LAU v R [2018] NZCA 151

LAU v R [2018] NZCA 151 [16 May 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA69/2018[2018] NZCA 151BETWEEN EE KUOH LAUAppellantAND THE QUEENRespondentHearing: 16 April 2018Court: Cooper, Dobson and Toogood JJCounsel: A S R Kashyap for AppellantA J Ewing for RespondentJudgment: 16 May 2018 at 10 amJUDGMENT OF THE COURTA The appeal against sentence is dismissed.B The appellant is to surrender himself to the Registrar at the AucklandDistrict Court (Criminal Counter, Level 1, 65–69 Albert Street) no later than10.00 am on Friday 18 May 2018 to resume his sentence of imprisonment.____________________________________________________________________REASONS OF THE COURT(Given by Toogood J)[1] Ee Kuoh Lau (also known as Augustine Lau) is a property developer and thesole director of a company which had a lease over the rural property at18 Weranui Road, Waiwera. The property features areas of pasture and substantialareas of regenerating and remnant coastal forest said to be of significant ecologicalvalue. Mr Lau appeals against a sentence of two months and two weeks'imprisonment imposed by Judge Kellar in the District Court at Auckland on24 January 20181 after he had pleaded guilty to a charge that he had contravened orpermitted a contravention of the Resource Management Act 1991 (the Act) bydamaging six pōhutukawa trees and one tōtara tree on the site.2[2] At first sight, a sentence of imprisonment for any period in response to thedestruction of seven trees may seem unjustifiably heavy-handed, particularly giventhe availability of alternatives to imprisonment in community-based sentences suchas community service, community detention and home detention. And, assentencing judges and counsel involved in criminal cases well know, an importantsentencing principle requires the court to "impose the least restrictive outcome that isappropriate in the circumstances, in accordance with the hierarchy of sentences andorders" set out in the Sentencing Act 2002.3 As is invariably the case, however, anunderstanding of the sentence imposed and the issues arising on the appeal from itrequires attention to the details of the offending and the offender.[3] The procedural history of the case is somewhat unusual in that Mr Lau was ontrial by a jury for the offending when he pleaded guilty just as Judge Kellar was aboutto sum up to the jury. As a result, the Judge had a good understanding of the facts andwe draw on his account in summarising them.[4] Between March 2013 and June 2014 Auckland Council officers visited the siteover 20 times to inspect site works being managed by Mr Lau. They told him onnumerous occasions to stop felling native trees at the site. A resource consent to fellsome of the trees was applied for but never granted and tree felling workscontinued. In February 2014, Mr Lau lodged a submission on the proposedAuckland Unitary Plan requesting the removal of protections that the Unitary Planafforded to the trees which are the subject of the offending. It included a plan depictingintended building platforms for new dwellings in the location of those trees.1 [R] v Lau [2018] NZDC 1133.2 Resource Management Act 1991, ss 9(2), 9(3) and 338(1)(a).3 Sentencing Act, ss 8(g) and 10A.[5] In June 2014, shortly after a storm, Mr Lau arranged for a contractor to carryout site works using a digger. At the site, Mr Lau greeted the digger operator, who isdeaf and mute, and took him to the location of the trees. Pointing to seven specificnative trees, he made a hand gesture for the operator to push them over. On Mr Lau'sinstructions the trunks of three of the pōhutukawa trees and the tōtara tree were brokenand a number of large branches of three other pōhutukawa trees were damaged. Allof the trees were protected by the Operative Auckland Council District Plan and fiveof them were also protected by the Auckland Unitary Plan. A member of the publiccomplained and two Council officers visited immediately. They saw Mr Lausupervising the operator's attempt to knock down one of the pōhutukawa trees onwhich branches had been broken. The operator ceased the work immediately whenone of the Council officers signalled him to do so.[6] Mr Lau claimed in explanation that the trees were being felled because theyhad been damaged by a recent storm and were unsafe. The Judge said, however, thatstorm damage to the trees was confined to some small limbs and did not present anyimmediate risk to people or property.4[7] Identifying the aggravating factors of the offending, the Judge said that thiswas a very attractive coastal site containing vegetation, including the seven damagedtrees, of high amenity and ecological value.5 The Judge recalled evidence given by anexpert during the trial that some of the trees would be upwards of 100 years old. Fourof the affected trees suffered what the Judge described as "brutal" damage: evidencewas given by the Council's ecologist that it was likely that all of those trees would dieas a result of the unlawful works. The Judge said that the other three trees also sufferedserious damage, with the expert indicating that the long-term viability was at risk ofpotential dieback and decay of affected stumps and branches. The Judge concludedthat the harm caused to the seven protected trees was so significant as to be terminal.6[8] Judge Kellar held there was no element of recklessness and that it was "hardto imagine a more deliberate case."7 The Judge concluded that Mr Lau's purpose in4 [R] v Lau, above n 1, at [5].5 At [6].6 At [7].7 At [8].deliberately removing the trees was to gain financially in the development ofthe property because the views from sites on the property would have beenconsiderably enhanced by the removal. The Judge said Mr Lau had showed littlerespect to Council officers throughout the period of works at the site leading up tothe offending and had shown flagrant disregard for the regime underthe Resource Management Act, knowing that resource consent was required to cutdown the trees and, worse, knowing that the resource consent applied for had notbeen granted.8[9] Judge Kellar noted there was no attempt by Mr Lau to comply with hisobligations and that any efforts at remediation had been undertaken only inadequately,and by others. The Judge referred also to a considerably belated offer to pay some$10,000$15,000 in reparation by instalments over the course of a year.9 Finally,the Judge referred to Mr Lau's motivation, saying that it was clear that he intended "tomake building platforms available for new dwellings in what is a spectacular locationwith views to the sea."10 The Judge observed that Mr Lau had engaged with theCouncil for over a year in trying to cut down the trees and that, given the overheatedAuckland property market, "even gaining one building platform in this area as a resultof felling the trees would lead to significant financial gain".11 There were nomitigating factors in relation to the offending.[10] Judge Kellar said he had considered a number of relevant cases in the absenceof any guideline judgment which might assist him to fix a starting pointin the sentencing process.12 He identified that the overarching purpose ofthe Resource Management Act is the sustainable management of natural and physicalresources and referred to the list of matters of national importance under the Act,including the protection of areas of significant indigenous vegetation.13 The Judgealso referred to s 7 of the Act regarding the maintenance and enhancement of amenity8 At [9].9 At [10].10 At [11].11 At [11].12 At [13].13 At [14].values, the intrinsic value of eco-systems and the maintenance and enhancement ofthe quality of the environment.14[11] Judge Kellar referred to the usual sentencing purposes of accountability anddenunciation and noted the need to deter Mr Lau from engaging "in similar flagrantand deliberate behaviour".15 He also considered the need for general deterrenceagainst those who might be minded to deliberately disobey environmental rules incarrying out developments for the purposes of gaining financially.16 The Judgeregarded the offending as serious but acknowledged the obligation to impose the leastrestrictive outcome in the hierarchy of sentences that is appropriate.17[12] Turning to Mr Lau's personal circumstances, Judge Kellar said that Mr Lauhad endeavoured to diminish his role and responsibility in the offending by tellingthe writer of the pre-sentence report that he was merely acting as an interpreterbetween the property owner and the property manager at the address where theoffending occurred, and an arborist who was there to trim the trees. He said Mr Lauhad suggested to the report writer that the deaf and mute digger operator hadmisunderstood his gestures. Mr Lau did not express any remorse for his part in theoffending.18 He declined to give his consent to consideration of electronicallymonitored sentences, informing the report writer that he needed to be available for thecare of his children who he said reside in multiple households and of his mother whois in poor health. Mr Lau was born in Malaysia but is now a permanent resident ofNew Zealand having lived here since 1992. He told the report writer that he wasunable to pay any reparation that might be sought but said that replacement trees hadbeen planted as a means of offering amends for those that were cut down.19We observe that, while the remedial effects of the planting would take many years toadequately mitigate the devastating effect of the destruction of these mature trees, theperceived financial benefit of clearing the site for building works would be almostimmediate.14 At [14].15 At [16].16 At [16].17 At [17].18 At [18].19 At [19].[13] The Judge noted that Mr Lau was said by a parish priest to be a person of goodcharacter and acknowledged expressions of responsibility, through counsel, albeit at avery late stage.20 The Judge also noted the reparation offer21 and an undertaking notto be involved in development work in the future.22 Accepting that Mr Lau had noprior convictions, the Judge said that good character did not relate simply to a lack ofprior convictions but can be assessed in the present case in terms of his past conductin environmental matters.23 The Judge stated:[24] In your case you have been issued with numerous abatement noticesby the council and enforcement orders by the Environment Court in respect ofbreaches of the Resource Management Act at many different sites for whichyou have had, and may continue to have, responsibility. And these include anabatement notice, an interim enforcement order and an enforcement orderrelating to a property at Paremoremo Road in Auckland. That relates tounauthorised dwellings and wastewater discharges.[25] You were also the subject of an enforcement order relating to aproperty on the Albany Highway regarding unauthorised dwellings, removalof vegetation from a significant ecological area and again wastewaterdischarges. Furthermore, there were two enforcement orders issued relatingto 32 Weranui Road in Waiwera. The first regarded unauthorised removal ofvegetation from a significant ecological area, earthworks and damage toarchaeological sites. The Environment Court stated that the circumstances inthat case, "Could only be described as some of the most seriousthe Court has seen." The second of the enforcement orders related tounauthorised dwellings.[26] The next factor is interim enforcement orders and [an]enforcement order relating to a property in Fairburn Road, Otahuhu inAuckland regarding unauthorised earthworks in a coastal managementarea, including the deposit of material containing asbestos. There was also anabatement notice, interim enforcement orders and an enforcement order inrelation to a property in Ormiston Road in Flat Bush, Auckland, regardingunauthorised dwellings and wastewater disposal. There was an enforcementorder issued in relation to a property at Mt Albert Road relating tounauthorised dwellings. Another enforcement order relating to a property inMemorial Avenue, Mt Roskill, Auckland, regarding unauthorised dwellingsand excessive impermeable surfaces and, finally, an enforcement orderrelating to a property in Candia Road in Swanson regarding unauthoriseddwellings. So far, and to the best of my information, you have not compliedwith any of the Environment Court's orders.[14] The Judge then noted that Mr Lau was indebted to the Auckland Council inunpaid costs awards made against him totalling around $379,000 which he had made20 At [20].21 At [21].22 At [22].23 At [23].no attempt to pay. Mr Lau has no registered property interests and is subject tobankruptcy proceedings by both the Inland Revenue Department andAuckland Council.24 The Judge considered that the offer to pay reparation was late,not tangible and not realistic.25 In any event, the gravity of the offending was wellbeyond the imposition of a fine. He said, however, that Mr Lau's plea of guilty entitledhim to some allowance but one which the Judge said had "to be so slight as to benegligible", given that the plea was entered just as he was about to sum up to the juryand that Mr Lau had "tried ... just about every trick in the book to delay the trial".26The Judge said, however, that his plea showed some acceptance or acknowledgementof responsibility.27[15] Judge Kellar said that sentencing objectives would not be achieved by theimposition of a fine or of a sentence of community work: the offending was flagrantand deliberate for the purpose of achieving what would have been significant financialgains after unsuccessful attempts to remove the trees by legitimate means.28[16] The Judge took a starting point of three months' imprisonment (against astatutory maximum of two years' imprisonment or a fine not exceeding $300,000)29and gave a discount of two weeks for the plea of guilty, leaving an end sentence of twomonths and two weeks' imprisonment.30 Given Mr Lau's circumstances and thecircumstances of his offending, the Judge did not consider that a sentence short of asentence of imprisonment would meet the necessary objectives.31Approach on appeal[17] An appeal against sentence must be allowed only if the Court is satisfied thatthere has been an error in the sentence imposed for any reason and that a differentsentence should be imposed.32 A material error requiring correction will be established24 At [27].25 At [28].26 At [29].27 At [29].28 At [30].29 Resource Management Act, s 339(1)(a).30 [R] v Lau, above n 1, at [32].31 At [33]–[34].32 Criminal Procedure Act 2011, s 250.if the sentence is manifestly excessive or wrong in principle, or if there are exceptionalcircumstances.33 An appellate court will not intervene where the sentence is withinthe range that can properly be justified by accepted sentencing principles. Whether asentence is manifestly excessive is to be examined in terms of the sentence given,rather than the process by which the sentence is reached.34The argument on appeal[18] Mr Kashyap for the appellant focused his submissions on an argument that thesentence was wrong in principle and excessive because it was inconsistent withsentences imposed in other prosecutions under the Act for similar offending, relyingparticularly on those where sentences or penalties other than imprisonment wereimposed. They include three tree removal cases referred to by Judge Kellar:(a) Queenstown Lakes District Council v Spijkerbosch35The three defendants removed a 50-year-old 15‒20 m eucalyptus treefrom their property. The detrimental effect on the environment was thatthe tree was the last of its species in the area; its removal resulted inloss of amenity for users of the park which was adjacent to the property;and a resource consent for its removal would have been unlikely tosucceed. Two of the defendants, who had assisted the principaloffender, were discharged without conviction. On several occasions,the principal offender had been denied permission to remove the treebut he saw an article in a local paper stating, incorrectly, that all treeprotections in Arrowtown had been removed. Relying on the articleand ignoring specific advice from the relevant local authority,the offender cut down the tree. The Judge regarded it as deliberate andrelatively serious. Because the offender did not have the means to paya fine the Court substituted 180 hours' community work for thefinancial penalty.33 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[31].34 Ripia v R [2011] NZCA 101 at [15].35 Queenstown Lakes District Council v Spijkerbosch DC Queenstown CRI-2010-059-335,30 July 2010.(b) Auckland Council v Andrews Housemovers Ltd36The offender felled three pōhutukawa trees in the course of relocatinga house onto a property. Restorative justice was undertaken and theoffender was very remorseful, agreeing to replace the trees at a cost ofover $27,000, paying costs of $3,000 to the Council and donating$3,000 to a tree-planting charity. The offender was dischargedwithout conviction.(c) Tauranga City Council v Kent37The offender hired a handyman to remove 11 trees located on a reserveadjoining his property so as to obtain better views from his spa pool.The trees were pōhutukawa and tarata which were approximately 15 min height. The Court considered the impact on the environment to besignificant as the trees were reduced to stumps and it was unclearwhether sprouting would be successful. The offender was reckless asto which trees in the reserve were cut down and knew that they werenot on his land and were therefore protected, and that resource consentwas required to alter them. The Court considered deterrence to be ofparticular importance and regarded the case as "very high or veryserious". A fine of $45,500 was imposed and the offender was orderedto pay $5,000 for the reparation of the trees.[19] Mr Kashyap also referred to the other cases summarised by Judge Kellar in anannexure to his sentencing notes. We have considered them but they do not assist andwe do not need to summarise them here.Discussion[20] In arguing the appeal, Mr Kashyap faced the difficulty of identifying whatrealistic alternative sentence to imprisonment should have been imposed.36 Auckland Council v Andrews Housemovers Ltd [2016] NZDC 780.37 Tauranga City Council v Kent DC Tauranga CRI-2012-070-4916, 18 March 2013.The Probation Officer said that Mr Lau would not consent to an electronicallymonitored sentence because of child care responsibilities, although Mr Lau claimed atsentencing that his position had been misunderstood. Mr Kashyap suggested to us thata sentence of community work would have been appropriate. There is no doubt thatMr Lau was in no position to pay a fine of any amount.[21] We accept Mr Kashyap's submission that consistency of sentencing betweenlike cases is an important principle.38 There is no guideline judgment to assistsentencing in this type of case, however, because the facts are infinitely variable.While sentencing judges should always be mindful of penalties imposed in other cases,the appropriate sentence will be one which takes into account factors such as themaximum penalty; the seriousness of the offending (bearing in mind aggravating andmitigating features); aggravating and mitigating personal factors; and the availabilityof discounts for guilty pleas, remorse and other matters.[22] Adopting a conventional approach to the sentencing exercise, Judge Kellartook a starting point of three months' imprisonment. But this was very seriousoffending of its type and, having regard to the maximum penalty, we consider asomewhat higher starting point could not have been criticised. Although Judge Kellarprofessed to have allowed a discount for the very late guilty plea which was "so slightas to be negligible", taking two weeks off a sentence of three months' imprisonmentamounted, in fact, to allowing a 15 percent discount. That, too, was very generous inthe circumstances.[23] We do not think Mr Lau was a suitable candidate for a community-basedsentence such as community or home detention. He has demonstrated throughout acomplete disregard for the law and the orders of regulatory authorities, and he hasfailed to display a genuine acceptance of his responsibility for the offending.Moreover, in considering the statutory obligation to impose the least restrictivesentence possible in the circumstances, we agree with Judge Kellar that alternatives toimprisonment would not adequately meet the sentencing objectives to be applied inthis case.3938 Sentencing Act, s 8(e).39 [R] v Lau, above n 1, at [33].[24] The facts speak for themselves and Mr Kashyap did not dispute the sentencingJudge's analysis of the aggravating factors summarised in [7]-[9] above. The natureof the environmental destruction involved; the cynical and deliberate nature of theoffending, carried out with full knowledge of its unlawfulness; and the absence of anymitigating factors such as genuine remorse, make a community-based sentenceinsufficient to meet the important principles of denunciation, accountability andpersonal and general deterrence. In cases such as this, involving deliberate, significantand financially motivated breaches of rules designed to protect the naturalenvironment, anything short of a sentence incorporating some custodial element isunlikely to have the desired salutary effect.[25] This case was far more serious than the Spijkerbosch andAndrews Housemovers cases discussed above, and also more serious than the Kentcase, considering the gravity of the actual offending and the aggravating features ofMr Lau's conduct. The latter includes his apparent intent to profit by the offendingand his track record of disdain for environmental rules. Overall, the short sentence ofimprisonment was stern but justified.Conclusion and result[26] A sentence of imprisonment was properly available to the District Court Judgeand, in our view, a longer term than that imposed would have been justifiable.[27] The appeal against sentence is dismissed.[28] The appellant is to surrender himself to the Registrar at theAuckland District Court (Criminal Counter, Level 1, 65–69 Albert Street) no later than10.00 am on Friday 18 May 2018 to resume his sentence of imprisonment.Solicitors:Crown Law Office, Wellington for Respondent