Tauranga City Council v Cancian [2021] NZDC 7606

Published 23 July 2021

Sentencing — buildings constructed contrary to a building consent — subdivision — inadequate inspection or assessment — public safety — harm to personal safety and property — Building Code — Building Act 2004, ss 40(1), 40(2), 40(3) & 389 — Wilson v Fowler HC Auckland AP203/98, 16 March 1999 — Banora v Auckland Council [2019] NZHC 2545 — Wellington City Council v Patel [2017] NZDC 6771 — Queenstown Lakes District Council v Buehler [2020] NZDC 13156 — Abatal Ltd v Waitakere City Council HC Auckland A24/02, 5 July 2002 — Rai v Manukau City Council HC Auckland CRI-2005-404-000409, 6 June 2006 — Auckland Council v Epsom Central Apartments LP [2021] NZDC 579 — Auckland Council v Wong [2020] NZDC 23613 — Tauranga City Council v Venture Developments Ltd [2018] NZDC 21378 — Auckland Council v Radius Contracting Ltd [2021] NZDC 938 — Auckland City Council v Ensom DC Auckland, CRI-2013-004-001657, 15 November 2013 — Queenstown Lakes District Council v The Wanaka Gym Ltd DC Queenstown, CRN08059500156, 21 October 2010. The defendants appeared for sentence on breaches of s 40 of the Building Act, where houses in a subdivision were found to have building defects and unsafe construction. The city council was the relevant consent authority for the issuing of subdivision and building consents in relation to the defendant's land and building contracts. Of the three defendants, two had a company that was linked to the offending. For the purposes of sentencing, the company and the defendant were considered one and the same. The Court followed the prosecuting counsel's submission that a lead charge should be adopted for each defendant, with uplifts added for other charges in application of the totality principle. Wilson principles were applied in sentencing each of the defendants. The start points for the fines were $60,000 combined for the first defendant and his company, $80,000 combined for the second defendant and his company, and $15,000 for the third defendant. The first defendant and his company were found to be equally liable, as the Court concluded that the company's culpability was reflected in its director's actions. Were it not for the liquidation of the first defendant's company, the Court would have apportioned the penalty evenly. In lieu of any company assets or means, the Court concluded that there would be no penalty apportioned to the company. The first defendant was in receipt of a job-seeker benefit at the time of sentencing, but the Court described this as a temporary situation and declined to reduce the penalty on this basis. On the three charges, the first defendant was fined $20,000 each, totalling $60,000. The second defendant and his company were found to have an elevated level of liability when compared with the first defendant, as the second defenant's failures in relation to the inspection of the properties in the subdivision were at a high degree. The offending was also aggravated by previous disciplinary action, leading to a $10,000 uplift. As such a penalty was required that satisfied the need for personal deterrence, preservation of public safety, and generally to those that fall below the professional standards required of them. The second defendant and his company were each fined $7500 on each of the six offences, totalling $90,000. The third defendant was a tradesman but the Court found that he still held a level of responsibility for compliance with building code requirements in the interests of building integrity, public safety and confidence in the industry. He was fined $5000 on each of the three charges, totalling $15,000. The Court concluded that 90 per cent of all fines imposed against the defendants were to be paid to the Tauranga City Council. Judgment Date: 28 April 2021.