Former Bella Vista director Danny Cancian. Photo / File
Bella Vista developer Danny Cancian was ''manipulative'', a ''bully'' and ''strong-armed'' the city council, says a prosecutor seeking the maximum fine.
Prosecution counsel Richard Marchant made the comments during a court sentencing hearing yesterday for Cancian and others. The court also heard that Cancian was now working at a building site, specifically on a retaining wall, in Pyes Pa.
But the lawyer representing Cancian and Bella Vista Homes, Bill Nabney, said there were only certain acts for which Cancian had any criminal liability.
"Mr Cancian was responsible for two inadequate [wall] footings ... and failing to prime timber."
In March 2018, 21 homes and building sites that were part of the failed Bella Vista Homes development at The Lakes were evacuated due to safety fears. The Tauranga City Council later prosecuted five parties involved in the development. The court case began on March 16, last year and eventually finished on July 27.
Bella Vista Homes Limited and its director Cancian, engineer Bruce Cameron and his company The Engineer Limited, and bricklayer Darrel Joseph, were each convicted for Building Act breaches.
The five parties were expected to be sentenced in Tauranga District Court yesterday. None appeared in court, although were not required to do so because their convictions would not result in potential jail time.
Marchant called for Judge Paul Mabey QC to consider the maximum penalty for Cancian - $200,000.
Marchant said Cancian was a ''bully'', ''manipulative'', driven by profit margin, and that he ''cut corners'' and ''strong-armed the council''.
He said on one occasion Cancian arrived at the council's chief executive's office with a lawyer threatening a malfeasance case.
"There hasn't been another case like this in the country where a development has been essentially levelled because of the owner's personality. We've looked for them and they just don't exist."
Marchant said Cancian's "breach of trust", "disregard for the rules" and "arrogance" directly related to the consequences of the Bella Vista fallout.
"It's hard to imagine a more serious series of failures,'' he said.
"Such offending needs to be set in context in a factual narrative, which ultimately put people at risk at huge financial cost. There's nothing preventing Mr Cancian doing exactly what he did somewhere else, with a $10,000 fine, in the future.
"There's a real threat to public safety and potential for serious harm. There was actually emotional and financial harm."
Marchant said Cancian acted against the best interests of his buyers, company and council for his own gain and that such "reckless" and "dispassionate" behaviour – in a midst of a national construction boom - needed a strong statement in response that it would not be tolerated.
Marchant noted Cancian's previous statements that he may not be able to pay a fine.
Marchant told the court Cancian was now working at a building site, specifically on a retaining wall, in Pyes Pa.
"The idea that Mr Cancian is not in a financial position to pay the fine when it's clear that he's working in his wife's company defies belief."
Marchant also referred to properties Cancian personally sold and the withdrawal of $1.3 million from the company. The money was supposedly to pay a cousin who Cancian claimed made a death threat against him - an allegation neither Marchant nor Judge Mabey said they believed.
Judge Mabey said he would take any suggestion Cancian could not afford a fine "with a large grain of salt", stating Cancian would need to provide evidence.
"Mr Cancian lied to me at every turn in court."
Despite this, Judge Mabey told the court he could not penalise Cancian, or anyone else, solely on personality traits.
"The whole Bella Vista saga is a blot of this town's planning landscape and surely he's done no good to anyone that he was involved with. He's let down his buyers, driven by arrogance and profit motive, but that does not mean he should get the maximum penalty for three charges," Judge Mabey said.
"Bella Vista was always going to be a complete and utter disaster but whether or not I can penalise Mr Cancian today for being what he is or whether I sentence him according to the convictions is another matter."
Judge Mabey said Cameron "dropped the ball in a serious way", was incompetent, negligent and reckless "but probably not intentionally so".
"Mr Cameron let his profession down and let everyone down."
Mabey said there were other aspects of Bella Vista that also needed to be considered.
"The council caved to pressure when it shouldn't have and let mistakes go too far. There were plenty of red flags from day one that required certain authorities to be highly alert to what was happening.
"Bella Vista got to where it got to because there was not enough steel on show at City Hall in dealing with Mr Cancian. That's probably testament to his ability to push people around."
Mabey said there were council staff he had sympathy for because: "Those above them let them down … They weren't protected and they should've been.
"Mr Cancian might be in the frame at the moment but it's not entirely his responsibility.
"The taxpayers in this city have been failed by people high up [in council]."
Cancian's and Bella Vista Homes' defence counsel Bill Nabney asked Judge Mabey to consider a fine of up to $10,000 in total.
Nabney reminded the court his client was only convicted of three charges.
"It's all very well to say 'look at the context' but a person gets punished for their own criminal behaviour, not what's going on around them.
"There were only certain acts of which he had any criminal liability," Nabney said.
"Mr Cancian was responsible for two inadequate [wall] footings ... and failing to prime timber."
Regarding the claim Cancian was working on a building site, he commented it suggested the council was monitoring his client.
Mark Beech, acting on behalf of defence counsel Noel King for Cameron and The Engineer Ltd, referred to Judge Mabey's earlier references of Cameron letting his profession down, dropping the ball, and recklessness and said none of those situations were deliberate.
Defence counsel Tony Balme, acting for Joseph, said he accepted his client was "casual" regarding his work but whatever penalty Joseph received, it should be considerably lower than the others.
Judge Mabey told Marchant, in response to the request for a heavy penalty: "You've asked me to do something that no one else has done.
"The gap [between potential penalties suggested] is huge. I have an understanding of the issues. I now need to produce a decision that does justice to what I've been told today and to the finding I made back in December."
Judge Mabey adjourned the case to a nominal date of April 30, when a sentencing decision is expected.
Convictions and acquittals
In December 2020, Judge Paul Mabey QC released his reserved decision which found Danny Cancian and Bella Vista Homes guilty of three charges each in relation to non-compliant works at 297 and 301 Lakes Boulevard and 5 Aneta Way.
But the two defendants were acquitted on four further charges each relating to construction works at 297A, 299 and 301A Lakes Boulevard.
Bricklayer Darryl Joseph was convicted of the three charges he defended which related to block laying work he had undertaken at 297, 299 and 307 Lakes Boulevard.
His convictions related to defects in block walls and foundations including inadequate wall footings and reinforcing steel at those three properties.
Bruce Cameron and The Engineer Ltd were found guilty of six of the same charges each, relating to non-complying building works at numbers 297, 301, 303 and 307 Lakes Boulevard.
If a person fails to correct an instance of non-compliant work, they are liable for a maximum fine of $200,000 and a further $20,000 for each day the offence is continued.
Allowing the use of a building considered dangerous carries a fine of $100,000, with further fines of up to $10,000 for every day the offence is continued.
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