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Court of Appeal of New Zealand |
Last Updated: 8 April 2014
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellant |
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AND
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Respondent |
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Hearing: |
17 February 2014 |
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Court: |
Ellen France, MacKenzie and Mallon JJ |
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Counsel: |
M J Winders for Appellant
S K Barr and L Matehaere for Respondent |
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Judgment: |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by MacKenzie J)
Background
[1] The appellant appeals against a sentence of four years imprisonment, with a minimum period of imprisonment of two years, imposed by Judge Crosbie in the District Court at Dunedin in September 2013 on 15 counts under the Fisheries Act 1996 (the Act).[1]
[2] The appellant and two co-offenders were charged with offences involving the unlawful taking of paua, and related offences. The charges followed an investigation by the Ministry of Fisheries conducted between July 2010 and March 2011 into the taking of paua from a closed commercial area and its onsale to local fish and chip shops. The two co-offenders (T and H) entered guilty pleas and were sentenced in May 2012.[2] The appellant went to trial on 31 counts before Judge Crosbie and a jury on 28 February 2013. The trial was set down for two to three weeks. On the third day, the appellant pleaded guilty to an amended indictment containing 15 counts. Before sentencing, the appellant took issue with two of those counts and filed an application to withdraw his guilty pleas. There were further changes to some counts and an amended summary of facts was settled between the Crown and the appellant, before sentencing could take place.
[3] The counts on which the appellant was sentenced were six counts of making a false statement with the intention of obtaining a benefit under the Act,[3] two counts of obtaining a benefit by selling paua contrary to the Act,[4] as well as four counts of taking paua, two of selling paua and one of illegally possessing paua, all with the intention of obtaining a benefit contrary to the Act.[5] All counts carried a maximum penalty of five years imprisonment or a fine not exceeding $250,000, or both.
[4] The appeal was filed several days out of time. A notice was filed in time, but in the incorrect form. A correct notice was then filed. The application for extension of time is not opposed, and is granted.
The offending
[5] The appellant obtained customary authorisations from the local Tangata Tiaki, allowing the holder to take more than the daily limit of paua for a specified event on a single date. The appellant arranged for these customary authorisations to be issued to him on the basis of fictitious events. While they authorised the taking of paua on a single date only, the appellant used those authorisations to take paua on multiple occasions from the date of issue until the specified date. On some occasions he obtained extensions of time.
[6] The diving was undertaken by the appellant, usually accompanied by T or H who would act as boat hands. After the paua had been shucked and bagged, the appellant and H took the paua to the premises of a number of dealers in fish, where the co-offender negotiated sales to those dealers. The appellant is not a commercial licensed fish receiver or fish farmer and is not lawfully able to acquire or possess fish for the purposes of sale.
[7] The offending occurred on dates between May 2010 and March 2011. The charges against the appellant involved a total of between 395–526 kg of shucked paua meat.
The sentencing
[8] The Judge fixed a starting point on a totality basis in relation to all the offences. He noted the substantial harm the black market in seafood causes to the country’s economic interests and the risk of seafood being sold for human consumption otherwise than in accordance with the prescribed standards. In assessing the aggravating features of the offending the Judge described it as calculated, cynical and motivated by greed. He noted the manipulation and utilisation of the customary authorisation process as a significant feature of the offending. He described the duration, scale, premeditation and manipulation of the customary fisheries process as aggravating. He described the appellant as the primary offender. The Judge found no mitigating features of the offending.
[9] After considering a number of comparable fisheries decisions, the Judge adopted a three and a half year starting point for the offending.[6] The Judge then imposed an uplift of six months to reflect the appellant’s previous convictions, which included convictions for fisheries offences.
[10] The Judge found no mitigating personal factors. He considered whether there should be any discount for the late guilty plea. He held a discount would have been available had sentencing taken place following the guilty plea on day three of the trial, but, having regard to subsequent events, found there should be no discount for the plea.
[11] The Judge considered whether any allowance should be made because of the compulsory forfeiture of the boat and equipment seized from the appellant and held that it should not.
[12] The Judge then considered whether a minimum period of imprisonment should be imposed. He said that he was required to look at the offending itself and where it sits on the continuum of fisheries offending. The Judge’s assessment was that it was fisheries offending of the worst kind, not in terms of scale but in terms of the manipulation of the fisheries and authorisation process. In his view, release after one third would represent insufficient denunciation, punishment and deterrence in all the circumstances, so he imposed a minimum non-parole period of 50 per cent.
[13] The co-offenders were sentenced, following their pleas of guilty, on 1 May 2012, also by Judge Crosbie. H faced seven charges of obtaining a benefit by selling paua contrary to the Act and one charge of abetting the making of a false statement.[7] T faced six charges of aiding the taking of paua in contravention of the Act, three charges of joint possession of paua with the intention of obtaining a benefit in contravention of the Act, and one of abetting a sale in contravention of the Act.[8] The Judge described their respective roles in the offending, and in doing so referred to the appellant as the primary offender. The Judge adopted a starting point of 18 months for both cooffenders. Those starting points were subsequently upheld on appeal by the High Court.[9]
Counsel’s submissions
[14] Mr Winders for the appellant submits that the Judge erred in his assessment of the starting point and that the resulting disparity with the sentences imposed on the co-offenders is such as to not be consonant with the appearance of justice.[10] Counsel accepts that the appellant’s starting point should be higher than that imposed on the co-offenders to reflect his additional culpability arising from having organised and obtained the fraudulent customary authorisations. He submits however that there has been doublecounting by the Judge, in that he adopted a starting point 12 months higher than the co-offenders’ starting point of 18 months (which did not include the customary authorisation offences), and then applied an additional uplift of 12 months to reflect those offences. Mr Winders submits that either of those uplifts may be appropriate to reflect the totality of the appellant’s offending, but to impose both involves a double penalty for the same aggravating feature. He submits that a starting point of two years to two years and three months prior to assessing personal aggravating and mitigating factors, instead of the three and a half years adopted by the Judge, was appropriate. He also submits that the Judge should have made a small discount (of 10 per cent or less) for the guilty plea, and that some discount should have been made in sentencing for the forfeiture, on which there is a legislative tension between s 10B of the Sentencing Act 2002 and s 256(14) of the Act.
[15] Mr Winders further submits that the minimum period of imprisonment of two years (50 per cent) should not have been imposed.
[16] Mr Barr for the respondent submits that the starting point was within the available range, and refers to the decision in Ho v Ministry of Fisheries.[11] He submits that the quantity of paua involved, the duration of the offending and the lead role the appellant played would have justified a starting point in the order of three years imprisonment, without the additional element of the customary authorisation offences. The uplift by the Judge to reflect that offending was appropriate and did not involve double-counting the appellant’s additional culpability arising from him having organised and obtained fraudulent customary authorisations. The difference between the starting point adopted for the co-offenders and that for the appellant was justified to reflect their different roles and levels of offending. It was open to the sentencing Judge to decline to allow a discount for the guilty pleas having regard to the circumstances in which those pleas arose, and the subsequent events. Mr Barr notes a difference of view in the authorities on whether forfeiture can be taken into account, but submits that, if allowance for the forfeiture is possible, the value of the forfeited assets was not such as to justify any adjustment having regard to the seriousness of this offending.
[17] Mr Barr notes that there are no other instances of which counsel is aware in which a minimum period of imprisonment has been imposed for offending under the Act, but submits that the imposition of minimum periods of imprisonment for commercial fraud offending is not uncommon. He submits that the present offending falls within the category of serious offending for which a minimum period of imprisonment is required to hold the appellant accountable for the harm done, and to denounce and deter the conduct.
Discussion
[18] We deal first with the starting point. We do so by assessing first the starting point for the s 233 offences. That offending is directly related to taking and dealing with the paua, for commercial gain. It is directly comparable to the offending in the authorities to which we were referred and provides the best basis for comparison.
[19] We then consider the appropriate uplift to reflect the additional criminality and culpability involved in the s 231 offending. That additional offending distinguishes this case from the comparable authorities, and also from the cooffenders.
[20] The most relevant previous guidance from this Court is R v Zhang.[12] The appellant and others had conspired to export frozen paua in the luggage of tourists travelling to Hong Kong. On three occasions an undercover fisheries officer had sold paua to the appellant and a substantial quantity was found in a freezer at the appellant’s house. The sentencing Judge put the figure of paua illegally taken from New Zealand at 1,425 kg. She adopted a starting point of three years and nine months imprisonment.
[21] This Court reduced the end sentence from three years to two years. It said:
[41] In the end, we have come to the view that we should intervene in this instance, principally because the sentence is distinctly out of line with offences at the time of the offending, and sentences imposed therefore. In that connection it has to be recalled that this proceeding has been on foot now for close to three years. In the intervening period there has been much greater official and public awareness of these depredations; the law has been clarified and amended; and there can now be no doubt that offenders will face much stiffer sentences.
[42] We agree with Salmon J that, in general terms, for anything other than minimal commercial operations - and Mrs Pinnock did not take issue with this - offenders today face imprisonment. In the case of large scale commercial operations, sentences of three or four years, in really serious cases, would not be inappropriate given the public interest in the protection of this fish stock.
[43] In the result, we think that fairness requires a degree of parity in this particular instance to like sentences at the time of the offences; but prospectively, serious offenders (and this was serious offending) will not warrant the same consideration.
[22] The Court’s reference to Salmon J is to the decision of the High Court in Dewes v Ministry of Agriculture and Fisheries.[13] Salmon J said:
[18] In my view a small commercial operation would justify consideration of a non-custodial sentence. An operation of medium commercial size would justify a penalty in the range of one to two years and there could be some modification depending upon whether a fine was imposed as well. Penalties of three years or more would be reserved for large commercial operations.
[23] In Dewes there had been two sales involving 81.5 kg of paua meat to an undercover officer. The sentencing Judge had imposed a sentence of 12 months imprisonment, which was reduced to nine months on appeal.
[24] The actual starting point adopted on appeal in R v Zhang needs to be seen in context. It was related to other sentences at the time. This Court expressly noted that future offenders would face much stiffer sentences.
[25] In Paenga v Ministry of Fisheries the offender was involved in unlawfully gathering and selling about 257 kg of paua.[14] The charges followed an extensive undercover operation by the Ministry of Fisheries which netted about 60 offenders. An undercover fisheries officer had taken the offender and other divers to and from diving sites and paid the divers for the paua.
[26] The sentencing Judge fixed a starting point of two and a half years. That starting point was reduced by the High Court on appeal by nine months (to 21 months) because of the disparity with the sentence imposed on another offender in the same operation. Clifford J noted that “a mid-range starting point in the vicinity of two years can be seen as being appropriate for the level of criminality involved”.[15]
[27] In Ho v Ministry of Fisheries, the offenders were involved in an enterprise involving the commercial sale of paua.[16] The offender Ho had on five separate occasions received paua totalling over 1,159 kg. The sentencing Judge adopted a starting point of four years. The offender Core had been involved in some of those transactions, involving approximately 761 kg of paua. The sentencing Judge adopted a starting point of three years. On appeal to the High Court, Peters J reviewed the relevant authorities and noted that he had “no doubt that the nature of this type of offending and the need for deterrence warrants the starting points that the Judge adopted”.[17] However, because there was a need for consistency with the starting points adopted for other offenders netted in the same operation, she reduced each starting point by three months.
[28] In Chen v Ministry of Fisheries there were four purchases of paua totalling 180 kg over three days by a fish shop.[18] The District Court imposed a starting point of two years imprisonment which was reduced on appeal to 21 months.
[29] The quantity of paua involved is an important element in assessing the scale of the offending, but it is not the only aspect. This was a persistent course of offending over a period of about ten months. It was a commercial operation, though we would not describe it as a large-scale commercial operation. The marketing methods adopted were unsophisticated. We assess the offending as being more serious than that in Paenga v Ministry of Fisheries.[19] It is different in kind from that in Ho v Ministry of Fisheries, and we assess it as slightly less serious.[20] It is considerably more serious than Chen v Ministry of Fisheries.[21]
[30] In fixing his starting point of three and a half years for all the offending, Judge Crosbie identified a two and a half year starting point as appropriate for the s 233 offences (taking and selling the paua).[22] In light of the authorities, that component of the starting point was within the available range.
[31] The next issue is the extent of the uplift to reflect the s 231 offending. The offence is committed if a person knowingly, for the purpose of obtaining any benefit under the Act, makes a false or misleading statement or omits any information in any communication, application, record or return prescribed by the Act or required for its administration. The appellant made false statements to the Tangata Tiaki to obtain authorisations to take paua for customary food gathering purposes. An element of dishonesty or fraudulent intent is inherent in the nature of the offence. The appellant’s dishonesty or fraud consisted in applying for customary authorisations to which he knew he was not entitled.
[32] The element of dishonesty and fraud adds to the criminality involved in the offending and must be reflected by an uplift. We see two factors as particularly relevant in assessing the extent of that uplift.
[33] The first is the degree to which this offending has contributed to the principal offending under s 233 of the Act. The authorisations which the appellant obtained did not facilitate the taking of the paua, in the sense of enabling the appellant to dive for and take paua that he could not have taken without the authorisations. He knew he was not entitled to take the paua under the improperly obtained authorisations. Some of the paua was apparently taken without any authorisations, and the terms of the authorisations were clearly exceeded by the appellant taking more than the amounts authorised on multiple occasions. We think the proper inference to draw is that the appellant would have illegally taken the paua which he did, whether or not he had the customary authorisations. The appellant might have tried to rely on the customary authorisations if he had been apprehended, but there is no evidence that he did use those documents in that way. Any use of that sort would have involved a fraudulent use of the authorisations, and there is no such charge. So far as its effect on the fishery is concerned, the customary authorisation offending might be viewed as adding little to the criminality involved.
[34] The second factor is the effect of the offending on the overall scheme of fisheries control imposed by the Act. The special relationship between tangata whenua and places of importance for customary food gathering are expressly recognised in the Act. Section 186 enables regulations to be made regulating customary fishing. The Fisheries (Kaimoana Customary Fishing) Regulations 1998, created pursuant to s 186, give effect to this special relationship. The regulations give a considerable measure of autonomy to those responsible for the issuing of customary authorisations. That level of autonomy carries with it a responsibility to exercise the power to authorise customary taking in a way which meets the legitimate needs and expectations of persons entitled to invoke customary rights, while maintaining the integrity of the fisheries regime, and recognising the legitimate rights and expectations of other participants in other aspects of that regime. Any abuse of the customary authorisation process is accordingly to be viewed as a potential threat to the proper administration of the fisheries regime. For this reason, the appellant’s fraud in obtaining special privileges to which he was not entitled, perpetrated against the Tangata Tiaki by whom the authorisations were issued, adds significantly to the culpability of the commercial taking of paua offending.
[35] The Judge assessed the additional culpability as requiring an uplift of one year to the starting point. There is little assistance available from the authorities because of the unusual nature of this aspect of the offending. The additional criminality involved in obtaining the customary authorisations, and in the abuse of the customary authorisation process requires, on our assessment, an uplift of six months. We consider that the uplift of one year applied by the Judge was too high when the additional criminality involved in that offending is considered, having regard to the totality principle.
[36] The next issue is that of parity with the sentences imposed on T and H. There are two principal factors which justified a difference in the starting points. First, the appellant’s role as the principal offender must be reflected in the sentence imposed. Second, the additional criminality involved in the s 231 offending must also be taken into account. As to the respective roles, the Judge was best placed to assess that. He also sentenced the co-offenders. The assessment of their relative culpability which he made was open to the Judge on the material before us, and was sufficient to justify a one year difference in the starting point for the s 233 offending. We therefore do not accept the appellant’s submission that there has been doublecounting, as described at [14].
[37] We therefore consider that the appropriate total starting point for the totality of the offending is three years.
[38] We consider next the uplift of six months for previous offending. The appellant has a long list of convictions for unrelated offending, which are of limited relevance. He also has convictions in 1995, 2000 and 2009 for offences under the Fisheries Act, which were met by fines and community work. An uplift to reflect the need for personal deterrence was justified. The extent of the uplift must be fixed having regard to both the penalty imposed for the present offending, and the seriousness of the previous offending, as reflected by the penalties imposed. The uplift must not be so high as to be an additional penalty for the earlier offending. When these factors are taken into account, we consider that an uplift of six months, or nearly 17 per cent of the starting point of three years we have adopted, was greater than required for personal deterrence. Three months would have sufficed for that purpose.
[39] There are two issues relevant to personal mitigating factors:
- (a) whether a discount should have been given for the late guilty plea; and
- (b) whether some allowance should have been made to reflect the forfeiture of the appellant’s property which arose from his conviction.
[40] We have described the Judge’s approach to the guilty plea, at [10]. As the Judge said, the appellant’s challenge to the extent of his responsibility did not end with the plea. He subsequently sought to withdraw the plea, and disputed the summary of facts. The plea was very late, and any discount under Hessell v R would have[23]een small.23 The events following entry of the plea justified a reduction to that small discount. We do not consider that they should have eliminated it. It appears that the appellant has had some measure of success in his dispute over the summary of facts, because the quantity of paua involved was amended down. We consider an allowance of one month is appropriate.
[41] As to the forfeiture under s 255D(2)(c) of the Act, any property used by the appellant in the commission of his offences was forfeited to the Crown unless, for special reasons relating to the offence, the Court ordered otherwise. Here, a Toyota Surf motor vehicle, a Nissan Terrano motor vehicle, an aluminium boat with a 30 horsepower outboard motor, three cellphones, and the appellant’s dive gear were forfeited.
[42] Counsel for the appellant submits that the forfeited items comprised, on counsel’s instructions, the majority of the appellant’s assets. There is no evidence of value, but counsel for the respondent says the value of the forfeited items is understood to be in the order of $5,000. Counsel for the appellant acknowledges that the value of those items is on a different scale to that encountered in other cases such as the drug offending in Brazendale v R.[24] However he submits that the vehicles were the appellant’s most significant assets used principally for work and only incidentally in the offending. He submits that a small discount to the sentence would have been appropriate. Counsel for the Crown submits that, to the extent that the sentencing Judge ought to have taken the forfeiture into account, it would have had little effect on the outcome.
[43] Section 256(14) of the Act provides that any forfeiture under s 255D is in addition to, and not in substitution for, any other penalty that may be imposed by the Court. Counsel for the appellant submits that there is a tension between that provision and s 10B of the Sentencing Act which provides that in sentencing an offender convicted of a qualifying instrument forfeiture offence (which the appellant’s offences are) the Court must take into account any forfeiture of property used in the commission of the offence arising from the offender’s conviction.
[44] There is some difference of view in the authorities as to the way in which the principle of sentencing expressed in s 10B of the Sentencing Act is to be reconciled with s 256(14) of the Act. The authorities are noted in Ministry of Fisheries v McManaway.[25] One view of the effect of s 256(14) is that a sentencing Judge must exclude from consideration the effect on the offender of the forfeiture provisions in the Act.[26] A second view is that forfeiture is relevant to the “means and responsibilities of the offender” when fixing a fine.[27] The third view is that s 256(14) does not preclude the Court from having regard to the impact of forfeiture when fixing a penalty.[28] That was the view preferred by Young J in Ministry of Fisheries v McManaway, on his reading of the judgment of a full Court of the High Court in Ministry of Agriculture and Fisheries v Equal Enterprises Limited.[29]
[45] In our view, the appropriate reconciliation of the two potentially conflicting provisions is that the Court must take into account the forfeiture as required by s 10B(1)(b) of the Sentencing Act. In deciding the weight to be given to that matter, the Court must take into account not only the matters referred to in s 10B(2) of the Sentencing Act but also the direction in s 256(14) of the Act that the forfeiture is intended to operate in addition to any penalty which the Court may impose. Approaching the matter in that way is likely to mean that the value of the property forfeited will carry little weight in the sentencing exercise, unless there are particular consequences of the forfeiture for the offender which would make the sentence otherwise unjust in the particular circumstances of that offender.
[46] On that approach, we consider that the Judge did not err in declining to make allowance for the forfeiture. The value of the property was not large in relation to the scale of the offending. There was no material before the sentencing Judge (or before us) to establish any particular hardship arising from the forfeiture.
[47] The end sentence which we consider appropriate is three years two months. That is made up of a total starting point of three years, an uplift of three months for the previous offending and a discount of one month for the guilty plea. That is ten months less than the four years imposed by the Judge. The sentence imposed was therefore manifestly excessive.
[48] The next question is whether a minimum period of imprisonment should have been imposed. No minimum term was imposed in any of the cases to which we were referred. The importance of the principles of deterrence and denunciation for offending under the Act, referred to by this Court in Tonga v R,[30] does not ordinarily mean that a minimum period is required. As counsel for the Crown submits, minimum periods of imprisonment have been imposed in cases of fraud offending. For the reasons we have given, the fraud involved was not a significant element in facilitating the offending. The fraud against the fisheries regime which we have described was different in kind from most fraud offending, in that it did not involve an actual or potential loss suffered by an identifiable victim. We therefore do not regard the authorities to which counsel for the Crown referred as directly comparable to the present case.[31] The fraud against the regime was, as we have described, serious, and required a response which reflected the purposes of denunciation and deterrence of others. Those purposes were in our view adequately met by the uplift of one year. The uplift for previous convictions was a sufficient response to the need for personal deterrence. Those considerations did not justify the additional penalty inherent in the imposition of a minimum term of imprisonment.
[49] For these reasons, the appeal is allowed. The sentence of four years imprisonment is quashed and a sentence of three years two months imprisonment is substituted. The minimum period of imprisonment is quashed.
Solicitors:
Crown Law
Office, Wellington for Respondent
[1] R v Tapsell DC Dunedin CRI-2011-012-4652, 13 September 2013.
[2] Ministry of Fisheries v Houston DC Dunedin CRI-2012-012-135, 1 May 2012.
[3] Section 231(1).
[4] Section 233(1).
[5] Section 233(2).
[6] Dewes v Ministry of Agriculture and Fisheries HC Gisborne AP20/02, 7 October 2002; Ministry of Fisheries v Smith DC Lower Hutt CRI-2008-032-2255, 4 September 2008; Ministry of Fisheries v Vu DC Manukau CRI-2008-092-8118, 26 August 2009.
[7] Fisheries Act 1996, ss 233(1) and 231; Crimes Act 1961, s 66(1)(c).
[8] Fisheries Act, ss 233(2) and 233(1); Crimes Act, s 66(1)(c).
[9] Tenbeth v Ministry of Fisheries [2012] NZHC 1832 at [14].
[10] R v Lawson [1982] 2 NZLR 219 (CA) at 223.
[11] Ho v Ministry of Fisheries [2012] NZHC 516.
[12] R v Zhang CA153/04, 13 July 2004.
[13] Dewes v Ministry of Agriculture and Fisheries, above n 6.
[14] Paenga v Ministry of Fisheries HC Wellington CRI-2009-485-150, 4 March 2010.
[15] At [24].
[16] Ho v Ministry of Fisheries, above n 11.
[17] At [54].
[18] Chen v Ministry of Fisheries HC Auckland CRI-2010-404-190, 26 August 2011.
[19] Paenga v Ministry of Fisheries, above n 14.
[20] Ho v Ministry of Fisheries, above n 11.
[21] Chen v Ministry of Fisheries, above n 18.
[22] R v Tapsell, above n 1, at [49].
[23] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [15].
[24] Brazendale v R
[2011] NZCA 494, (2011) 25 CRNZ 580; and see Brazendale v R [2011] NZSC
149.
[25] Ministry of
Fisheries v McManaway HC Invercargill AP25/99, 11 February 2000.
[26] At [36].
[27] At [38]. The financial capacity of the offender is a mandatory consideration under s 40(1) of the Sentencing Act 2002.
[28] At
[39].
[29] Ministry of
Agriculture and Fisheries v Equal Enterprises Ltd [1994] 2 NZLR 473
(HC).
[30] Tonga v R [2011] NZCA 396 at [32].
[31] R v Li [2007] NZCA 402, [2008] 1 NZLR 554; R v Clayton [2008] NZCA 348; D’Villiers v R [2010] NZCA 85; Taylor v R [2012] NZCA 329.
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