RMA sentencings - a trial within a trial

By Hans van der Wal, Associate

First published in Local Government Magazine, 30 June 2008

If someone pleads guilty of an offence under the Resource Management Act, that’s the end of it, right? Wrong! It can be followed by a disputed facts hearing with witnesses being cross-examined, followed by lengthy arguments from counsel about sentencing. How can this be, if the guilty plea is meant to simplify things? The answer lies in some unusual features of RMA offences and what needs to be proven to impose a penalty.

A guilty plea means nothing more than that the bare elements of the offences have been established. The Court will know nothing more unless a summary of facts has been agreed and filed.

Even though the RMA is about adverse effects, its offence provisions make it quite possible to commit an offence that has no adverse effects at all. Those provisions also make it possible for an offence to be proven without evidence that the offender was personally involved (“vicarious liability”), deliberately offended (“strict liability”), or even knew what was happening. Yet without this information, a Court cannot decide how bad the offending was and how high the fine should be.

Because of this, proving the facts as to the seriousness of the offence becomes the main focus once a guilty plea has been entered. These facts will determine whether the defendant will get a discharge (like an acquittal) or up to two years in prison and/or up to a $200,000 fine. It is up to the prosecution to prove these facts beyond a reasonable doubt. If it cannot, the guilty plea is virtually worthless.

While a summary of facts can be provided when the guilty plea is entered, it is not a requirement, because the charge or the “information” sets out what the offence is. If the defendant and prosecutor cannot agree on the summary of facts, which will happen if it paints a too serious or even incomplete picture, a disputed facts hearing will be held, if the Court considers the dispute is about something that will influence the sentence. That hearing will run much like a normal trial, with witnesses being called and cross-examined and the Court making a final determination of fact.

That is not the end of the story. Argument in Court is then required from lawyers for both sides, about what impact the facts should have on the seriousness and the penalty. Because of the importance of seriousness for RMA offences, complex legal principles from Court of Appeal, High Court and District Court sentencing decisions, as well as the Sentencing Act, need to be applied. A prosecutor arguing off a threadbare agreed facts summary is risking a discharge without conviction or a “wet bus ticket” fine, while a defence lawyer stuck with a draconian summary or facts determination will struggle to avoid a hefty penalty.

All of this makes the following critical for RMA prosecutions:

Remember, a guilty plea is based on the offence, not its seriousness
Think twice about what a summary of facts says about seriousness before accepting it
Make evidence as to seriousness just as much of a priority as other evidence
Don’t lightly concede key facts as to seriousness just to avoid a disputed facts hearing

Useful as these tips may be, they show that RMA sentencing is fast becoming the key focus in a very specialist area of law – a crossover between the civil basis of the RMA and the Criminal jurisdiction of the District Court. Those who venture into it without a good grounding in both do so at their peril.

Location http://www.duncancotterill.com/index.cfm/1,159,464,0,html