Auckland Council v Khalil [2022] NZDC 9741 (26 May 2022)

Last Updated: 10 June 2022

IN THE DISTRICT COURT AT AUCKLAND I TE KŌTI-Ā-ROHE KI TĀMAKI MAKAURAU

CRI-2020-092-008671 [2022] NZDC 9741

AUCKLAND COUNCIL Prosecutor

v

MOHAMMED ZAHID KHALIL and KHALIL’S CONCRETE CUTTING AND DRILLING LIMITED Defendant(s)

Hearing:	26 May 2022
Appearances:	V L Schaaf for the Prosecutor S Stienstra for the Defendants
Judgment:	26 May 2022

SENTENCING NOTES AND DECISION OF JUDGE J A SMITH

Introduction

[1] Mr Kahlil, you appear before the Court on your own behalf and as the sole director of Khalil’s Concrete Cutting and Drilling Limited in respect of a single charge each of a breach of an abatement notice.

[2] It is very clear that the facts are the same for both of the charges and that you are the operating mind of the company. Therefore, the actions of the company are your actions and vice versa.

AUCKLAND COUNCIL v MOHAMMED ZAHID KHALIL [2022] NZDC 9741 [26 May 2022]

[3] You have entered a plea of guilty to both charges and accordingly, the issue for the Court today is sentencing. I will deal with the question of conviction at the end of this decision because you have applied for a discharge without conviction on your own behalf.

[4] The parties have agreed that subject to that issue, the appropriate outcome in this case is a fine.

Background facts

[5] I do not want to overly complicate the facts given the pressures on the Court system at this time. Nevertheless, you were operating the company from around 2007 and it is obviously engaged in building and contracting type work.

[6] In around 2019, it appears that you were operating the company business from the site relevant to this offence. In that regard, I want to cover briefly the matters that seem to be involved.

[7] You stored your trucks and some diggers on the site as well as at least one company station wagon. There are also residential cars belonging to your family and to your brother-in-law’s family. You both reside in the house itself.

[8] The house itself is in a Single House Zone on a section of around 1,100 m2.. By today’s standards this is a relatively large site. I understand, although there is no evidence produced, that the site is in the Airport Overlay Zone which is somewhat more permissive about activities that might occur.

[9] I understand also that a subdivision consent had been granted at some time in the past which either expired shortly after you bought the property or some time prior to your purchase. Nevertheless, there was work done by you to put metal on to the site to enable the trucks and other items to be stored.

[10] Staff attended the site as far as I can see to pick up their vehicles and go work and then drop them back in the evening if they were to be returned. There appears to

be some vehicles staying away from the site if they are on the job and others that were returned daily.

[11] The number of vehicles on the site appears to vary but, at the time of the Council’s inspections, were up to eight. Five large tipper trucks, one vehicle with the defendant sign in writing which I take to be the station wagon, one medium sized truck and one small digger. On another occasion, there was one medium sized truck at the front, one large tipper truck at the front, the same station wagon apparently and four large tipper trucks at the rear.

The Abatement notice

[12] The Council issued an abatement notice to you in December 2019 and inspections in March and June 2020 showed that there were still vehicles on the site. That is admitted and your explanation is that you had entered into discussions with the Council trying to find a way forward.

[13] I also note that the country went into lockdown on 25 March 2020 until 27 April 2020 at Level Four so no action would have been possible during this period. Also, between 27 April 2020 and 4 May 2020, there was still no contracting work allowed. After 11 May 2020, it appears that construction was then permitted and I am unclear as to what ability that would have given to move to a new site.

The role of yourself within the company

[14] To all intent and purposes you are the company. I can see no practical distinction and therefore the offence is a single offence, committed by the company and also by you but they are the same offence. That being the case, I can see no basis on which I should divide the liability but for one small matter in relation to a previous infringement notice that you have received personally. However, I can adjust that in personal circumstances.

The starting point

[15] There is no real dispute about the law in this case governed as it is by cases such as Hessell and Machinery Movers.1 I need to establish firstly a starting point taking into account the various aggravating and mitigating factors of the offence itself and after that taken into account the personal circumstances and aggravating and mitigating features.

[16] I have been referred to two cases and that seem to me to guide the approach that should be adopted in this case. Both are cited by the prosecution. The first is Auckland City Council v Lal’s Transport2 which on remission back from High Court to myself had a starting point of $30,000.00 and end point of $18,000.00. The other case is Christchurch City Council v Wills3 in which case a starting point was adopted at $20,000.00.

[17] I deal first with the issue of the depot used in Lal. My recollection of that case was that was a Post Haste contractor with the operation operated from a residential property in a cul-de-sac. To that extent it is very similar.

[18] The difference was that some two vehicles were kept on the outside overnight but the actual operation of this site involved trucks coming and going all day, drivers having their breaks onsite, exchanging parcels and the type of actions that generally take place with that sort of courier action. I have concluded that there was a much more significant impact than yours.

[19] Also, although the property is residential, it is adjacent to a railway line and within the Airport Overlay. It is therefore subject to impacts of noise and general activity from the business zone on the opposite side of the railway track, aircraft and the like. There is still residential amenity involved and it is the breach of that which founds this charge. Nevertheless, that it is a lower level than that of Lal.

1 Hessell v R [2010] NZSC 135; Machinery Movers Ltd v Auckland Regional Council [1994] 1 NZLR 492 (HC).

2 Auckland City Council v Lal’s Transport Ltd DC Auckland CRI-2010-044-468, 20 June 2012.

3 Christchurch City Council v Wills DC Christchurch CRN 7009503007, 31 March 2008.

[20] Those two factors lead me to a conclusion that the starting point overall should be $20,000.00 and that represents a figure closer to that in the Wills case.

[21] Can I say in relation to that case, the Court took into account personal circumstances of the offender losing his partner in a kidnapping and murder. This case, however, has a factor which I do believe goes to the charge itself that is the lockdown during the COVID-19 period.

[22] This created an enormous uncertainty for families, in particular, those involved in contracting work. I do not think that can be included as part of the period for which compliance was required and I keep in mind the government’s imprecation to us all to “be kind”. I am unclear why the Council did not engage further with you to try to resolve the position; certainly that was your intent, stated in your affidavit.

[23] Nevertheless I understand that there is more to it than has been put to me in your affidavit but I do not have that information to make a conclusion. So overall, I have concluded that I have to give you the benefit of a doubt in those circumstances and that the starting point should be confirmed at $20,000.00.

Division of the starting point

[24] Given that that actions of the company and yourself are the same, it would be possible to either impose the full fine on either you or on the company. I was minded to impose the full fine on the company itself.

[25] However, there is one aspect of your conduct which does mean that I should separate some culpability to you as director. In 2016, you received an infringement notice in respect of the same type of activity on another property. That fine having been paid immediately and the reason for your move was to avoid issues. Nevertheless, the situation occurred again.

[26] I see that as a much lower level of culpability than the Council but it does mean I need to mark out your role as a director separate to that company. In my view, the major party culpable for the circumstances is the company and I would attribute

$16,000.00 to the company and $4,000.00 to you.

Discounts

[27] The only matter of discount discussed between the parties is a discount for an early plea. I think the circumstances are such that further discounts for character or conduct etc are not appropriate because those are taken into account in the starting point. For the reasons I have explained these go to the charge rather than personal circumstances.

[28] Nevertheless, Ms Schaaf points out that there was initially a not guilty plea. The Council had to brief their witnesses and get formal statements and make initial arrangements for hearings.

[29] On the other hand, Ms Stienstra was not instructed at the time and tells the Court that as soon as she was instructed, she advised her client to enter a guilty plea. It is difficult to penetrate the reasons why parties may act in a certain way based on advice and I am concerned that I should not be led into drawing any conclusions as to what the previous advice of a defence counsel was.

[30] Overall, I agree with Ms Schaaf that the discount allowed should be 20 percent. I do not know I would describe it as generous but it is fair, given the cost that was incurred by the Council.

Finish point

[31] Accordingly, the starting point for consideration of the application for the s 106 discharge application by Mr Khalil is a putative fine of $3,200.00.

[32] In respect of the company the fine is $12,800.00. My understanding is that there is no issue as to the fine for the company and accordingly, the company is convicted and fined $12,800.00 together with court cost and fees. Court costs are

$130.00 and counsel fees are $113.00 for half day.

Section 106 application

[33] I now turn to your circumstances, Mr Khalil, supported by affidavit and submissions by your counsel for discharge under s 106 of the Act.

[34] Having regard to the level of offending I found, I have to be satisfied that the consequences of your conviction would be out of proportion to the offence. Ms Stienstra deals with these issues in her submissions. Essentially, she notes that it is discretionary but she accepts that I must reach that conclusion that they are out of proportion.

[35] So the question is in this case is, having reached a conclusion that a fine of

$3,200.00 would otherwise be appropriate, is the conviction itself out of proportion for the offending?

[36] As far as the fine is concerned, I have concluded that I could make a decision under s 106(2)(d) requiring you to pay that entire sum to Auckland Council as a payment under that provision. So therefore, I cannot see that the financial consequences would be any lesser for you.

[37] The question is whether the conviction itself should properly be a matter of public record. In that regard, you give affidavit evidence on your family connections as one of the direct consequences as well as your travel.

[38] I understand you are from Fiji and you are concerned that the Fijian authorities may not look kindly at a Category 3 conviction. There is no direct evidence on that point and accordingly the Court is reluctant to place very much weight on that. I do take into account also that you are involved in contracts where a disclosure of convictions can mean the difference between obtaining and not obtaining a contract.

[39] The question is how the purpose, from a resource management point of view in preserving the environment, is going to be achieved by conviction. Firstly, I look at the effect on the environment. This is effectively a concern with maintaining relationships between residential properties and avoiding impacts upon amenity. To that extent, the effects on the environment are less direct. There was some impact on

the footpath and there may have been noise and dust received by neighbours. I am now satisfied that has ceased and accordingly, there does seem to be any particular environmental purpose achieved by having a conviction recorded against your name.

[40] I look at the fine and of course this consideration is predicated on you paying the same amount of money to the Council so there is no impact there.

Outcome

[41] I am therefore satisfied that having regard to the very low nature of the offending, the potential fine involved and its recovery through s 106(2)(d) that I should discharge you without conviction under s 106 of the Act. You are to pay to the Auckland Council the sum of $3,200.00 under s 106(2)(d). I make no court or solicitors costs orders on your personal charge.

[42] The Company is convicted and ordered to pay a fine of $12,800.00 together with court cost and fees. Court costs are $130.00 and counsel fees are $113.00 for half day. In terms of s 342(2) of the RMA, 90 percent of the fine against the company is to be paid to the Auckland Council.

Judge J A Smith

District Court Judge | Kaiwhakawā o te Kōti ā-Rohe

Date of authentication | Rā motuhēhēnga: 30/05/2022