GREGAN FARMS LIMITED v WAIKATO REGIONAL COUNCIL [2023] NZHC 1017

GREGAN FARMS LIMITED v WAIKATO REGIONAL COUNCIL [2023] NZHC 1017 [2 May 2023]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2022-419-76[2023] NZHC 1017BETWEEN GREGAN FARMS LIMITEDAppellantAND WAIKATO REGIONAL COUNCILRespondentHearing: 28 March 2023Appearances: J Gurnick for AppellantA McConachy for RespondentJudgment: 2 May 2023JUDGMENT OF WOOLFORD JThis judgment was delivered by me on Tuesday, 2 May 2023 at 12:30 pm.Registrar/Deputy RegistrarSolicitors: Gordon & Pilditch (Office of the Crown Solicitor), RotoruaCounsel: J Gurnick, Hamilton[1] On 7 October 2022, Gregan Farms Limited (GFL) was fined $31,500 on onecharge of contravening s 13(1)(b) of the Resource Management Act 1991 (RMA) bypermitting the disturbance of a bed of a river, by excavating the bed and banks. It nowappeals on the basis that the fine is manifestly excessive.Factual background[2] GFL is the registered owner of properties located at 21 McWatt Road,Waitakaruru; 81 McWatt Road, Waitakaruru; and 874 Okaeria Road, Waitakaruru.The properties at 21 McWatt Road and 81 McWatt Road are adjoining while874 Okaeria Road runs adjacent separated by Okaeria Road. The properties at21 McWatt Road and 874 Okaeria Road operate as one entity supplying Fonterra Co-operative Group Limited while the property at 81 McWatt Road is run as a separateentity and supplies Open Country Dairy Limited. The properties at 21 McWatt Roadand 874 Okaeria Road are registered under the same certificate of title and have a landarea of 193 hectares. The property at 81 McWatt Road is on a separate title and has aland area of 116 hectares.[3] Running through both 21 McWatt Road and 81 McWatt Road (the McWattRoad properties) is a modified watercourse (the watercourse) being an unnamedtributary stream to the Waitakaruru River. The headwater to the watercourse is locatedat the north-eastern end of the Maramarua forestry block and runs in a northerlydirection along the western side of Okaeria Road through the McWatt Road properties,across State Highway 2 to the confluence with the Waitakaruru River at the Steen RoadQuarry. The McWatt Road properties consist of reasonably flat lands with paddocksconsistent with dairy pasture, except for wetland areas which branch off the edges ofthe watercourse forming a part of the flood plain.[4] On 24 February 2021, in response to a complaint alleging unlawful earthworkswithin a stream, Waikato Regional Council (WRC) officers inspected the McWattRoad properties. An inspection of the McWatt Road properties identified an area ofearthworks originating south of the Maramarua Forest extending to the intersection ofState Highway 2. The length of those earthworks and the streambed disturbance isapproximately 1390 metres. The watercourse upstream of the excavated area wasslightly different in nature and appearance containing thick vegetation and sediment.The newly excavated channel was approximately 1.3 metres deeper than the non-excavated. A flow of water was visibly running through the uncut watercourse andflowing into the base of the recently cut channel.[5] To better record details of the inspection, WRC officers classified theexcavated watercourse into three sections referenced as Area 1, Area 2 and Area 3.[6] Within Area 1, at the northern most end, a contractor employed by GFL hadeffectively excavated a consistent V shape channel within the flow path of thewatercourse. The approximate measurements along this area of the watercourse being:(a) 2.2 metres across the top;(b) 0.9 metres across the base; and(c) 1.4 metres in depth.[7] A small amount of water, ranging between 40 – 100 mm in depth, was notedflowing through the channel. Further to the east, near Okaeria Road, a second tributarywatercourse feeds into the main watercourse which had also been excavated to thesame scale as the main watercourse. Approximately 350 metres of the mainwatercourse in Area 1 had been excavated. In addition to this, approximately200 metres of the second tributary watercourse had also been excavated.[8] Within Area 2, the contractor had further excavated a V shape channel withinthe flow path of the watercourse. However, the scale of the excavation was moreextensive and had increased in size. The approximate measurements along this areaof watercourse being:(a) 3.0 metres across the top;(b) 1.2 metres across the base; and(c) 2.0 metres in depth.[9] The excavation in this area had encroached into a wetland. Two small cuts hadbeen made within the eastern bank of the main watercourse. These cuts had createdchannels to allow drainage from the paddock into the main watercourse.Approximately 290 metres of the watercourse in Area 2 had been excavated.[10] Within Area 3, as with the previous areas, the excavation work had created a Vshaped channel. The approximate measurements along this area of watercourse being:(a) 2.2 metres across the top;(b) 0.9 metres across the base; and(c) 1.4 metres in depth.[11] Approximately 550 metres of the watercourse in Area 3 had been excavatedand concluded just prior to State Highway 2.[12] The earthworks and stream excavation had all been completed without anyerosion or sediment controls. Some remedial work was undertaken along parts of theflood plain post excavation with spoil being power hoed and re-seeding having takenplace. Along the length of excavated watercourse, WRC officers noted numerous deadeels in the paddock as well in and around the piles of material that had been removedduring the excavation. The eels appeared to have been dead for a couple of days.Within the watercourse itself, WRC officers again noted numerous dead or dying eelsas well as eels which appeared to be struggling to find space in the shallow pondingwater. Within a straightened span of 50 metres along Area 3, 48 dead eels werecounted in the water.[13] Section 13(1)(b) of the RMA states that no person may, in relation to a river,excavate or otherwise disturb the bed unless expressly allowed by a resource consent.A river is defined in s 2 of the RMA and includes a continually or intermittentlyflowing body of fresh water, and also includes a stream and modified watercourse.[14] The sole director of GFL, Mr Gregan, was spoken to and in explanation statedthat he had engaged a contractor, Steve Barker Limited (SBL), to construct a farm raceand extend the culverts in the "drain" on the property. While the excavator was there,he directed SBL to clean out the "drain". The "drain" was completely blocked and notallowing water to flow, causing extensive flooding during high rainfall. He said thegrazeable pastoral land already existed, but parts became very wet and full of rushes.During the summer months the wetland dried out. He believed the watercourse to bea "drain" as it was straight and did not have continuous flow. To his knowledge the"drain" had not been cleaned out for 40 years.District Court sentence[15] The District Court originally gave a sentence indication dated 26 May 2022.After setting out the summary of facts and reviewing the submissions of counsel forboth WRC and GFL, Judge MJL Dickey concluded on the issue of culpability:[38] GFL as landowner has a responsibility to ensure that any works whichoccur on its land are undertaken lawfully. While it may contract with anotherto undertake works on its behalf, that responsibility remains. In determiningits culpability for offending, the Court will consider the steps it took to ensurethat the works were lawful. GFL hired an experienced company, SBL, whosedirector had been in the industry for over 40 years, to construct a farm race,extend culverts in a drain and clean out the drain. In terms of the agreedsummary of facts what Mr Gregan determined to be a drain was a watercourse.[39] The works that were undertaken adversely impacted approximately,1,390m of the watercourse and, as I have found, had a low – moderate adverseeffect on the environment.[40] Despite engaging SBL, I find that GFL should have enquired of theCouncil or SBL as to the legality of the proposed works. The works were ofsome significance and should have triggered for GFL the need to makeenquiry. I find the company was careless. I do not accept that the activity wascommercially motivated as such, but note it benefitted from the improvementsto its land.[16] As to the starting point of any fine for the offending, the Judge reviewed thesubmissions of counsel for WRC and GFL. WRC submitted a starting point of$65,000 was appropriate based on similar cases. Counsel for GFL submitted that thestarting point proposed by WRC was manifestly excessive and consistent with aCouncil which was financially motivated to prosecute and strive for the highestpenalty it could achieve. After reviewing various factors, the Judge noted that counselfor GFL submitted that a starting point of no more than $25,000 was justified. TheJudge stated that she considered an appropriate starting point was in the range of$40,000 to $50,000, which broadly aligned with cases to which she was referred andtook into account her findings on effects and culpability. The Judge determined theappropriate starting point was $45,000. The Judge then indicated that she would adopta discount of 10 per cent for good character. The Judge, however, said she wouldaddress any discount for a guilty plea if the sentence indication was accepted.[17] It was accepted. At the subsequent sentencing hearing, the Judge noted thatthe outstanding matter was whether the full 25 per cent discount for the guilty pleashould be allowed. After reviewing the procedural timeline and the submissions ofcounsel for WRC and GFL, the Judge noted that in Hessell1 a full 25 per cent discountfor a guilty plea was generally given when a plea is entered at the first reasonableopportunity. The Judge noted that it struck her as inappropriate to give the samediscount to a defendant who unconditionally pleaded guilty at the first or secondappearance and to someone who elected not to enter a plea until after a sentenceindication. The Judge stated that if a full 25 per cent discount is commonly allowedfollowing sentence indications that could be viewed as having incentivised defendantsand their counsel to seek sentence indications because there is no penalty for doing soby way of reduced guilty plea discount. In the circumstances, the Judge determined itwas appropriate to allow a discount of 20 per cent for the guilty plea by GFL.Applying a discount of 30 per cent to the starting point (10 per cent for previous goodcharacter and 20 per cent for guilty plea), the Judge convicted GFL and imposed a fineof $31,500.Prosecution of Steve Barker Limited (SBL)[18] The contractor engaged by GFL to undertake the work, Steve Barker Limited,and its sole director Mr Stephen Francis Barker, were also charged with the sameoffence. SBL also sought a sentence indication, which Judge MJL Dickey issued onthe same day as that in respect of GFL.[19] The Judge concluded on the issue of credibility of SBL:[38] I find that Mr Barker, the sole director of SBL, with 40 years ofexperience in the industry, should have known better than to undertake works1 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.on the farm without checking if a resource consent was required. He statedthat he believed the watercourse was a drain – quite simply he could havechecked this point with the Council.[39] [Counsel for SBL] submitted that the identification of what is a riverdistinct from a drain is not without difficulty, pointing to the analysis in theCouncil's memorandum of 30 June 2021. That may be so, but it does notchange the obligation to ensure that the works comply with the WaikatoRegional Plan and the RMA. Mr Barker could have checked this point withCouncil. No enquiry was made. The company's previous formal warningfrom the Council is relevant to my assessment as it related to clearance of anunnamed tributary and no adequate erosion and sediment controls being putin place. At the least, it should have alerted the company to the need forcontrols and the need to identify waterways. Given its experience, I find thatSBL was highly careless in the way it approached the works.[20] The Judge stated that she considered an appropriate starting point was in therange of $50,000 to $60,000, which was $10,000 more than the range determined bythe Judge to be appropriate for GFL. She thought SBL should have known better. Ithad received a formal warning some years prior about works and tributaries. TheJudge settled on a starting point of $60,000 at the higher end of the range "because ofthe defendant's experience". This was $15,000 more than the starting point adoptedfor GFL. She said she would address any discounts for good character and a guiltyplea if the sentence indication was accepted.[21] It was accepted. In a reserved sentencing judgment dated 7 October 2022,2 theJudge gave SBL a five per cent discount for good character, which was a reduction offive per cent on the discount which would have been available were it not for theformal warning SBL received some years previously. In addition, the Judge gave SBLa discount of 20 per cent for its guilty plea. Applying a discount of 25 per cent to thestarting point (five per cent for previous good character and 20 per cent for guiltyplea), the Judge convicted SBL and imposed a fine of $45,000. The charge againstMr Barker personally was withdrawn.Appeals against sentence[22] The test to be applied in any appeal against sentence is to ask whether therehas been an error in the sentence imposed and, if so, whether a different sentence2 Waikato Regional Council v Steve Barker Limited [2022] NZDC 19574.should be imposed.3 In a sentence appeal, the focus is more on the end sentence. Anappeal court ought not to tinker with the end sentence if the end sentence is in anappropriate range.4Grounds of appeal[23] In essence, the grounds of appeal are:(a) The starting point adopted (and therefore the end sentence) wasmanifestly excessive.(b) The Judge erred by not giving the appellant full credit for its guilty plea.There is said to be a pattern emerging in the District Court presidedover by Environment Court Judges where guilty plea credit is beingreduced simply because a sentence indication is sought. The appellantsubmits that such an approach is wrong in principle.[24] The combination of the excessive starting point and the Judge's failure to givethe appellant full credit for the guilty plea meant that the end sentence is manifestlyexcessive. Counsel submits that the appeal should be allowed and a fine of no morethan $16,250 substituted, being a starting point of $25,000 less 35 per cent discount(10 per cent for good character and 25 per cent for guilty plea).Starting point[25] There is no tariff or guideline judgment for sentencing involved in this type ofoffending. Counsel for GFL cited three cases, which he submitted may be of someassistance in assessing what may be the appropriate starting point. These were:3 Criminal Procedure Act 2011, s 250(2).4 Ripia v R [2011] NZCA 101 at [15].Waikato Regional Council v Hold the Gold Limited5[26] In Hold the Gold the length of the stream bed affected was slightly more thanthe present case – at 1,510 metres. However, the prohibited disturbance took placenot when the defendant was undertaking a business activity, but when he was engagedin an environmental restoration programme, which had earlier involved the RegionalCouncil. It was, moreover, "not that the work was done per se, but rather how it wasdone that caused significant adverse environmental effects".6 Remediation plantingcosting over $84,000 was undertaken and a restorative justice conference was held,following which the Waikato Regional Council did not seek a fine, being content witha conviction. Nonetheless, the Judge thought a fine for the defendant's carelessnesswas warranted and adopted a starting point of $30,000, which after various discountscame down to a fine of $16,875.Otago Regional Council v MFS Ventures Limited & Nelson7[27] In MFS Venture Limited, the length of the stream bed affected was considerablyless than the present case – at 500 metres. The excavation took place while materialin the watercourse, which had accumulated because of storm events earlier in the year,was being removed. The removal from waterbodies of material which hasaccumulated as a result of storm events is a permitted activity under the Regional Planprovided that alluvium is not removed, and a series of other conditions met. Alluviumwas, however, removed as part of the process. In addition, weeds and vegetation,which formed part of the in-stream aquatic environment, were removed, which wasnot permitted either. The Judge commented, "this is not the worst case of offendingby any stretch of imagination"8 and adopted a starting point of $20,000, which sheuplifted by 10 per cent on account of a previous conviction for discharge of effluentbefore discounting the adjusted starting point by 25 per cent for an early guilty plea.In the end, a penalty of $16,500 was assessed as appropriate.5 Waikato Regional Council v Hold the Gold Limited DC Hamilton CRN-14019501673, 19December 2014.6 At [23].7 Otago Regional Council v MFS Ventures Limited & Nelson [2018] NZDC 11952.8 At [17].Waikato Regional Council v Veen9[28] In Veen the length of the stream bed affected was considerably less than thepresent case – at 568 metres. Mr Veen had completed the earthworks himself for thepurpose of fencing off and cleaning the waterway. He believed the waterway was afarm drain, which he could clean. Mr Veen was extremely distraught at the prospecthe might receive a criminal conviction for actions he thought were commendable andin line with what he understood would benefit the environment, rather than createadverse effects. In setting a starting point of $37,000, the Judge took into account:10(a) the extent of the earthworks;(b) the defendant's lack of awareness of the relevant rules;(c) the adverse effects of the earthworks; and(d) the adverse cumulative effects of discharges in New Zealand'swaterways.[29] The Judge then gave a discount of 10 per cent for Mr Veen's good characterand 25 per cent for an early guilty plea, which led to an end penalty of $24,050.[30] Counsel for GFL then referred to the cases cited at sentencing by theprosecutor, which he submitted were considerably more serious than the offending inthe present case. Two of these involve starting points of $45,000 – the same startingpoint as was adopted in the present case.Waikato Regional Council v Whakapona Farms Limited & Greenbank11[31] In Greenbank the defendant was granted a resource consent subject to severalconditions to establish an access road to a preferred building site following thetopography of the land. The consent was supported by an earthworks plan from asurvey company. Mr Greenbank went well outside the scope of the intended9 Waikato Regional Council v Veen [2021] NZDC 23501.10 At [55].11 Waikato Regional Council v Whakapona Farms Limited & Greenbank [2019] NZDC 15533.earthworks excavating large amounts of soil to achieve what he thought were morepreferable gradients for the driveway. Mr Greenbank did not install any erosion orsediment controls and soil material was eroded and discharged into watercourseswhich became heavily silted. Mr Greenbank then excavated two watercourses belowculverts he had installed to remove the sediment. Both watercourse beds and bankswere excavated for about 60 metres downstream. Mr Greenbank then diverted thesetwo watercourses to a newly formed drain and then filled in or completely excavatedthe original watercourses in order for the driveway to run through where they hadbeen.[32] In explanation, Mr Greenbank said he wanted a driveway not a ski-ramp. Healso said he was not aware of the rules regarding earthworks and work within thewaterways. The sentencing Judge adopted a starting point of $45,000 and gavediscounts of five per cent for good character and 25 per cent for an early guilty plea.The final sentence imposed was $32,062.50.Waikato Regional Council v Okawa Limited & Greener Earthmoving Limited12[33] In Okawa the length of the stream bed affected was less than the present case– at 1,063 metres. Okawa had engaged a contractor to mechanically clean the fulllength of the Mangakaeo Stream and tributary within its property, which included theexcavation of a substantial length of the stream bank and bed. The director of Okawareferred to the stream and tributary as drains. He said he had cleaned the drains witha digger numerous times in the past to clear silt, which he believed was the result ofdischarge from a nearby quarry. The director acknowledged being told by the quarry'senvironmental service manager that a resource consent would be required to undertakethe work. He said he discounted that advice because he did not trust him.[34] The Judge said a starting point of $65,000 to $75,000 was not untoward. Shesaid she fell short of adopting a starting point within this range on this occasionbecause she was of the view that a further warning to the farming andearthmoving/contracting industry should be signalled. The Judge said:1312 Waikato Regional Council v Okawa Ltd [2018] NZDC 7725.13 At [63] (footnote omitted).The opportunity to reread many of the cases provided to me reveal that themessage about the need for caution when excavating waterbodies, particularlywhere they maybe viewed as "drains", is still not being fully appreciated. Itis somewhat concerning that the Court has been talking about these sorts ofmatters for many years.[35] The Judge therefore adopted a lesser starting point of $45,000 for Okawa. Shetook into account the extent of the excavation, the likely impact on the environmentand her findings that the offending was reckless. Discounts of five per cent forprevious good character, three per cent for remorse and 25 per cent for a guilty pleawere granted, which led to a fine of $31,500.Discussion of starting point[36] In my view, the decisions provided show that there is a range available to theCourt when determining a starting point for the offending. GFL is a limited liabilitycompany and, accordingly, the maximum fine is $600,000. This can be compared tothe maximum fine of $300,000 for an individual. Mr Veen was prosecuted as anindividual and the starting point adopted for him was $37,000. Mr Greenbank wasalso prosecuted as an individual and the starting point adopted for him was $45,000.There is an argument that starting points for companies should, as a matter of principle,be greater than starting points for individuals because the maximum fine forcompanies is double that for individuals.[37] Counsel for GFL urged me to, nonetheless, treat GFL in much the same wayas an individual because, in effect, it was a husband and wife operation not on the scaleof large commercial operations. I acknowledge that to be case and, accordingly, willnot uplift what I consider to otherwise be the appropriate starting point for anindividual because the appellant is a company.[38] Of the cases cited, I am of the view that Veen and Okawa are the most similar.In Veen, however, the length of the stream affected was considerably less than thepresent case. A starting point of $37,000 was adopted. In Okawa, the Judge said astarting point of $65,000 to $75,000 was not untoward, but settled on a lower figureof $45,000 with a warning to the farming sector.[39] I am of the view that the starting point adopted of $45,000 is therefore withinthe range that can properly be justified by accepted sentencing principles. No error onthe part of the sentencing Judge in adopting the starting point has been identified.Discount for guilty plea[40] Counsel for GFL submits that the Judge erred by not giving the appellant fullcredit for its guilty plea (25 per cent). Instead, the Judge allowed 20 per cent.[41] The prosecution timeline is as follows:(a) GFL was summonsed to appear in the Thames District Court on12 October 2021.(b) Before 12 October 2021, and without input from GFL, the Courtadjourned the case to 9 November 2021.(c) On 7 November 2021, counsel for GFL filed a memorandum seeking asentence indication. At the time of filing, counsel understood that therewas time available on 30 November 2021 for a sentence indicationhearing and proposed a timetable for the filing of submissions.(d) Sometime after 7 November 2021, and without any further input fromGFL, the Court adjourned the case to 21 December 2021.(e) On 14 December 2021, counsel for GFL requested the case betransferred to the Hamilton District Court because there was noEnvironment Court Judge in Thames, endeavouring to speed up theprocess.(f) The Court then adjourned the case to a nominal date of 14 January 2022in the Hamilton District Court for the Registry to identify an availablesentence indication hearing date.(g) On 14 January 2022, the Court allocated a sentence indication hearingfor 8 February 2022.(h) On 8 February 2022, a sentence indication hearing was held beforeJudge Dickey who reserved her decision. This was the first appearanceof GFL in Court.(i) Judge Dickey issued her sentence indication decision on 26 May 2022.(j) GFL filed a memorandum dated 12 June 2022 accepting the sentenceindication and advising that it would plead guilty.(k) GFL entered a guilty plea by counsel on its second appearance in Courton 1 August 2022.(l) GFL was sentenced on 7 October 2022.[42] Subpart 4 of the Criminal Procedure Act 2011 provides for a defendant to seeka sentence indication. Section 60 provides that a sentence indication is a statement bythe Court that, if the defendant pleads guilty to the offence alleged in the charge, atthat time, the Court would or would not (as the case may be) be likely to impose onthe defendant a sentence of a particular type or types and of a particular quantum.[43] Counsel for GFL submits that the words "at that time" ought to be interpretedto mean when the sentence indication is requested. When considering whether theguilty plea was entered at the earliest opportunity (in which case GFL would beentitled to a full 25 per cent discount) GFL should not be disadvantaged where thereis a delay in obtaining a sentence indication. In this case, the sentence indication wassought before GFL's first appearance on 7 November 2021.[44] The guideline decision in respect of guilty plea discounts is the Supreme Courtdecision in Hessell v R.14 The Supreme Court overturned the Court of Appeal decision,but made reference to it as follows:15[19] The judgment also spelt out what the Court meant by "first reasonableopportunity" to plead guilty (generally the first or second appearance) andstipulated the date should not be extended because the defendant was engagedin plea bargaining, disputing the prosecution's summary of facts, challengingthe admissibility of evidence, or was awaiting a sentence indication. TheCourt also emphasised that the maximum discount was to be available only tothose prepared to acknowledge their guilt at the outset.[45] The Court went on to set out the various policy reasons behind a guilty pleadiscount, noting:16[45] In the administration of criminal justice, courts give credit insentencing for a guilty plea principally for policy reasons. The policyexpressed in s 9(b) reflects the benefits that a guilty plea delivers to theadministration of justice and to those who otherwise must participate in thetrial process. Avoiding the need for a trial saves the government costsassociated with the judiciary and providing prosecution and defence services(the latter most often through legal aid). There are also savings and fees paidto witnesses and jurors and in costs associated with the use of court facilities.Another benefit is the reduction in the backlog of trials. The number andlength of criminal trials has increased, with consequent delays in personscharged facing trial. This impedes the effective operation of the system in theinterests of justice. As well as such savings in public expenditure and demandson state resources, the social utility of guilty pleas includes benefits forwitnesses and, in particular, victims who are speared the stress of givingevidence in the adversarial context of a criminal trial. A guilty plea often alsoassists victims and their families through its acknowledgement ofresponsibility for the offending. Even very late pleas will usually generatesome of these systemic and social benefits. These considerations are based onexpediency and social utility but are of importance to the effective operationof the criminal justice system. In consequence, it is now generally recognisedthat providing encouragement for guilty persons to admit their guilt is anecessary incident of criminal justice.[46] The Supreme Court made it clear that the extent of any discount should remainwithin the sentencing court's discretion and that Judges should have regard to thedegree to which the plea of guilty facilitates the administration of the criminal justicesystem and the objective circumstances in which the plea of guilty was made including14 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.15 Above n 14.16 Footnote omitted.whether the offender pleaded guilty at the first reasonable opportunity to do so andwhether the offender had legal representation.[47] Additionally, the Court noted:17 if the circumstances indicate that a defendant is not fully prepared toacknowledge guilt at the outset, that must be factored into the sentence. Therequirement that a defendant must always plead guilty before entering thedisputed facts process to get the maximum discount is too rigid. The bettercourse is to permit sentencing Judges to assess the value of the plea in theparticular circumstances, without a rigid requirement for application of a scaleof discounts (dependent on the exact timing or the plea). The same approachshould apply where the defendant has exercised his or her right to challengeto the admissibility of evidence.[48] The Supreme Court here instanced the disputed facts process or a challenge tothe admissibility of evidence. It could equally have instanced the sentence indicationprocess as the Court of Appeal did in the passage quoted by the Supreme Court.[49] In the present case, the Judge was best placed to assess the value of the plea inthe particular circumstances without a rigid requirement for application of a scale ofdiscounts dependent on the exact timing of the plea. The fact that a sentence indicationis sought before the first call should not automatically mean that a full 25 per centdiscount is appropriate.[50] The fact that a sentence indication was sought by itself set up a process thattook many months, even acknowledging that GFL did not cause or contribute to thosedelays. The delays were systemic and costly to the community.[51] Furthermore, the fact that in many other cases a full 25 per cent discount maybe granted, for example, where a sentence indication is not sought until the case reviewhearing, does not mean that the Judge fell into error in granting a 20 per cent discountin this case.[52] In any event, the difference in penalty is not so large if a 25 per cent discounthad been applied that an adjustment is required. If it had been applied, it would haveresulted in a fine of $29,250 rather than the $31,500 actually imposed. It should be17 Above n 14, at [61].remembered that the Supreme Court eschewed a rigid requirement for application ofa scale of discounts. GFL has been unable to satisfy me that the Judge fell into error.The issue was fully argued and the Judge's decision well reasoned.Parity[53] Section 8(e) of the Sentencing Act 2002 provides that in sentencing orotherwise dealing with an offender the Court must take into account the generaldesirability of consistency with appropriate sentencing levels and other means ofdealing with offenders in respect of similar offences in similar circumstances.[54] Here, GFL and SBL were co-offenders. GFL owned the property and engagedSBL to do the work. SBL followed GFL's instructions without querying them.Because of SBL's experience, the previous warning and failure to make enquiry, theJudge viewed SBL as more culpable. She therefore set the starting point for SBL at$60,000, compared with $45,000 for GFL. It could be argued that if GFL's fine wasreduced on appeal from $31,500 to $16,250, it would no longer be consistent with thefine of $45,000 imposed on SBL. However, while consistency is a necessary value, itdoes not impose absolutes. In the present case, the Judge found that despite engagingSBL, GFL should also have enquired about the legality of the proposed works eitherfrom Council or SBL. The works were of "some significance and should havetriggered for GFL the need to may enquiry". The work undertaken adversely impactedapproximately 1,390 metres of watercourse and had a low to moderate effect on theenvironment.[55] While some disparity in the starting points is warranted because of SBL'sextensive experience in the industry and the previous warning it received, thedifference in culpability would not justify such a variation in penalty.Result[56] The appeal is dismissed.____________________________Woolford J