Auckland Council v Liu [2017] NZDC 22882 (25 October 2017)

Last Updated: 30 April 2018

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

IN THE DISTRICT COURT AT AUCKLAND

CRI-2015-004-009029

[2017] NZDC 22882

AUCKLAND COUNCIL PROSECUTOR

v

DONGHUA LIU FIRST DEFENDANT KELLY RONALD PARSONS SECOND DEFENDANT RONCON PACIFIC HOTEL MANAGEMENT LIMITED THIRD DEFENDANT

Hearing:	14 September 2017
Appearances:	B Watts for the Prosecutor F Pilditch for First and Third Defendants JM Savage for Second Defendant
Judgment:	25 October 2017

NOTES OF JUDGE DA KIRKPATRICK ON SENTENCING

Introduction

[1] In reserved decision dated 25 May 20171 I found each of these defendants guilty of the charge of the excavation of holes into a basalt stone retaining wall at [address deleted] without a resource consent, thereby breaching Activity Table 1 of Chapter J, Part 3 of the proposed Auckland Unitary Plan (AUP) (relating to

1 Auckland Council v Liu & ors [2017] NZDC 10864

modifications to buildings or structures or the fabric or features of a Category B scheduled place). This is an offence under s9 and s338(1)(a) of the Resource Management Act 1991 (RMA), subject to a maximum penalty under s339(1) of that Act:

(a) in the case of a natural person, of imprisonment for a term not exceeding 2 years or a fine not exceeding $300,000; or

(b) in the case of a person other than a natural person, of a fine not exceeding $600,000.

These levels of penalty mean that the offence is in Category 3 as defined in s6 of the Criminal Procedure Act 2011 (CPA).

[2] The defendants appeared for sentencing on 14 September 2017. I regret that for personal reasons I have been unable to deliver my decision before now.

[3] I will not repeat the background to the charges against these defendants, or the basis on which I found them guilty; for that, refer to the earlier reserved decision.

Issues raised on sentencing

[4] The main issues raised by counsel in submissions for these sentencings include:

• (a) Whether either the first defendant or the second defendant, or both of them, should be discharged without conviction under s106 Sentencing Act 2002 and the proper approach to the threshold for such a discharge under s107 of the Act, both generally and in this case;
  
• (b) Whether the context for the level of any sentence should be all possible offences or all Category 3 offences, or the more limited context of similar offences under the RMA; and

• (c) Whether the gravity of the offending by and the culpability of these defendants was reduced by the complexity of the AUP rules or offset by the work done to reinstate the wall, or both.
  

Submissions for prosecutor

[5] Mr Watts for the prosecutor reminded me of the purposes and principles of sentencing as set out in ss 7 and 8 of the Sentencing Act 2002, and the guidance as to the application of those purposes and principles in Machinery Movers Limited v Auckland Regional Council2 as updated in Selwyn Mews Limited v Auckland City Council.3 He emphasised the purposes of denunciation, deterrence (both general and specific) and consistency of sentencing. He referred me back to paragraphs [34]-[36] of my reserved decision setting out the evidence of a covenant registered on the title of the subject property for the protection of, among other things, the stone wall and steps within Covenant Area C.

[6] At paragraph [37] of the reserved decision, I noted that none of the charges against the defendants related to this covenant, and I accepted the submission of Mr Savage who was, at that hearing, counsel for all defendants that the covenant was irrelevant to the elements of the offences. I consider, however, that the covenant is relevant evidence of notice to the registered proprietor and to any other person dealing with the title to the property of the restrictions set out in it. In that context, the prosecutor expressed exasperation that any of the defendants might, at this stage, still claim to be entitled to place a fence on the boundary of the property and, in the course of that, to damage the stone wall and steps. Mr Watts referred to the decision in Auckland Council v Donghua Liu4 where His Honour Judge Dwyer referred, at paragraphs [14]-[15] and [21], to similar submissions being made by the first defendant which were not accepted by the Court in that case.

[7] Mr Watts acknowledged that the second defendant, as a contractor, might be regarded as less culpable, but that given the scheduling of the property in the AUP for protection, as well as the presence of the covenant on the title, there was no excuse for

2 [1994] 1NZLR 492.

3 (District Court, Auckland CRI-2013-404-159, 30 April 2004.

4 CRI-2014-004-005460, 2 October 2014.

the second defendant’s professed ignorance of such protections. In any event, the offence is one of strict liability under s341 RMA so that the offence does not require proof of the defendant’s intention to commit an offence.

[8] The prosecutor challenged the written submissions lodged in advance of the sentencing hearing on behalf of the defendants in a number of respects. He submitted that they took a dismissive tone to the protection of heritage values, notwithstanding the protection of those values by the AUP and the expert evidence in support of the effects on those values presented at trial. He submitted that it was not open to the defendants to second-guess the contents of the AUP. Further, the repairs that had been done by the defendants to the wall and steps did not remove the harm that had been done in terms of the rules in the AUP. While the heritage items might appear to be the same as they were previously, he submitted that a replica did not possess the same heritage values as the original heritage item.

[9] In response to submissions as to the prosecutor’s choice to proceed by prosecution rather than infringement notice, he pointed out that the maximum level of penalty under the Resource Management (Infringement Offences) Regulations 1999 for a contravention of s9 RMA, being an infringement fee of $300, was not considered by the prosecutor to reflect the seriousness of this offending. I note that this is a matter within the prosecutor’s discretion.

[10] In response to submissions which noted that a number of charges had been withdrawn before trial, Mr Watts submitted that this was beside the point and that, during the process of review of a district plan, it was always likely that there might be a doubling of the charges because s 9 of the Resource Management Act 1991 requires compliance with the rules in both an operative and a proposed plan, subject to the commencement of proposed rules in terms of s 87B RMA.

[11] In response to the applications by the first and second defendants for discharges without convictions, Mr Watts referred to the decisions in Edwards v R5 and Brunton v Police6 where the higher Courts had stressed the requirement for relevant and

5 [2015] NZCA 583.

6 [2012] NZHC 1197.

probative evidence that a conviction would have a disproportionate impact on a person’s ability to travel rather than matters of speculation. He submitted that the evidence and submissions being advanced on behalf of the defendants did not demonstrate any disproportionate effect.

[12] For the first defendant, delays in his partner’s application for residency in New Zealand had been overcome by provision of further information. His membership of the Asia Pacific Economic Council, and his entitlement to a business travel card would be affected, but that was because Mr Liu, if convicted, would be a repeat offender and therefore not entitled to the benefits under the Criminal Records (Clean Slate) Act 2004. The prosecutor’s submission about the travel card was that being put in the same position as other travellers did not amount to undue hardship.

[13] In relation to the application by the second defendant, the prosecutor pointed out that prior unrelated convictions for drink-driving had not prevented his overseas travel and that in his capacity as a self-employed builder it was not apparent whether he would have to disclose any conviction for an offence under the RMA, as distinct from a conviction for a crime involving “moral turpitude”, as discussed in more detail below.

[14] Mr Watts also referred to a recent decision of the High Court in Ma v Auckland Council,7where Brewer J stated:

This test raises a high threshold between an offender and a discharge without conviction. It is not enough to satisfy the judge that the consequences of a conviction would be disproportionate to the gravity of the offence. The judge must be satisfied that the consequences would be out of all proportion to the gravity of the offence. [emphasis in original]

[15] As to sentence, the prosecutor relied on the decisions in Ling v Christchurch City Council 8 and Waitakere City Council v Poulton.9

[16] In the prosecutor’s submission, the relevant corresponding elements for the purposes of consistency of sentencing were the degree of negligence shown by the

7 [2017] NZHC 1274.

8 (High Court, Christchurch) CRI-2004-409-000212, 2 December 2004, Panckhurst J.

9 (DC Auckland) CRI-2007-090-009589, 4 April 2008, Judge FMW McElrea.

defendants, the level of deliberateness in their actions and the loss of heritage value. On the basis of those decisions he submitted that a starting point of $10,000 on a global basis was appropriate for a natural person.

[17] In relation to the accepted fact that the defendants had undertaken remedial work at a cost of approximately $45,000, the prosecutor accepted that a discount was appropriate. He noted, however, that such a discount should not be on a dollar-for- dollar basis, citing Canterbury Regional Council v Steelbro NZ Limited10 where the distinction between reparation and a penalty was drawn in paragraphs [26]-[28]. The prosecutor noted that if there had been no remediation of the wall and steps, then it was likely that the prosecutor would have sought enforcement orders to require that work to be done. As that work had been done by the defendants voluntarily, Mr Watts submitted that a 20 per cent discount was appropriate.

[18] In relation to other matters of aggravation and mitigation, Mr Watts submitted that the first defendant should receive a 20 per cent uplift on any fine to recognise his previous offending, but that the second defendant should receive a 10 per cent discount for good character.

[19] In terms of relative culpability, the prosecutor submitted that an apportionment of 80-20 would be appropriate, with the first defendant bearing the larger share of the penalty to reflect the need for both general and specific deterrence of a person in his position as the controlling mind of the landowner and employer of contractors, and Mr Parsons as the employed contractor bearing the smaller portion. On that basis, the prosecutor noted that the discount for remedial work and the uplift for previous offending effectively cancelled each other out, leading to a level of fine of $8,000. In the case of the second defendant, the result would be a fine of $1,800.

[20] Mr Watts sought the usual order under s 342 of the RMA for 90 per cent of the fines to be paid to the prosecutor.

10 (High Court,. Christchurch) CRI-2006-409-00232, 28 February 2007, Panckhurst J.

Submissions of first defendant

[21] Mr Pilditch commenced his submissions by noting that, under the provisions of the Sentencing Act 2002, it is necessary for the Court to give prior consideration to a discharge without conviction under ss 106 – 107, both in terms of the clear wording of s 106 and as being consistent with the sentencing principle of imposing the least restrictive sentence for the offending.

[22] Mr Pilditch went on to submit that because these provisions apply to any crime or offence under any legislation, the assessment of the gravity of offending should be made against the whole range of all offending against New Zealand law. While the charges in this case arise within what might be described as a specialist jurisdiction, requiring a focus on the circumstances of such offending, the assessment of the gravity of the offending was not limited to that.

[23] When I asked Mr Pilditch for any authority for this approach to the context of sentencing, he referred to the provisions of the Sentencing Act 2002 and in particular the breadth of the phrase “the gravity of the offence”. He submitted that it was important to put the approach to sentencing in this broader context, otherwise this Court would act in error. He acknowledged that it was very rare for persons to be imprisoned for offences under the RMA, and also that the level of fines under the RMA could be much higher than for other types of offending. Nonetheless, he submitted that criminal convictions are themselves grave things and that the range of offences classified as category 3 under the CPA encompassed a very broad range of matters. So it was his submission that the Court must consider the gravity of the offending in that broader context and not just in the specialist context of the RMA.

[24] In assessing the gravity of offending and the consequences of sentencing, he submitted that the less grave the offence, the less significant should be the consequences. He submitted that this offending was at the lowest end of the scale considering the nature of the environment. He characterised the offending as being a lack of inquiry before taking the natural step of erecting the fence on the boundary. Asked about the covenant on the title and its effect as notice, he noted that the language

was not specific and submitted that the offending was a product of a naïve but understandable belief as to the defendant’s ability to erect a fence on a boundary.

[25] In relation to remediation, he pointed out that the same stones had been used to rebuild the wall, so that it is better described as a reconstruction than as a replica. In relation to the damage to the steps, he submitted that these were not sufficiently particularised in the charging document. A charge must contain sufficient particulars to fully and fairly inform the defendant of the substance of the alleged offence.11 The fact that the charge only referred to the wall and not specifically to the steps means that the damage to the steps is not a relevant matter in this proceeding. (I note that this point was not raised at trial). On that basis he submitted that the loss of intrinsic values was only a relevant factor to the extent that the resource had not been reinstated. He further submitted that the fact that the defendants did not wait to remedy their wrongdoing was a powerful feature against the gravity of the offending.

[26] In relation to the degree of culpability, Mr Pilditch was critical of the language used by the prosecutor, noting that “gross negligence” is a phrase normally used to describe a state of mind and is not apt to be applied to an offence of strict liability. Rather, in characterising the scale or degree of culpability, Mr Pilditch said it should properly be described as a want of care, without being elevated by inapt descriptors.

[27] In relation to the prosecutor’s submissions about the process that was followed, Mr Pilditch submitted that it was always open to a defendant to test the extent of rules and their application, but that the approach taken at trial was not to prolong proceedings. Again, he pointed to the fact that the defendants had taken steps to repair the wall, and incurred costs more than four times the level of the fine proposed by the prosecutor.

[28] In relation to the first defendant’s application for a discharge without conviction, Mr Pilditch noted that the consequence of a conviction would continue to dog the defendant both directly through the legal consequences that follow from a conviction, and indirectly through the burden of bearing a black mark on one’s record and the regular requirement to explain the nature and circumstances of the offending.

11 As required by s17(4) CPA.

In his submission, it was not necessary for a defendant to identify a specific outcome. He pointed to the first defendant’s evidence of problems with his partner’s application for residency, his ability to travel between China and New Zealand, and the operation of the clean slate legislation. In his submission, these matters were not just inconvenient, but unwarranted and therefore out of all proportion to the gravity of the offending.

[29] In relation to the level of fine submitted by the prosecutor, Mr Pilditch very fairly said he would not quibble with that, but he was critical of the way in which the matter had been dealt with, on the basis of his submission that a conviction was not necessary in the circumstances of this case. He noted that the prosecutor sought that the third defendant company be convicted and discharged, but that the prosecutor appeared determined that there be a penalty personal to the first defendant. In those terms, counsel submitted that the first defendant could donate the same amount to some appropriate charity, such as Pouhere Taonga/NZ Heritage Trust either as reparation or as a voluntary donation. In terms of the principle of deterrence, counsel submitted that the cost of the whole process was a more than adequate signal, both to the first defendant and to others in the community.

Submissions of second defendant

[30] Mr Savage for the second defendant adopted the submissions of counsel for the first defendant. In relation to the particular role played by the second defendant, he submitted that the gravity of the offending fell at the lowest end of the scale. He said there was no lasting harm, and pointed out that the prosecutor’s expert had only inspected the site shortly after the offending, and had not returned to see the remedial work. He noted that the prosecutor, in its role as the consent authority, had provided confirmation at trial that the remedial work had been carried out in accordance with the resource consent granted for that purpose.

[31] Mr Savage submitted that the complexity of the plan provisions was relevant, and that the interlocutory applications and dismissal and withdrawal of a number of the charges demonstrated that the prosecutor itself did not fully appreciate the true extent and application of these rules. He submitted that a conviction of the second

defendant would be for a document in a formative stage, and pointed to paragraph [59] of my reserved decision.

[32] He submitted that the second defendant had acted according to advice given by a surveyor as to the location of the site boundary, and by a planning officer as to the permitted height of the fence.

[33] In relation to the character of the defendant, counsel submitted there was an extreme unlikelihood of re-offending, pointing to the absence of any record of offending under either the RMA or the Building Act 1991/2004.

[34] In relation to the application for discharge without conviction, counsel highlighted the personal circumstances of the second defendant, including the possibility that he might emigrate to live in the United States, such possibility being made distinctly uncertain by the prospect of a conviction. The second defendant sought to retain a clean record in any event given the nature of his work as a builder.

[35] In relation to alternatives, counsel made the same proposal as raised by Mr Pilditch on behalf of the first defendant, and confirmed that his client took no issue with the level of fine proposed by the prosecutor.

Prosecutor’s reply

[36] Mr Watts for the prosecutor raised four points in reply.

[37] In relation to the gravity of the offending and the submission that the offence should be considered against the background of all possible offences, counsel submitted that caution must be applied otherwise the result could be that all offenders under the RMA might be discharged without conviction. In his submission, a better approach would be to look at the range of penalties specifically provided for in the relevant legislation and the nature of the potential offences.

[38] Counsel accepted that his use of the phrase “gross negligence” had been loose, and not correct in a technical sense. He had no objection to characterising culpability

in this case as amounting to “want of care,” and simply noted the issue of an assessment of fact and degree under that broad umbrella.

[39] Counsel also accepted that the original range of charges laid against the defendants, and the subsequent dismissal and withdrawal of a number, was fair, but submitted that in any event it was not relevant to an assessment of the gravity of the offending for which the defendants have been found guilty.

[40] In relation to the alternative approach as suggested by the defendants, Mr Watts expressed concern on behalf of the prosecutor of losing sight of the purpose of deterrence. In his submission, it is axiomatic that a conviction forms part of the penalty, together with its consequences, and in his submission this is an appropriate case for convictions.

[41] Asked about proportionality, Mr Watts pointed out that both the first and second defendants are involved in the development business, and that the consequences of this offending are therefore relevant to their conduct in that business and the conduct of others. He submitted that it would not be appropriate for defendants to simply donate their way out of being convicted.

Discussion

[42] I accept Mr Pilditch’s submission that the consideration of a discharge without conviction should occur at the outset of a sentencing in terms of the wording of s106 Sentencing Act 2002 and the principle in s8(g) of that Act that the Court must impose the least restrictive outcome (as set out in s10A of the Act) that is appropriate in the circumstances.

[43] In considering their applications for discharges, I must consider the three step approach set out by the Court of Appeal in Z v R.12 The relevant context for assessing the gravity of the offending includes the relevant mitigating or aggravating factors and the degree of culpability of the offenders in the same way that those matters would

12 [2012] NZCA 599.

also apply to any other sentence. These must be specifically considered so that I can properly address the threshold requirement in s107 Sentencing Act 2002:

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[44] In relation to the gravity of the offending, I do not accept the submission that this offending is to be considered against the whole range of all offending against New Zealand law. Such an approach would be contrary to the purposes of sentencing or otherwise dealing with offenders in s7 Sentencing Act 2002, especially the purposes of accountability, denunciation and deterrence, because such an approach would tend to make almost any offence under the RMA seem less grave by comparison with other offending such as Category 4 offences listed in Schedule 1 to the CPA. Such an approach would also be contrary to the principles of sentencing in s8 of the Act, especially the general approach of requiring consideration of the circumstances of each case and the desirability of consistency of sentences in respect of similar offenders. In my judgment the correct context of an offence is to be ascertained by reference to the statute that creates it rather than to other statutes. The Court must proceed on the basis that Parliament, in enacting provisions which create offences and set the maximum penalties for such offences, has done so in a way that takes into account the range of offences against New Zealand law and the range of levels of maximum possible penalties. On that basis, it is not appropriate for the Court to attempt to adjust either of those ranges through the sentencing process as that would trespass into the legislative estate: the Court’s role is to sentence offenders within the range that Parliament has set for that offence.

[45] In this case I accept the prosecutor’s submission that the relative gravity of this offending is at a moderate level. It is lower than, for example, the complete and irremediable destruction of a heritage item or, by analogy, serious cases of unlawful discharges which have adverse effects on the natural environment well beyond the site. On the other hand, it is not at the lowest level of offending under the RMA when seen in the context of the protection of historic heritage from inappropriate use, in terms of the matter of national importance identified in s6(f) RMA.

[46] In reaching the view that this offending falls somewhere in the middle of the range, I acknowledge that damage to or, especially, destruction of protected heritage items can have wider social and cultural effects. In this case the damage to the wall has been repaired and the steps have been reconstructed. On one level the prosecutor is correct to submit, in general terms, that damage to a heritage item may be irremediable given that a damaged item is no longer the same as it was before the damage. In that sense, the integrity of the thing has been changed and thus its heritage value, being the quality of what is inherited from previous generations, has been diminished or even lost. On another level, some distinction can appropriately be drawn between a loss which is obvious to any person, such as the total destruction of a heritage item, and one which may only be discerned by a forensic inspection or by other specialist knowledge on the part of someone examining a reconstructed or replica item. In this case the repair, reconstruction or replication of the tangible elements of the wall and steps does mean that the loss of some of the intangible elements is not as grave as it might otherwise have been, but there has still been some loss. My view would not alter if the steps were excluded from consideration.

[47] In relation to the direct and indirect consequences of a conviction, I take into account the evidence and submissions in relation to the culpability of the offenders. I do so in terms of the principle of consistency of treatment of offenders. This is on the basis that the consequences of a conviction for a person with lower culpability for the offending could be regarded as greater (potentially disproportionately so) than those for a person with greater culpability.

[48] In that regard I find it difficult to accept the submissions of both counsel for the defendants that the offending was simply because of some kind of naivety on their part, or some difficulty in understanding the rules in the AUP that apply to the property. The wall was not only scheduled in the AUP, but was also the subject of a covenant registered against the title to the land. The first defendant, in particular, must be taken to have express notice of that protection. While the second defendant may not have had the same degree of knowledge, in his role as a builder he ought to have been on enquiry about the existence of controls of the kind that often apply to older structures in the city. Even so, I accept that his level of culpability should be assessed as substantially less than that of the first defendant.

[49] I accept Mr Pilditch’s submission, as did Mr Watts in reply, that the phrase “gross negligence” is not apt where the offence is one of strict liability, and that “want of care” may be a better description, still allowing for the assessment of degree according to the facts of the case.

[50] In terms of further consequences, I respectfully note the authorities cited by Mr Watts, referred to above. It is in the nature of the criminal justice system in New Zealand that a conviction will carry with it a sting for the offender and also be a black mark on one’s record, at least until the provisions of the Criminal Records (Clean Slate) Act 2004 may apply. This may create some stigma in the eyes of the community. That is inherent in the purposes set out in s7 Sentencing Act 2002, especially the purposes of accountability, denunciation and deterrence. It does not, by itself, result in an effect which is out of all proportion to the gravity of the offending.

[51] Mindful of the clear statements of the Court of Appeal in Edwards v R referred to above, I am not satisfied that the potential for the prevention of or restrictions on travel to other countries is likely to be as great as submitted by counsel for the defendants. I take into account that some countries require disclosure of charges rather than convictions, so that the benefits of the clean slate legislation in New Zealand may not have any effect at the borders of those countries, but I do not speculate about that broader issue. While treating offences under the RMA as serious, I am not satisfied that they could be said to involve “moral turpitude”, which appears to be the critical factor at the border of the United States of America, at least.

[52] While I accept that the second defendant’s culpability is substantially less than that of the first defendant, I am not satisfied that it is so low as to make the consequences of a conviction out of all proportion to the gravity of the offending.

[53] I am not satisfied that the matters raised by the first and second defendants in evidence and submissions are beyond the range of consequences that would normally be associated with a conviction for an offence under the RMA.

[54] For those reasons I refuse both applications for discharges without conviction under s106 Sentencing Act 2002.

[55] In relation to the third defendant, a company, the Prosecutor sought a conviction and discharge. As noted, this was criticised by counsel for the first and third defendants on the basis that a better outcome could be achieved by reparation or voluntary donation than by pursuing a fine against the first defendant.

[56] There are several issues that arise where both a corporation and the main person in the governance of that corporation are charged. This is not an appropriate case in which to attempt to resolve all of those issues. It is sufficient in this case to observe that the RMA, in the look-through provisions providing for the liability of a principal for the acts of an agent in s340(1)(a) and (3), treats principals and agents the same way (subject to defences that were not raised in this case). I am not satisfied that there are any reasons, based on either the purposes and principles of sentencing or on my assessment of the culpability of the defendants, to treat the first and second defendants any differently because of the charge against the third defendant or the prosecutor’s submission that there be no fine imposed on the company.

[57] In terms of the starting point for sentence, I accept that the level of fine submitted by the prosecutor of $10,000 on a global basis is appropriate in this case, having regard to the limited range of comparable cases identified in submissions. This level was not disputed by counsel for the defendants. I also accept counsel’s submission that this global fine should be apportioned between the first and second defendants in the ratio of 80 – 20 respectively, with no apportionment to the third defendant. I agree that an uplift of 20% is justified in respect of the first defendant for his recent previous conviction under the RMA, while a discount of 10% is appropriate for the second defendant who has no such record.

[58] I also accept the prosecutor’s submissions in relation to an appropriate discount of 20% to the first defendant for the voluntary work of reconstructing the wall and steps. I acknowledge that the cost of this work was significantly greater than the fine, but I also accept the prosecutor’s submission that it is not appropriate to conflate repair or reparation costs with a fine or other penalty.

Sentence

[59] For the foregoing reasons, in relation to the charges against each of them of the excavation of holes into a basalt stone retaining wall at [address deleted] without a resource consent, thereby breaching Activity Table 1 of Chapter J, Part 3 of the proposed Auckland Unitary Plan (relating to modifications to buildings or structures or the fabric or features of a Category B scheduled place):

• (a) In respect of the charge in CRN 15004503395, I convict the first defendant Donghua Liu and sentence him to pay a fine of $8,000;
  
• (b) In respect of the charge in CRN 15004503381, I convict the second defendant Kelly Ronald Parsons and sentence him to pay a fine of

$1,800; and

(c) In respect of the charge in CRN 15004503375, I convict the third defendant Roncon Pacific Hotel Management Limited and discharge it.

[60] Under s342 RMA I order that the fines be paid to the Auckland Council subject to a deduction of 10% to be credited to the Crown.

DA Kirkpatrick

District Court Judge and Environment Judge