Ministry of Health v The Lakehouse Restaurant Limited [2018] NZDC 13678 (11 June 2018)

Last Updated: 25 May 2019

IN THE DISTRICT COURT AT ASHBURTON

CRI-2018-003-000072

[2018] NZDC 13678

MINISTRY OF HEALTH Prosecutor

v

THE LAKEHOUSE RESTAURANT LIMITED Defendant

Date of Ruling:	11 June 2018
Appearances:	H McKenzie for the Prosecutor K McBride for the Defendant
Judgment:	11 June 2018

SENTENCING NOTES OF JUDGE J E MAZE

[1] Lakehouse Restaurant Limited is to be sentenced on one breach of the Smoke- free Environments Act 1990 by failing to take all reasonable steps to ensure persons did not smoke in what was accepted to be an internal area.

[2] It is clear that correspondence between the parties indicated an acceptance by the defendant company that the area in question was correctly designated by the Ministry of Health and several times the Ministry had informed the defendant company of its concerns and what remedial action was required. It is today said that the work will be done to, in effect, prevent public access altogether to the area in question but we are now halfway through 2018 and this offence is said to have begun occurring over 12 months ago. So in the circumstances one can do little more than

MINISTRY OF HEALTH v THE LAKEHOUSE RESTAURANT LIMITED [2018] NZDC 13678 [11 June 2018]

point out the old saying that the road to hell was paved with good intentions and there has been no actual prevention at this point in time.

[3] The charge is fine-only, and the maximum penalty is $4000. I accept that relevant aggravating aspects of the offending are that this has continued over a significant period of time and it relates to a breach which is designed to protect the public and to promote public health.

[4] The charge inherently relates to the defendant being engaged in the hospitality industry for commercial gain and yet failing to meet what is a positive duty for health purposes. So the breach inherently involves providing a space or services to members of the public patronising the premises. I accept that in the circumstances there is little risk to other members of the public but the fact remains that the entire purpose of the business is to trade in the provision of services to members of the public and so the range of those risks is not confined particularly.

[5] The second aggravating aspect is that the defendant company was clearly on notice for a considerable period of time as to what was required to be done, a point that Ms McKenzie emphasises. She submits that that in effect increases the mens rea aspect of the offending, although of course it is a regulatory offence. It is a little difficult for me to determine, on the strength of what I have to hand, whether it could be called wilful non-compliance and therefore premeditation, or negligence at a high level, but either way I accept that there is some force in the argument that it is an aggravating aspect to the offending that the defendant has elected not to comply and that even as it stands today, the intended remedial steps have still not been effected. It is also noted that the Ministry of Health put some considerable effort into seeking compliance before prosecution.

[6] The Sentencing Act 2002 applies which means I must impose the least restrictive outcome to achieve the aims and principles set out in the Act and plainly protection of the public, deterrence and denunciation are lead factors.

[7] The real issue is where to fix the starting point and none of the cases has been particularly helpful. There is no issue that there are no personal aggravating factors.

The defendant company has no previous convictions and there should be a full discount for plea. Ms McBride’s submissions for the defendant company refer to the current owner being unaware of previous dealings but of course that has no real relevance given the timing of the charge, the timing of the correspondence and the date when the current owners took over the defendant company. The defendant is of course deemed to be aware of all that had previously taken place in any event.

[8] I am asked to take into account the limited ability for the general public to have access. It is, as I have already said, not a public thoroughfare but it is an area that was previously available for use by patrons. It is suggested that patrons have put ashtrays back and that that has made compliance more difficult but that merely serves to highlight the fact that as soon as the ashtrays were returned to the prohibited area, the defendant company needed to address the concerns with prominent clear signage or to cut off access, neither of which was done.

[9] I am referred to the Shearwater1 decision and Ms McBride submits a starting point of about a quarter of the maximum at $1000 would be appropriate, particularly given the intention of the defendant company to remove the area altogether from access, they are merely waiting for a builder. When I have enquired as to why it has taken so long even now given particularly that the first call of this matter was 9 April, I am told that the owner has a preferred builder. That is a luxury which may not be available to assist the defendant company.

[10] The defendant company has no previous convictions and is entitled to recognition of what might be broadly termed previous good character and full credit for early plea. The defendant company disputes there should be any costs award given that there is an early guilty plea and no trial preparation was required. Ms McKenzie seeks a starting point at $2000.

[11] The only High Court authority does not assist me particularly. The George on Willis2 decision does not follow the approved methodology by identifying a starting point. There was a previous conviction which on offending of this kind must be seen

1 Shearwater Hotels Ltd v Ministry of Health [2017] NZHC 1142, [2017] 3 NZLR 268.

2 R v The George On Willis Ltd [2017] NZDC 8649, [2018] DCR 328.

as a significant personal aggravating factor, and there was no discount for plea so that decision merely announces the final outcome, and perhaps would justify a starting point in the region of $2000. That is the argument advanced as the starting point for Ms McKenzie.

[12] Of course my obligation at this stage is to examine the particulars of the case and to fix a starting point having those firmly in mind. There is no tariff or guideline and the only other decisions are not particularly helpful, confined to their own facts and to the extent that they do enlighten as to a starting point decisions of the same Court. Some degree of conformity is required under the Sentencing Act but that does not mean that the exercise is predetermined by the very first decision.

[13] Having regard to the aggravating aspects to which I have referred, I consider that the appropriate starting point is $1500. I consider that there should be a total discount of $500 to reflect the one quarter discount for plea and recognition of previous good character. The end result is that the defendant company is convicted and fined $1000.

[14] On the issue of solicitor’s costs, the Crown solicitor for Christchurch is dealing with this prosecution. The Ministry of Health has been obliged to engage counsel. I accept that any costs award will be limited because there has been no necessity for preparation for trial but nevertheless it is reasonable to award costs and a solicitor’s fee of $200 is to be paid. I do not order Court costs.

J E Maze

District Court Judge