Auckland Council v Maele [2024] NZDC 28771 (3 December 2024)

Last Updated: 15 December 2024

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

CRI-2024-004-004549 [2024] NZDC 28771

AUCKLAND CITY COUNCIL Prosecutor

v

MAELE MAELE RENOLUTION LIMITED (AKA) THOMAS A TREE SERVICES Defendants

Hearing:	19 November 2024
Appearances:	S Quinn and K Rogers for the Prosecutor R Butler for the Defendants
Judgment:	3 December 2024

ORAL JUDGMENT AND INTIMATION OF OUTCOME OF JUDGE J A SMITH

Introduction

[1] These offences relate to an arborist and his company and works done around Winscombe Cove Reserve and 2 Seacliff Avenue in Belmont Auckland on 2 August 2023.

[2] Both the company and Mr Maele have entered pleas of guilty and the Court proceeded to consider sentencing after discussion with both counsel.

AUCKLAND CITY COUNCIL v MAELE MAELE [2024] NZDC 28771 [3 December 2024]

Background

[3] The offence around 2 August 2023. The defendants undertook Pohutukawa trimming which was in an area, although on private property, that was subject to a significant ecological area terrestrial overlay.

[4] This was in contravention of the relevant rules E15.4.2A24 in the Auckland Unitary Plan Operative in Part and failed to comply with standard 15.6.9 where it was not expressly allowed by a resource consent. That provision relates to what is allowable by way of trimming and it seems to be common ground through the entry of the guilty plea that the trimming was excessive. The work was requested by the owner of the land so that is not the issue.

[5] Mr Maele says that at the time he tried to make enquiries with Council but was unclear as to the position. I accept that enquiries were attempted. Greater clarity, with relation to these areas of private property, is important if these rules are to be applied in a consistent manner.

[6] The parties do not dispute the facts nor in fact the range of starting points. The Council and the defendants agree that this is a fine situation. Accordingly, the company is convicted.

[7] At this stage, I record a conviction only in respect of Mr Maele but not a sentence and the reasons for that will become clear later in this decision.

[8] The Court’s approach is well settled and not in dispute between the parties. It identifies a two-step process, firstly a starting point in relation to the offence and the offending itself and subsequently, factors personal to the defendants.

Wholistic approach

[9] The Court will often look at the culpability of each party to an offence, however in this case, Mr Maele and the company are one and the same. The invoice was charged by the company, but Mr Maele was the sole director and trader under the company name. For all intents and purposes they can be seen as the same .

[10] On this basis, I consider that I should deal with the matter as a wholistic starting point and then attribute portions of that starting point to each of the defendants before moving to the application of the particular circumstances.

Starting point

[11] Mr Quinn suggested a starting point between $35,000 and $40,000 and there was no particular dispute as to that. Having looked at the relevant case law which I do not think I need to recite in this case, I am satisfied that this case fits within that range.

[12] The one factor that goes towards the lower end of this range is that the attempt to make enquiries and the difficulty of identifying where SEAs are on private land.

[13] For that reason, I have concluded that the starting point for the offence as a whole should be $35,000. I would attribute that between the company and Mr Maele slightly differently, given the fact that the company received the monies. I do not consider it warrants a significant differentiation. On that basis, I have concluded that the company’s starting point should be $20,000 and that for Mr Maele, $15,000. Again, neither counsel disagreed with this approach in the circumstances.

Particular circumstances for Renolution Limited

[14] From the starting point of $20,000, I will deduct 25% for an early plea which would leave a fine of $15,000. I can see no other personal or other circumstances that would justify a further reduction in that amount.

[15] I appreciate that the company is no longer trading and may not have funds but that in itself is not a reason for this court not to impose a fine. Accordingly, I fine the company a sum of $15,000 together with court costs of $143 and solicitor’s fee of

$113.

Mr M Maele

[16] Mr Maele’s personal position is of significance in this case. He is no longer working and is relying only on benefit, $420 a week from which he has to boarding fees and his living expenses. I accept that he has no available funds that would realistically enable any significant fine to be paid if at all.

[17] In those circumstances, I consider that the available range of outcomes would include community service. However, in the circumstances of this case, I have concluded that the amount of such service would be no more than 100 hours.

[18] In those circumstances, it seems to me that there are informal alternatives that might be acceptable to the parties and would meet the objective of this Act to renounce the conduct and hopefully to assist in rehabilitation and education.

[19] Both counsel agree that in this case an informal approach to such arrangements might be made. Mr Butler for the defendants suggests that this might be way of 100 hours of voluntary work for an organisation such as Forest and Bird or a similar organisation. Mr Quinn agrees.

[20] In those circumstances, I intend to adjourn Mr Maele’s case to 20 March at 10 am for a report as to whether or not he has arranged voluntary work with Forest and Bird or another similar organisation.

[21] If he can provide that evidence to me before that date, I will be minded to excuse his appearance on the basis that the parties accept as they have today, that a conviction and discharge would then be entered against him on that date.

[22] So, he is already convicted, the question is whether or not the discharge will apply and I am minded to do so on the papers if it can be provided before that date. In this way, it seems to me we encourage the resolution of this situation without unnecessary court appearances.

Summary

[23] The company is convicted and fined $15,000 together with court costs of $143 and solicitor’s fee of $113.

[24] Mr Maele is convicted. The matter is stood down to 20 March to satisfy the Court that voluntary arrangements have been made with Forest and Bird or a similar organisation in which case the conviction and discharge would be entered permanently. This might be done on the papers if provided in sufficient time.

[25] In respect of the fine for the company, 90% of that fine is to be paid to the Auckland Council under s 332 of the Act.

Judge J A Smith

District Court Judge | Kaiwhakawā o te Kōti ā-Rohe

Date of authentication | Rā motuhēhēnga: 03/12/2024