Brian Rudman: 'Stocks' of restorative justice await developer

Auckland's earliest wrong-doers were publicly humiliated by being displayed in wooden stocks at the corner of busy Victoria and Queen Sts. About 150 years on, we shame our miscreants at something called a restorative justice conference.

Usually these heart-to-heart sessions between victim and offender pass unnoticed, but tonight's conference at the Onehunga Community Centre starring serial tree destroyer George Bernard Shaw has become something of a show trial, with the Auckland City Council pumping out public notices and press statements inviting us all to roll up and tell the property developer what we think. Leave your rotten tomatoes at the door, please.

Beginning at 6pm, it certainly sounds like more fun than Day Three of Simon and Wendy on TV One, and for Mr Shaw at least, more important. His performance tonight could put him in, or keep him out of, jail.

A year ago, one of Mr Shaw's offsiders cut down a protected, 100-year-old, Royal Oak pohutukawa. After nearly 12 months of denials, Mr Shaw confessed to a "very bad error of judgment" and pleaded guilty to the offence.

He has a past record of such behaviour. In 1997, a judge fined him $18,000 and warned that if he reoffended, the court "would not treat such matters as lightly".

Before Christmas, Judge Fred McElrea delayed sentencing pending the outcome of tonight's meeting. At it, members of the public will be invited to say how they've been affected by the offence and Mr Shaw will be allowed to speak. "After that time, those present will discuss a plan for how the loss to the community can be repaired."

No doubt aware that destroying a scheduled tree carries a maximum penalty of a $200,000 fine or two years in prison, and with the previous judge's warning ringing in his ears, Mr Shaw has already grovelled greatly, saying he wished he could turn back the clock, and paying the council $50,000 in costs.

Will it be enough? We'll know on February 13 when sentencing takes place. But history shows how important tonight's session may be.

Late last year, Environment Court judge Laurie Newhook and commissioner Ross Dunlop delivered a paper on penalties for illegal tree destruction entitled "To Cut and Run or Not ... " and concluded the answer was clearly "in the negative".

They said councils were very active in enforcing tree protection rules, and that penalties were increasing.

"The courts have been acting to deter defendants ... by means of higher levels of penalties imposed."

The paper noted that in 2003, Waitakere developer Andrew Borrett was sentenced to 20 weeks' imprisonment, reduced to 12 weeks on appeal, for, among other offences, clearing protected bush.

Judge Newhook also contrasted two examples of restorative justice conferences early last year. One involved a prosecution by Auckland City against a company called 12 Carlton Gore Rd Ltd and its director, Ms M. K. Lowe, before Judge McElrea.

Ms Lowe pleaded guilty to cutting three exotic and two native trees and offered "a fulsome apology", $8000 for landscaping the property and a $3000 donation to a local community association.

Judge McElrea was "prepared to place particular weight" on the conference outcome, convicted the company and ordered it pay the council's costs, but did not fine it.

"In view of the strong constructive response of the lady director, she was discharged without conviction."

But there was a "different outcome" from the attempted restorative justice conference in a prosecution of A. and I. Covich before Judge Robert Whiting. This didn't involve cutting trees, but the often-related activity of earthworks.

The defendants pleaded guilty, but "chose to use the [restorative justice] conference process to continue criticism of the [Waitakere City] council, and offered no remorse". Neighbours "were not satisfied with the generally equivocal and grudgingly offered apologies".

The judge refused any "credits" for the restorative justice process and considered imprisonment, but because of the age of the defendants, their "straitened circumstances" and previous good records, imposed a sentence of 300 hours' community work, with costs of $3500 awarded to the council.

From Mr Shaw's earlier expressions of contrition, one can presume he has been well-briefed on the above options.

In the end, though, whether he ends up inside for a brief period, is fined heavily and/or sent out to sweep the streets as penance, none of this really hits the developer where it hurts most.

To me, the only way to really hit a law-breaking developer is to slap a development freeze of say five or 10 years on the site. No development equals no profits, equals maximum pain, equals big "ouch" in pocket, equals won't do it again.