Prosecution Under RMA (M4)

Question 1

What is discretion to prosecute?

Answer 1

Isn’t mandatory to prosecute and there are prosecution guidelines set by the “Crown Law Office” to follow if they do

Question 2

What are the two tests for prosecution?

Answer 2

1) whether there is sufficient evidence
2) and the public interest test (a person not charged for a major crime how would the public react?).

Question 3

Who makes the decision to prosecute?

Answer 3

Decisions should be free of political influence.

“In practice in NZ, the independence of the prosecutor refers to freedom from undue or improper pressure from any source, political or otherwise. All government agencies should ensure the necessary processes are in place to protect the independence of the initial prosecution decision.”

Crown Law Prosecution Guidelines 2013

Question 4

What section and Part are Enforcement and protected customary rights?

Answer 4

•Part 12 (enforcement) does not apply to the exercise of a protected customary right - s 309(4)

•Except that ss 310-313 (declarations) and ss 330, 331 (emergencies) do apply (s 309(5))

Odd exception to provisions in the RMA for protected customary rights which is a particular right to iwi or hapū in the marine coastal area following a process, so the whole of part 12 with the exceptions of declarations and emergencies does not apply to the exercise of protected customer right

Question 5

What section are the most serious offences under?

Answer 5

s 338(1), (1A), (1B)

Question 6

Under what section are penalties for offences?

Answer 6

s 339

Question 7

What section is Vicarious liability?
(The idea that an employer is responsible for someone else)

Answer 7

s 340

Question 8

What is strict liability offences and what section is it under?

Answer 8

s 341(1)
Regulatory or environmental offences is the presumption that all the prosecutor has to do is prove u did the act or failed to do something you should have done beyond reasonable doubt (doesn’t need to prove you intended to commit an offence).

Question 9

What section are some alternative penalties?

Answer 9

•s 339(1)
•s 314
•s 128(2) consent authority can review a resource consent under review. May lead to cancellation of consent if review finds significant adverse effects on the environment resulting from the exercise of the consent

Question 10

What are some things to look at when sentencing is involved?

Answer 10

•nature of the environment affected
•extent of damage inflicted
•whether offence was deliberate
•attitude of defendant
•size, wealth, nature of operation
•extent of attempts to comply
•remorse
•profits realised by offense

Question 11

What act was established after Machinery movers Ltd v AKL RC (1993) 2 NZRMA?

Answer 11

Sentencing Act 2002

•Applies to all offences including under the RMA
•Purposes of sentencing - s 7
•Making amends - s 10 (restorative justice)
•Focus on the offence in comparison to other offences of the same type
•Also look at the circumstances of the offender
•Expands on Machinery Movers list - see Selwyn Mews case