The Court of Appeal recently upheld a custodial sentence (prison) issued by the lower court for environmental breaches. The case explored the actions of a developer and his systemic disregard for the protection measures provided for pōhutukawa and tōtara trees in the Operative Auckland District Plan and Unitary Plan.
Case note: Lau v R —  NZCA 151; BC201860588
E Kuoh Lau is a property developer and sole director of a company which had a lease over the rural property in Waiwera. The property features areas of pasture and substantial areas of regenerating and left over coastal forest which is of significant ecological value. Mr Lau was sentenced two months and two weeks’ imprisonment by Judge Kellar in the District Court at Auckland (R v Lau  NZDC 1133) after he had pleaded guilty to a charge that he had contravened or permitted a contravention of the Resource Management Act by damaging six pōhutukawa trees and one tōtara tree on the site. All trees were protected by the Operative District Plan and the Auckland Unitary Plan. There was evidence that Mr Lau intended to build new dwellings in the location of the trees.
Judge Kellar rejected Mr Lau’s explanation that the trees were damaged by the storm and found the damage to the trees, some of which were over 100 years old, to be “brutal”, deliberate and terminal. The Judge said Mr Lau had showed little respect to Council officers throughout the period of works at the site leading up to the offending and had shown flagrant disregard for the regime under the RMA, knowing that resource consent was required to cut down the trees, and worse, knowing that the resource consent applied for had not been granted.
The Judge referred to the usual sentencing purposes of accountability and denunciation and noted the need to deter Mr Lau from engaging in similar flagrant and deliberate behaviour. He also considered the need for general deterrence against those who might be minded to deliberately disobey environmental rules in carrying out developments for the purposes of gaining financially. Accepting that Mr Lau had no prior convictions, Judge Kellar said that good character did not relate simply to a lack of prior convictions but can be assessed in the present case in terms of his past conduct in environmental matters which was evidenced by his having been issued with numerous abatement notices and enforcement orders by the Environment Court regarding his breaches of the RMA on many different sites. Further Mr Lau owed Auckland Council $379,000 in unpaid costs awards.
The Judge found that the sentencing objectives of the Sentencing Act would not be achieved by a fine or community work; the offending was flagrant and deliberate, undertaken for the purpose of achieving what would have been significant financial gains. Judge Kellar took a starting point of three months’ imprisonment and gave a discount of two weeks for the late guilty plea. Mr Lau appealed against the severity of sentence.
The Court of Appeal considered the relevant case authority submitted by Mr Lau regarding tree removal. The Court stated that at first sight, a sentence of imprisonment in response to the destruction of seven trees may seem unjustifiably heavy-handed, given the availability of alternatives to imprisonment in community-based sentences such as community service, community detention and home detention, and the requirement in the Sentencing Act 2002 to impose “least restrictive outcome” appropriate. The Court of Appeal found [at 23] that Mr Lau was not a suitable candidate for a community-based sentence such as community or home detention. He has demonstrated throughout a complete disregard for the law and the orders of regulatory authorities, and he has failed to display a genuine acceptance of his responsibility for the offending. The Court found that the present case was more serious. The facts speak for themselves; the nature of the environmental destruction involved; the cynical and deliberate nature of the offending, carried out with the full knowledge of its unlawfulness; and the absence of any mitigating factors such as genuine remorse, make a community-based sentence insufficient to meet the important principles of denunciation, accountability and personal and general deterrence. The Court further noted [at 24] that in cases such as this, involving deliberate, significant and financially motivated breaches of rules designed to protect the natural environment, anything short of a sentence incorporating some custodial element is unlikely to have the desired salutary effect.
The Court of Appeal concluded that the sentence imposed was stern but justified, and was properly available to the sentencing Judge. The appeal was dismissed. Lau was ordered to surrender himself at the Auckland District Court on 18 May.
In conclusion, this decision is a warning to others that flagrant disregard for District and Regional Plan rules and for the environmental protections in the RMA generally will be punished severely.
Published: 15 August 2020