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District Court of New Zealand |
Last Updated: 13 December 2024
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IN THE DISTRICT COURT AT AUCKLAND
I TE KŌTI-Ā-ROHE
KI TĀMAKI MAKAURAU
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CRI-2018-004-007261
[2024] NZDC 28930 |
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AUCKLAND COUNCIL
Prosecutor |
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v
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CABLE BAY WINE LIMITED
Defendant |
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Hearing:
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18 October 2024
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Appearances:
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S Quinn and T Doyle for the Prosecutor K de Silva for the Defendant
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Judgment:
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5 December 2024
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SENTENCING NOTES OF JUDGE D A KIRKPATRICK
[1] The defendant, Cable Bay Wine Limited, has been found guilty on one charge in CRN18004502777 that on 23 June 2018 at 12 Nick Johnston Drive, Waiheke Island, it contravened s 9(3) of the Resource Management Act 1991 (RMA) through the use of land as a restaurant/function centre in a manner which contravenes a rule in the Auckland District Plan-Hauraki Gulf Islands section, namely general rule 4.2 as an activity not provided for in activity table 10A.20.5 and in breach of condition 25 of resource consent R/LUC/2004/8789 through the generation of noise.
[2] The charge is an offence under s 338(1)(a) of the RMA and is subject on conviction to a fine not exceeding $600,000. The prosecutor submits that an
AUCKLAND COUNCIL v CABLE BAY WINE LIMITED [2024] NZDC 28930 [5 December 2024]
appropriate starting point for a fine is $60,000. The defendant submits that an appropriate sentence is a conviction and discharge under s 108 of the Sentencing Act 2002 or alternatively a fine based on a starting point in the range of $500-$5,000.
Background
[3] There is a lengthy background to this charge which is set out in the introduction to my decision dated 9 September 2024.1 I do not repeat that background here.
[4] I also refer to a number of decisions of the Environment Court relating to:
- (a) an application by Auckland Council for enforcement orders under s 314 and 316 of the RMA;2 and
- (b) decisions on an appeal by Cable Bay Wine against a decision of Auckland Council refusing retrospective resource consent for additional facilities on the site.3
[5] Very briefly, the generation of noise from the restaurant or function centre activities on the land occupied by Cable Bay Wine and its effects on its neighbours has been litigated extensively in this court and in the Environment Court and in the senior courts.
[6] As well as this sentencing, Cable Bay Wine has applied for costs against the Council under the Costs in Criminal Cases Act 1967 and above the scale in the Costs in Criminal Cases Regulations 1987. That application is the subject of a separate decision.
1 Auckland Council v Cable Bay Wine Ltd [2024] NZDC 21713 at [1] – [11].
[2020] NZEnvC 075 (Fourth Interim); [2021] NZHC 2596 (High Court Appeal and Judicial Review); and [2022] NZCA 189 (leave to appeal to Court of Appeal declined).
Sentencing framework
[7] In sentencing an offender, the Court must follow the two-stage approach as set out in Moses v R,4 first identifying the starting point incorporating any aggravating and mitigating features of the offence, and then assessing and applying all aggravating and mitigating factors personal to the offender together with any discount for a guilty plea (calculated as a percentage of the starting point).
[8] All of the purposes and principles in ss 7 and 8 of the Sentencing Act 2002 must be borne in mind, as well as the purpose of the RMA to promote the sustainable management of natural and physical resources. Of particular relevance under the Sentencing Act 2002 are the purposes of accountability, promoting a sense of responsibility, denunciation and deterrence, and the principles relating to the gravity of the offending and the degree of culpability of the offender, the seriousness of the type of offence, the general desirability of consistency with appropriate sentencing levels and the effect of the offending in the community.
[9] When considering the starting point, Thurston v Manawatu-Wanganui Regional Council5 is the leading decision which provides a comprehensive summary of the applicable principles. Briefly, the RMA seeks not only to punish offenders but also to achieve economic and educational goals by imposing penalties which deter potential offenders and encourage environmental responsibility through making offending more costly than compliance. Relevant considerations include the nature of the environment affected, the extent of the damage, the deliberateness of the offence, the attitude of the defendant, the nature, size and wealth of their operations, the extent of efforts to comply with their obligations, remorse, profits realised and any previous relevant offending or evidence of good character.
Submissions on sentencing
[10] Comprehensive submissions were presented by counsel. In summary, counsel for the prosecutor submitted:
4 Moses v R [2020] NZCA 296 at [45] – [47].
[11] Counsel for the prosecutor acknowledged that the evidence presented at trial of complaints about noise does not establish breaches of the noise condition but submitted that the evidence does show, by the number and nature of the complaints, that the defendant was aware of the issue of noise created on its site.
[12] Counsel submitted that the relevant sentencing principles in s 7(1) of the Sentencing Act 2002 are those of accountability for harm done, promotion of a sense of responsibility, denunciation of the conduct and both specific and general deterrence.
[13] Counsel pointed to the rural-residential nature of the environment in the vicinity, the need for deterrence and the degree of culpability given knowledge of the noise issue.
[14] In reviewing the case law relating to sentencing under the RMA, counsel acknowledged that no two cases are quite alike.6 Counsel advised that there are few recent decisions that deal with sentencing for emission of noise. Several decisions were cited,7 but counsel noted that the charges in a number of those cases were for
6 Taranaki Regional Council v Collingwood [2016] NZDC 16616 at [24].
contravention of abatement notices where the primary sentencing principle was identified as being the maintenance of the regulatory system rather than simply the emission of noise.
[15] Counsel presented submissions based on decisions in cases relating to the discharge of odour and submitted that these are better comparators because they deal with circumstances in which the charges have followed a lengthy history of complaints:
- (a) Bay of Plenty Regional Council v Ziwi Ltd,8 where there was a single charge relating to discharges of odour on five occasions, but with a history of 224 complaints over 9 years, and a starting point of $80,000 was set;
- (b) Otago Regional Council v W G Limited Partnership,9 where there was a single charge of discharge of odour but with a history of up to 33 complaints a month for 3 years, and a starting point of $75,000 was set;
- (c) Manawatu-Whanganui Regional Council v Bartosh,10 where there was one charge relating to intermittent odour discharges with a history of complaints, and a starting point of $60,000 was set;
- (d) Canterbury Regional Council v Wallace Group Limited Partnership,11 where there was one charge for discharge of odour in a one-off incident, with some history of complaints and the rendering operation was shut down, a starting point of $30,000 was set; and
- (e) Hawkes Bay Regional Council v Te Mata Mushroom Company Ltd,12
where there were two charges for discharge of odour, a prior history
26734; Selwyn District Council v Brand DC Christchurch CRI-2006-009-7579, 4 December 2006;
Gisborne District Council v Stevens DC Gisborne CRN8016006322, 10 August 1998.
8 Bay of Plenty Regional Council v Ziwi Ltd [2020] NZDC 24102.
9 Otago Regional Council v W G Limited Partnership [2022] NZDC 21184.
10 Manawatu-Whanganui Regional Council v Bartosh [2023] NZDC 29285 and [2024] NZDC 2033.
11 Canterbury Regional Council v Wallace Group Limited Partnership [2020] NZDC 24846.
12 Hawkes Bay Regional Council v Te Mata Mushroom Company Limited [2018] NZDC 16898.
including prior prosecution and enforcement order and infringement notices and a record of complaints, and a starting point of $40,000 was set for both charges.
[16] Considering culpability based on the history of complaints and the steps taken or not taken in response to those, counsel submitted that the Bartosh case is the most similar to this case and on that basis submitted that $60,000 would be an appropriate starting point.
[17] Counsel for the prosecutor did not identify any additional aggravating factors specific to the defendant or any mitigating factors in the offending.
[18] Counsel for the defendant submitted in summary:
(a) The history of complaints is not relevant;
- (b) The defendant was not on notice, having been told by the Council in 2016 that it would not measure noise for enforcement purposes on the neighbouring property of 85 Church Bay Road;
- (c) There is no evidence of any complaint or impact on neighbours or other loss of amenity on 23 June 2018;
- (d) There is no evidence of ongoing harm;
- (e) There is accordingly no need for either specific or general deterrence;
- (f) There is no evidence of any profit from the short time during which the offending occurred;
- (g) The court must sentence the defendant on the basis of the offending on the day of the charge;
- (h) The offending is not serious and does not involve any harm beyond a nuisance while the noise occurred;
[19] Counsel referred to the observations of the High Court in Wallace Corporation v Waikato Regional Council13 where the High Court noted that there was no information before it about whether and how complaints had been verified and whether the source of the odour was confirmed to be from the defendant’s plant and went onto observe:
- [18] I consider there are difficulties giving weight to this history of complaints. The processes that have led to the complaint being recorded are not robust enough to make the complaint a legitimate source of “aggravation” on a sentencing. In an area where the objectionability of a smell is established by complaints, it is necessary for there to be some verification as to the legitimacy of a complaint.
- [19] These observations should not be taken out of context. It is not a statement that prior conduct cannot be used on sentencing. It would be plainly undesirable to force Councils to charge every breach when a warning, or a negotiated solution, may be the preferable approach. If later offending occurs, the Council should be able to refer to earlier non-charged incidents. However if this is to happen, the process followed must be sufficiently clear to establish that an uncharged breach has indeed occurred, or has been accepted by the consent holder as having occurred. I am not satisfied that is the case here.
[20] Counsel noted that counsel for the prosecutor has accepted that the records of complaints in the present case were not evidence of established breaches in a prosecution sense. She also submitted that the reference in the prosecutor’s submissions to the seizure of equipment for loud music in 2014 and excessive noise directions in February and March 2018 should be given no weight. She referred to the evidence of Mr Hegley, an expert on noise called by the defendant at trial, that a complaint does not confirm that there was an exceedance of noise limits.
[21] In relation to the decisions of the Environment Court relating to Cable Bay Wine, counsel submitted that the these should not be given weight in sentencing because:
13 Wallace Corporation v Waikato Regional Council HC Auckland CRI-2006-404-26, 8 June 2006.
(a) The standard of proof in the Environment Court proceedings is the balance of probabilities, not beyond reasonable doubt;
(b) The defendant did not have the opportunity to rebut evidence about the history of noise effects;
(c) The evidence in relation to the charge of offending on 9 February 2018 established that there had been significant residual noise not caused by the defendant’s activity which was the basis on which that charge had been dismissed;14
(d) The enforcement order issued on 28 November 2018 should not be treated as an aggravating factor as it was issued some months after the offending in this case and determined on the balance of probabilities.
[22] Counsel for the defendant submitted that the offending in this case was transient. The measurement was taken from a close distance of approximately 16 metres and there is no evidence of any wider audibility. The noise measured was not generated by the defendant itself but was from a group of ten patrons. It occurred during the late afternoon rather than at nighttime. While the noise levels measured in this case breached the limit in the condition of resource consent for Cable Bay Wine’s activity, they did not exceed the general noise limits for the Rural 2 zone.
[23] Counsel distinguished the cases involving discharges of odour relied on by the prosecutor on the basis that they involved industrial activities and contraventions of s 15(1)(c) of the RMA relating to discharges from trade premises, while the charge in this case was under s 9 of the RMA relating to unauthorised use of land.
[24] Counsel also submitted that there are a range of options available for enforcement, including infringement notices under s 343C of the RMA, excessive noise directions under s 327, abatement notices under s 322. She submitted that the use of lower-level enforcement methods is the usual approach and that these are very
14 Auckland Council v Cable Bay Wine Limited [2021] NZDC 12236 at [79].
effective, as demonstrated by the fact that there are so few prosecutions for noise. She referred to three cases where such methods were used:
(a) Auckland Council v Utton15 involving an infringement notice for contravention of an abatement notice for unreasonable noise involving shouting, yelling and loud music coming from the defendant’s property, where the notice was upheld and a fee of $750 was confirmed;
(b) Dunedin City Council v Heke16 involving an abatement notice requiring the defendant to adopt the best practicable option to ensure that the noise from crowing roosters did not exceed a reasonable level: the court found that five of the six requirements of the abatement notice had been met, the failure to comply with one requirement meant the offending was minimal and the defendant was convicted and discharged but the court made an enforcement order under s 339(5) of the RMA;
(c) Auckland Council v Randell17 where an infringement notice was issued for contravention of an excessive noise direction relating to a birthday party at a residential property. The court found that the imposition of the maximum fee of $500 was excessive for noise from a party on Saturday night before midnight and substituted a fine of $25.
[25] Counsel submitted that in all the circumstances a conviction and discharge under s 108 of the Sentencing Act would be appropriate. In her submission a requirement of s 109 that the court must be satisfied that a conviction is sufficient penalty in itself is met in the present case, on the basis that a prosecution should not have been commenced and the Council should have proceeded by issuing an infringement notice. She submitted that the Council commenced the prosecutions for its own benefit to get guidance on technical aspects of the New Zealand standards for acoustics and that the expensive and protracted process had caused significant stress, expense and reputational impact for the defendant. She also referred to the application
15 Auckland Council v Utton [2023] NZDC 26973.
16 Dunedin City Council v Heke [2021] NZDC 18072.
17 Auckland Council v Randell [2016] NZDC 838.
for costs by the defendant and submitted that should be taken into account in relation to the submissions seeking either a conviction and discharge or by adopting a starting point of between $500-$5,000.
Evaluation
[26] As submitted by counsel for the prosecutor in reply, I find that there are five principal issues in this case:
- (a) The relevance and weight of the evidence of the history of noise complaints in relation to the defendant’s activities since 2014;
- (b) The need for deterrence;
- (c) The degree of remorse shown by the defendant;
- (d) Whether alternative enforcement methods should have been used given the costs and publicity associated with the prosecution; and
- (e) Whether a conviction and discharge is an appropriate sentence.
[27] I acknowledge that treating a history of complaints as if it were evidence that offending had been committed would be contrary to principle and perhaps contrary to the presumption of innocence under s 25(c) of the New Zealand Bill of Rights Act 199018 but a history of complaints may demonstrate that a defendant has knowledge of the circumstances and the attendant risks, which should put it on notice to take care and where a failure to do so may be an aggravating factor under s 9(4)(a) of the Sentencing Act making the offending more serious than it otherwise would have been.19
[28] The decisions of the Environment Court in relation to both the application by the Council for enforcement orders and the application by the defendant for retrospective resource consent are decisions of a court of record on similar issues
18 Walling v Waikato Regional Council [2023] NZHC 3437 at [22]- [23].
19 Fn 18 at [24].
between these same parties. Given the clear differences between the jurisdiction of that court and this one, s 50 of the Evidence Act 2006 declares that evidence of a judgement or a finding of fact in a civil proceeding is not admissible in a criminal proceeding to prove the existence of a fact that was an issue in the proceeding in which the judgment was given. I therefore do not treat the decisions of the Environment Court as proving any fact but, as in Walling,20 the history does show that Cable Bay Wine would have been aware of the issues and should have addressed them. As I said to counsel during the hearing, it would be unreal, given that history, to treat the decisions of the Environment Court relating to enforcement proceedings and a retrospective resource consent as being irrelevant.
[29] In light of that conclusion, deterrence is a relevant sentencing purpose in this case. Management of adverse effects on an ongoing basis requires a person whose activity produces the adverse effect to keep in mind the methods that may be available to avoid, remedy or mitigate those effects.
[30] In this sense, a pertinent question is whether Cable Bay Wine trained its staff to keep an eye or ear out for behaviours of patrons which might result in excessive noise. There is substance in the prosecutor’s submission that it appears that Cable Bay Wine preferred not to intervene to address such behaviours. Counsel for the defendant submitted that ejecting the patrons might be excessive and I appreciate that it could escalate at least the noise being created, but from the material in front of me there were other options available that do not appear to have been taken, such as asking the patrons to tone it down, or asking them to relocate to another part of the property or inside the building. Again, given Cable Bay Wine’s experience with complaints, enforcement action and contested consent processes, one would have expected the defendant to actively manage the issue.
[31] I do not accept the submission that I should have regard to the difference between the noise limits in the resource consent for the activity and those in the rules of the District Plan for general activities in the Rural 2 zone. Cable Bay Wine’s activity is not a permitted activity in that zone and so requires a resource consent. The noise
20 Fn 18.
limits in the resource consent were set by a consent order dated 22 May 2006. The conditions of that consent address the particular effects anticipated from the consented activity, which may be different to the effects anticipated from permitted activities.
[32] I also do not accept the submission that I should distinguish the cases involving discharges of odour on the basis that they involved discharges from trade premises under s 15(1)(c) of the RMA rather than the breach of a consent condition under s 9(3) of the RMA. Within the scope of Part 3 of the RMA. the statutory basis of the charge is not as significant as the nature of the contravention and its effects.
[33] In relation to the submissions concerning alternative enforcement methods, I observed during the hearing that the enforcement options under the RMA are available to a council in the exercise of its discretion. I referred to the longstanding authority of Manukau Shopping Centre Merchants Association v Manukau City Council.21 In that case a group of merchants sought an interim injunction to require the Council to enforce its district scheme under the Town and Country Planning Act 1977 by taking enforcement action against a competing retailer trading on neighbouring premises in contravention of the provisions of that scheme. While recognising the duty on the Council under s 62(3) of the Town and Country Planning Act 1977 (now, s 84(1) of the RMA) to observe and to the extent of its authority enforce the observance of the requirements and provisions of its district scheme (now, the District Plan), the High Court went on to say:
... However, the overwhelming obstacle which the plaintiff’s application faces is that there must be a discretion in the Council as to how it enforces its Scheme. It may do so by persuasion, by threat, by prosecution or by seeking an injunction, by any combination of those means and perhaps by other means that in particular circumstances may become available to it. The present application would seek to have this court pre-empt the Council’s discretion and compel it to enforce its Scheme by a particular means. There might be, and I do not so decide, some grounds for such an application if there was evidence that the Council was deliberately avoiding carrying out its duty under s 62(3) or had refused to do so, but that is certainly not this case. The council officers have taken initial steps and the matter is to be dealt with in accordance with the ordinary council procedures. That this court should not interfere with the discretion of the Council as to how it enforces this Scheme is demonstrated by the decision of Holland J in City South Supermarket Ltd v J Rattray and Sons Ltd [1984] NZHC 615; 10 NZTPA 207. ...
[34] In this case the Council exercised its discretion to lay charges against Cable Bay Wine and its prosecution of one of those charges has been successful. It is not for this Court now to say that this charge should never have been laid.
[35] That finding leaves open the question of what an appropriate sentence would be. Counsel for the defendant submits that a conviction and discharge would be appropriate. Under s 108 of the Sentencing Act, unless a minimum sentence is required to be imposed, the court may, instead of imposing a sentence, direct that the offender be discharged. Guidance on this is provided in s 109:
The court must not convict and discharge an offender unless it is satisfied that a conviction is sufficient penalty in itself.
[36] I am not satisfied of that. The defendant has not demonstrated any remorse or otherwise shown that it will take greater care in the management of noise caused by its activity. A sentence is appropriate.
[37] Counsel for the defendant submitted that the level of any fine should be at the low end of the scale for offences under the RMA, nominating $500-$5,000. There are some examples of cases where a court has clearly indicated that a prosecutor has used a sledgehammer to crack a nut or sought to break a butterfly on a wheel. The decision in Auckland Council v Randell22 may be one such example.
[38] If the circumstances of this case were that the evidence was only of a one-off incident of a few rowdy patrons making too much noise close to the boundary, then a similar approach to sentencing might be made. As I said to counsel at the hearing, just as past good behaviour can properly be prayed in aid of submissions seeking a lesser sentence, so past bad behaviour and a failure to learn from it may be taken into account as an aggravating factor in sentencing. Accordingly, in my assessment this case is substantially different from the three cases cited by counsel for the defendant as examples of lower-level enforcement for noise issues.
[39] The real question in assessing an appropriate starting point is whether I should be guided by the five odour cases relied on by the prosecutor or the three noise cases
22 Fn 17.
cited by counsel for the defendant. On my review of these decisions, the difference in sentencing levels appears to be based either on the extent of complaints over time or the age of the cases.
[40] Trying as best I can to evaluate the differing factual circumstances in the various cases, I conclude that the gravity of offending and the culpability of Cable Bay Wine in this case sits somewhere between those in Bartosh23 and Te Mata Mushroom Company.24 In my judgement, a starting point of $50,000 is appropriate in this case.
[41] I accept the submissions that no uplift should be added and nor should any discount be made.
Outcome
[42] On the charge in CRN18004502777 against Cable Bay Wine Limited, I convict the defendant and sentence it to pay a fine of $50,000, together with solicitor’s fee of
$113 and court costs of $130.
[43] As required by s 342 of the RMA, I direct that the fine, less 10% payable to a Crown bank account, be paid to Auckland Council.
Judge D A Kirkpatrick
District Court Judge | Kaiwhakawā o te Kōti ā-Rohe
Date of authentication | Rā motuhēhēnga: 05/12/2024
23 Fn 10.
24 Fn 12.
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