related to contravention of an interim enforcement order made on 2 February 1998 by the Environment Court. The remaining charges, in respect of which the appellant and his wife were found guilty, related to breaches of provisions of the Waitakere City Proposed District Plan.
[3] The appellant and his wife live on the property in respect of which the charges are brought. It is in a part of Waitakere City which has a special zoning designed to protect the natural landscape which includes important areas of native vegetation. The appellant has a history of contravention of the Council’s requirements. Over a period of about two and a half years from 1995, earthworks and vegetation removal activities were undertaken without the approval of the Council and eventually the Council applied for and obtained an interim enforcement order from the Environment Court.
[4] Over the same period an implement shed was built on the property, apparently legally, but a portion of that shed was turned into residential accommodation without the appropriate permit. Illegal earthworks continued on the site after the enforcement order was obtained and Mr and Mrs Borrett were charged with seven counts of contravening the provisions of the Waitakere District Plan. They pleaded guilty to the charges. Penalties were imposed totalling $16,500 in respect of each of them.
[5] The material before the Court indicates that the financial position of the appellant and his wife is not strong. Fines earlier imposed have been paid by instalments. At October 2003 some $9,000 remained unpaid.
[6] About three months after the above fines were imposed the appellant was charged with an offence in relation to the illegal residential component of the building and was fined $1,500.
[7] In his sentencing remarks in relation to the earlier offending, the District Court Judge noted the wilful nature of the offending, its duration over a period of two and a half years, the continuation of the offending after the enforcement order was obtained and observed that these facts pointed to obduracy on the part of the appellant and his wife and a complete inability to understand that their obligations under the Act were unconditional ones.
[8] That obduracy continued with further earthworks and bush clearance, resulting in the charges that are the subject of this appeal.

Sentencing remarks

[9] The District Court Judge who sentenced the appellant and his wife in respect of the current offences noted the extent of the offending. He calculated that the total clearance of native bush was between 250 to 1,000 square meters. He recorded that the earthworks were very extensive and affected four areas of the site. He described the defences raised by the appellant as spurious. They involved blaming other people or trying to blame other people for his own conduct. The Judge said that the appellant:

By his evidence in the witness box demonstrated that he was someone who refuses to take responsibility for his own conduct and ... showed in his evidence no remorse or apparent recognition of the damage that he had done.

[10] The Judge noted that s339 of the Resource Management Act 1991 provided a maximum penalty for the offences of a sentence of two years imprisonment or a fine not exceeding $200,000 per offence. He referred to the previous convictions and the penalties imposed in 1999. He referred to the following aggravating factors:

1. The deliberate nature of the offending and the fact that the appellant and his wife knew that they were acting in breach of the interim enforcement order and of the District Plan.
2. The extent of the damage inflicted.
3. The nature of the environment affected. This was a reference to the special zoning and the fact that the majority of the property was classified as being a protected natural area in the foothills of the Waitakere Ranges.
4. The lengthy period of the offending.
5. The previous convictions under the Act.

[11] He recorded that Mrs Borrett’s role was more limited than that of her husband. He referred to the decision of the full Court of the High Court in Machinery Movers Ltd v Auckland Regional Council [1994] 1 NZLR 492 and the passage at page 500 of that case where it was held that the increased penalties in the 1991 Act:

...constitute a clear legislative direction to the Courts to ensure that higher penalties are imposed which will have a significant deterrent quality. If fines are too low they will be regarded as a minor licence fee for offending and convey the idea that the law may be broken with relative impunity.

[12] He referred to the fact that by a consent memorandum, dated 9 October 2003, the defendants had agreed to undertake remedial measures, including removal of some of the material dumped on the property and the replanting of four areas as well as a weed eradication and control programme. He recorded that the Court gave credit for the agreement that had been reached to try to repair some of the damage to the property and that he was required by the Sentencing Act to take into account any offer of amends.
[13] After noting the submissions made by counsel for the appellant he imposed the penalties referred to earlier in this judgment. In doing so he recorded the strength of the aggravating factors, but also the fact that the personal circumstances of the defendants were not strong and that they have a family of four children. He refused to grant leave to apply for home detention in respect of the prison sentence imposed upon the appellant.
[14] So far as the costs orders were concerned, he held that this was a case of special difficulty, complexity or importance which justified an order in excess of that provided for by the Costs in Criminal Cases Act 1967 and the Regulations made thereunder.

The submissions in this Court

[15] Mr Hine, for the appellant, in his written submissions took issue with some of the factual findings made by the District Court Judge. Ultimately, however, in his oral submissions he proceeded on the basis of the facts as found. He accepted too that the District Court Judge was right to describe the appellant’s actions as being a contempt of orders of the Environment Court. However, he took issue with the sentence of imprisonment submitting that it was inappropriate for a second offence to be visited with a term of imprisonment. He submitted that the Resource Management Act and the Sentencing Act both have a focus on education and rehabilitation. He pointed to the fact that community work is specifically mentioned in s339(4) of the Resource Management Act. He noted that prior to sentencing, agreement was reached as to remedial work to be undertaken and submitted that there was a strong community interest in that being achieved. He submitted that if a term of imprisonment was to be imposed it should not have been as much as 20 weeks and that it was not appropriate to impose a term of imprisonment and to make an order for costs as well.
[16] For the Crown, Mr Pike emphasised the flagrancy of the offending. He acknowledged that it was unusual to impose an order for costs, in conjunction with imprisonment but said that if the sentence was reduced a costs order might be appropriate. He emphasised that this was a case about contempt of Court orders and contempt for the environment and that the principle of deterrence was important.

Discussion

[17] Counsel for the appellant invited the Court to examine photographs of the site. We have done so. It is apparent from those photographs there has been extensive depositing of fill on portions of the site and a significant removal of trees. The main area affected is shown as having a variety of types of fill and significant weed infestations. It is apparent too, that there has been substantial cut and fill in converting what was previously a steep walking track into a four to five metre wide metalled road of lesser gradient. This has been cut through native bush.
[18] The appellant’s view seems to be that he is entitled to do what he likes on his land and that what he has done does not impact upon the wider environment. He is, of course, wrong on both those counts. The Resource Management Act recognises that the rights of a land owner are subject to broader public considerations. As to the wider environment, it can be destroyed by incremental activities such as those undertaken by the appellant.
[19] The special nature of the area in which the property is situated must be emphasised. The appellant is fully aware of the restrictions upon activities that may be undertaken in that area.
[20] There is no doubt that the history of activity on this site is one of contempt both for the provisions of the Resource Management Act and for orders of the Environment Court. It is appropriate in those circumstances that a significant penalty be imposed. We consider that the District Court Judge was entirely correct in determining that imprisonment was the appropriate response to the contempt shown by the appellant.
[21] We take the view, however, that what was required by the nature of the offending was a short prison sentence sufficient to make it clear to the appellant that the Courts would not countenance behaviour such as his, but no more than was required for that purpose. We consider that 20 weeks was excessive and we concluded that the appropriate term was one of 12 weeks imprisonment.
[22] As to the costs order, we note that the appellant and his wife still owe some $9,000 from the earlier fines imposed. Their circumstances are such that it is not possible to say that the appellant has the financial means to meet the additional imposition of a costs order. In those circumstances we concluded that this was not a case where a monetary penalty should be added to the prison sentence and for that reason we quashed the costs order. We concluded that in the circumstances a 12 week prison sentence was one that was appropriate for the offending. Accordingly, as earlier indicated the appeal was allowed to the extent of quashing the sentence of 20 weeks imprisonment and imposing in its place a sentence of 12 weeks and quashing the order for costs.

Solicitors:
Crown Law Office, Wellington