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R v Te Kaha [2005] NZCA 179 (5 July 2005)

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R v Te Kaha [2005] NZCA 179 (5 July 2005)

Last Updated: 7 August 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA49/05
CA50/05

THE QUEEN

v

TE KAHA
TRENT JOHN KARAITIANA

Hearing: 30 June 2005

Court: Anderson P, Williams and Doogue JJ

Counsel: M F Laracy for Crown
C B Hirschfeld for Respondent Te Kaha
J E Boyack for Respondent Karaitiana

Judgment: 5 July 2005

JUDGMENT (REISSUED) OF THE COURT

A The applications for leave to appeal against sentence and the resultant appeals are upheld.

B The community work sentences imposed on the respondents are quashed.

C Te Kaha is sentenced to six months imprisonment.

D Trent John Karaitiana is sentenced to nine months imprisonment.

E Leave is granted to both respondents to apply for home detention.

F Each prison sentence is deferred for a period of two months or the period ending with the date on which the Parole Board determines in respect thereof an application for home detention, whichever is the sooner.

____________________________________________________________________

REASONS

(Given by Doogue J)

Introduction

[1] The Solicitor-General applies for leave to appeal against sentences imposed by Judge Blackie in the District Court at Manukau of 320 hours community work in respect of Mr Te Kaha and 350 hours community work in respect of Mr Trent John Karaitiana.
[2] The sentences were imposed in respect of the crime of conspiracy. Both the respondents along with two others, Mrs Raelyn Jean Sullivan and Mr Kevin Wayne Abbott, were charged in March 2003 that between 12 December 2002 and 25 March 2003 they did conspire by deceit, falsehood or other fraudulent means, namely, by taking possession of and dealing in ordinary paua otherwise than in accordance with the provisions of the Fisheries Act 1996 to defraud the public by unlawfully depriving the public of the economic benefit to be gained from that paua and depleting the paua resource of New Zealand.
[3] Both the respondents ultimately pleaded guilty to that charge.
[4] The Crown seeks leave to appeal upon the basis that the sentences imposed on the respondents are manifestly inadequate and wrong in principle. The respondents oppose the application for leave to appeal.

Background

[5] In support of the case against the four individuals named above, the Crown relied on four defined transactions or sequence of events.
[6] The first transaction involved Mrs Sullivan and Mr Karaitiana. In December 2002 Mr Karaitiana harvested 5.1 kilograms of paua. It was sold to a special duties fisheries officer through his mother, Mrs Sullivan, for $225.
[7] The second transaction was of a similar nature. In January 2003 20.5 kilograms of paua was harvested by Mr Karaitiana. It was sold to a special duties fisheries officer through his mother for $3000. There was a third party involved in a very limited way in respect of this transaction. Mr Sullivan, the husband of Mrs Sullivan, was charged as a party to the sale and pleaded guilty under s 232 Fisheries Act 1996. He was convicted and discharged on account of medical evidence attesting to health problems and his position is irrelevant in respect of the present application.
[8] The third transaction saw the involvement of Mr Te Kaha with Mr Karaitiana and Mrs Sullivan. Believing he had a market for up to one tonne of black market paua, Mr Karaitiana contacted his uncle, Mr Te Kaha, requesting he become involved and arrange a source for the large quantities of paua that he expected to be able to handle. Mr Te Kaha in turn contacted Mr Abbott of Blenheim, a fisherman known to Mr Te Kaha, who agreed to assist. As a result, Mr Karaitiana, through Mrs Sullivan, offered the special duties fisheries officer one tonne of paua to be supplied in two lots of half a tonne with the price being $62,500 per half tonne. In March 2003 Mr Abbott supplied 50 kilograms of paua to Mr Te Kaha, who personally collected it from him. The respondents then transported it to Wellington where the two men handed it to Mrs Sullivan, who in turn sold it to the special duties fisheries officer for $9000 cash.
[9] The fourth and last transaction was an unsuccessful attempt to arrange to provide the special duties fisheries officer with 400 kilograms of the initial half tonne promised in late March 2003. It was really a continuation of the third transaction. Mr Te Kaha disputed his involvement in this endeavour. There was a disputed fact hearing held by the sentencing Judge to determine his involvement. It is clear from his sentencing remarks that the Judge rejected Mr Te Kaha’s claim that he had resiled from the enterprise at this time. Once again Mr Te Kaha saw Mr Abbott. On this occasion Messrs Te Kaha and Karaitiana returned empty handed to the North Island. Word was passed to the special duties fisheries officer via Mrs Sullivan that their provider currently had 100 kilograms of paua and that they would have the additional 300 kilograms for sale the next day. However, the fisheries officials decided to arrest the conspirators at that time. Mr Abbott was found to have 88 kilograms of paua in his possession.
[10] What then happened is that the respondents along with Mrs Sullivan and Mr Abbott were charged with the conspiracy offence to which the present appeal relates. However, before the depositions hearing in respect of that charge, alternative summary charges were laid under s 232 Fisheries Act 1996 against the four for selling paua taken in contravention of that Act.
[11] Mrs Sullivan pleaded guilty to three charges under the Fisheries Act 1996 that did not attract prison sentences and was sentenced to 320 hours community work. She appealed against that sentence but it was upheld in the High Court at Auckland on 19 August 2004, CRI-2004-404-00267. After those pleas of guilty the Crown did not pursue the conspiracy charge against her. The Crown regarded her as a pawn of her son, in particular, and Mr Te Kaha. There were other factors that caused the Crown to treat her case as less culpable. She had no previous convictions, a record of community involvement and personal circumstances relating to the health of herself and her husband that justified leniency.
[12] Mr Abbott pleaded guilty in June 2003, before the prosecution evidence had been briefed and well in advance of depositions, to a charge under the Fisheries Act. He was sentenced in the District Court at Blenheim on 15 August 2003 to nine months imprisonment, with leave to apply for home detention, which was granted. Judge McKegg said he took a starting point of somewhere between one and two years imprisonment. He referred to the particular aggravating features relating to Mr Abbott’s offending, including earlier Fisheries Act offences, and the strong mitigating circumstance including a very early guilty plea. For the starting point for the sentence he relied upon the decision in the High Court of Dewes v Ministry of Agriculture and Fisheries, AP20/02, High Court, Gisborne, 7 October 2002, Salmon J. We will return to that decision a little later.
[13] Mr Abbott served his sentence. However, his conviction was quashed on appeal as a result of this Court’s decision in R v Armstrong CA194/03 15 September 2003: see Abbott v Ministry of Fisheries, CRI-10-03, High Court, Blenheim, 17 February 2004, E France J. In Armstrong it was held that the section under which Mr Abbott had been convicted and sentenced involved a drafting error, which meant that convictions under the section could not be sustained in circumstances such as Mr Abbott’s. Because of Mr Abbott’s plea of guilty to the Fisheries Act charge the Crown did not pursue the conspiracy charge against him.

Sentencing

[14] Judge Blackie had before him the summary of facts in a rather more extended form than set out above, together with the evidence of Mr Te Kaha relating to his involvement in what was described as the fourth transaction already referred to above. That information provided the basis for determining the culpability of the respondents.
[15] The Judge also had before him pre-sentence reports relating to both respondents together with a number of testimonials relating to Mr Te Kaha. This information, together with counsels’ submissions, enabled him to determine the aggravating and mitigating circumstances relating to both respondents.
[16] At the time of sentencing Mr Te Kaha was 45 years of age. He had been regularly before the Courts in the 1970s and 1980s for a range of offending. Much of it arose from or related to his drugs and alcohol problems. In the earlier part of the period he was no stranger to custodial sentences. In 1990, to his credit, he overcame his addictions. Since then, apart from one minor driving offence, his only offending has arisen out of a particular political protest. He accepted that his motivation was greed but in speaking to the probation officer sought to minimise his involvement in the offending and to place responsibility on his co-offenders, particularly Mrs Sullivan and Mr Karaitiana. He married in 2003 and has a young son. He provides for his family through his pounamu and whalebone carvings. He regarded his offending as aberrant and said that he was unlikely to re-offend. The pre-sentence report did not comment on that assessment.
[17] Mr Karaitiana was almost 31 years of age at the time of sentencing. He also has a background of lawlessness, in his case spanning the 12 or 13 years prior to the offending with which we are concerned. None of it has attracted a custodial sentence. Like Mr Te Kaha, he sought to minimise his involvement and blame his associates for the present offending. Indeed, to the probation officer he denied responsibility in respect of it. Nevertheless he conceded that he became greedy and viewed his involvement as an opportunity to make money. He has two daughters, one of whom is cared for by him. He has been in part-time and casual work for a removal firm that speaks well of him. However, the pre-sentence report assessed him as being at a moderate risk of re-offending and said his motivation to change was ambivalent.
[18] In sentencing the respondents the Judge referred to the background and matters already traversed. The Judge noted that in respect of culpability Mr Karaitiana would have had an amount of 113.5 kilograms pass through his hands and Mr Te Kaha 90 kilograms. He noted the potential for a further 88 kilograms to come into their possession had they been able to uplift that amount from Mr Abbott. He did not refer to the respondents’ expectations of handling larger quantities for substantial sums of money.
[19] The Judge referred briefly to the Sentencing Act and the Fisheries Act. He went on to refer to the aggravating factors urged upon him by the Crown of premeditation and planning in respect of the conspiracies. He also traversed the mitigating factors urged upon him by counsel for the respondents, such as the pleas of guilty, the remorse expressed through the probation reports and through counsel, combined with the respondents’ personal circumstances and the submissions that they were unlikely to re-offend in this way. He noted the need under the Fisheries Act that steps be taken where possible by the Courts to maintain the country’s fisheries resource.
[20] The Judge went on to cite the cases referred to him, to which we will return. In particular, he accepted that in general terms, where there is anything but a minor commercial operation, a sentence of imprisonment would be appropriate and in large scale operations sentences of between three and four years imprisonment would be justified. He recognised that the respondents’ involvement was on a commercial scale. The respondents were offending for the money and a total of between $12,000 and $13,000 changed hands. He noted the sentence imposed on Mr Abbott of nine months imprisonment after his very early plea of guilty. However, he was seriously misled as he was unaware Mr Abbott served his sentence and thought he had only served a small portion of it. He recognised that the maximum penalty for the offence was five years imprisonment.
[21] In respect of Mr Karaitiana the Judge recorded that the picture given by the probation officer of an intention to minimise involvement was not the real picture. He accepted that Mr Karaitiana did not endeavour to minimise his offending. Nevertheless, he said submissions were made which did endeavour to do that, in particular that much of what was said to the special duties fisheries officer was just talk or puffery. That was in contrast to a statement that Mr Karaitiana thought the money that he would earn through the offending would give him a life again. The Judge noted that Mr Karaitiana had never been sentenced to a period of imprisonment but that he had pleaded guilty to two breaches of community work sentences.
[22] In respect of Mr Te Kaha the Judge recognised that since 1990 Mr Te Kaha had freed himself from his dependence on drugs and alcohol. The Judge took the view that Mr Te Kaha was the prime mover in respect of the third transaction.
[23] The Judge went on to say:

[31] At the end of the day I have to balance the needs of the community, to protect fishery stock, and that is a significant need in this case, against the nature of your particular offending, your personal circumstances and any other special points relevant to this case. The needs of the community point to a custodial sentence as sought by the Crown. Your personal circumstances, as highlighted by both the Probation Reports and by your counsel, would tend towards a community-based sentence. In Fisheries cases the need for deterrence is significant. Indeed once it becomes of a commercial nature the need for deterrence becomes almost paramount. In other words, it would outweigh the individual interests of the offenders.
[32] The Crown expressed, and this was accepted by your counsel, invariably in such a case with such quantities as involved here, if you stood alone then a sentence of imprisonment would be inevitable. Indeed if I was to consider parity with other cases, that is other decided cases, where tariffs have been discussed a custodial sentence in your situation would be fully justified. However, in this case there is a significant additional factor, which I consider in the interests of justice must be taken into account, and that is the outcomes as far as your co-offenders are concerned. Looked at in the greater scheme of things you were all part of the same enterprise. None of you could operate independently of the others.

[24] The Judge then referred briefly to the sentencing of Mrs Sullivan and Mr Abbott that we have traversed above and said:

[34] It may well be, I do not know, it would probably be to speculate to say so, that had the charges against you as they were initially laid and now put before me by Mr Hirschfeld, proceeded to the point that you were found guilty, they too may have been sent aside by the Court of Appeal. But the reality of the situation is that two of your offenders remain in the community for their part in this overall enterprise. So, in my view it would be an injustice if I were to now sentence you, that is the two of you remaining, to a period of imprisonment while the others have not had to suffer the same degree of penalty, except perhaps Mr Abbott for a short period whilst matters were under appeal. Your involvement is no greater than theirs. As I say, I regard your involvement as being almost of a similar level but there were peaks and troughs as it were as the conspiracy progressed. You were all principal players.

[25] The Judge then determined that he should make an exception from the normal requirement upon the Court to impose a sentence of imprisonment for the type of offending before him and imposed the sentences that the Crown seeks leave to appeal against.

Relevant prior authority

[26] In R v Walters [1993] 1 NZLR 533 this Court dealt with an appeal where the appellant had been sentenced to 18 months imprisonment in respect of a similar conspiracy to the present one, although the scale of the offending was much greater. The Court was primarily concerned with whether a charge under s 257 Crimes Act properly lay and held that it did. A sentence appeal succeeded, not because the Court considered that the Judge was wrong in his approach but because it was the first occasion upon which such offending had been met by imprisonment. Nevertheless, the Court held:

... if any conspiracy of a like kind, aimed at defrauding the country of a controlled resource, comes before the Courts again, imprisonment of at least the order imposed in this case in the High Court must be expected.

[27] That message was reinforced by this Court in R v Nicholas and Brown CA339/95 and CA345/95 28 September 1995 where the Court held:

... it should not need emphasising that those who plunder the precious coastal resources for gain can expect deterrent sentences reflecting the harm they cause to the environment and the difficulty of detection of such offending.

[28] In Dewes, Salmon J was dealing with an appeal against a sentence of 12 months imprisonment for paua offending where there were two sales of paua with a combined weight of 81.5 kilograms. That offending was being dealt with under the Fisheries Act. The Judge had before him not only the decisions of Walters and Nicholas and Brown but also some four other instances of District Court sentencings in respect of paua. He therefore felt it helpful for sentencing Judges in the District Court to express the view that offences involving very large quantities of paua or other fish could expect to attract the maximum penalty of five years imprisonment and a $250,000 fine under the Fisheries Act. Large commercial operations would attract penalties of three years or more. Medium sized commercial operations would justify a penalty in the range of one or two years although there could be some modification depending upon whether a fine was imposed as well. It would only be small commercial operations that would justify consideration of a non-custodial sentence.
[29] Salmon J’s approach received approval from this Court in R v Zhang CA153/04 13 July 2004.
[30] The decisions in Dewes and Zhang were both before the Judge at the time of sentencing.

Submissions

[31] The Crown submitted that the Judge misapplied the parity principle by striving for equality of outcome without having regard to the appropriate sentence for the respondents and to the particular factors that justified the outcomes for their co-offenders. Thus the Crown submitted that the Judge erred and as a result imposed unjustifiable and manifestly inadequate sentences on the respondents.
[32] The Crown accepted that the parity principle required that where there is no justification of different treatment of co-offenders, approximate parity between the sentences should be imposed. However, it was submitted that this principle does not obligate a Judge to impose the same or a similar sentence on co-offenders. It was submitted that the scope for different treatment is substantial and that that was illustrated by the decision in Nicholas and Brown where imprisonment for one offender and a suspended sentence and periodic detention for another offender was upheld. The Crown also referred to R v Autagavaia [1985] 1 NZLR 398. The Crown submitted that the parity principle only applied where the difference between the sentences imposed on co-offenders is unjustifiable.
[33] It was submitted for the Crown that the Judge was wrong to use the sentence imposed on Mrs Sullivan as a reference point for the sentencing of the respondents. The Crown position in respect of Mrs Sullivan was that she had been co-operative from when first arrested and had made a frank statement admitting her involvement in the offending and was plainly remorseful. The Crown formed the view already recorded that she was used initially by Mr Karaitiana and then by both respondents to act as a conduit in the deals. She was not the instigator of the conspiracy or one providing the impetus for further deals or the one who stood to gain any real profit from the transactions. The offending which she pleaded guilty to did not carry a term of imprisonment. That was a decision made by the Crown, tailored to her situation and plainly available to it.
[34] It was Mr Abbott and the respondents who were seen by the Crown as being the most culpable offenders. They were the ones who stood to benefit most. Mr Abbott pleaded guilty early, so early that the prosecution file had not been briefed, and well in advance of depositions. Thus the sentence of nine months imprisonment upon him was explicable and would have been an appropriate point of reference for the sentencing Judge in respect of the respondents. It was submitted for the Crown that it is contrary to the interests of justice and not supportable according to any legal principle that his good luck in having the conviction ultimately quashed should influence the approach at sentencing for the respondents.
[35] It was submitted for the Crown that the Judge was wrong in regarding all four as equal principals in the offending and that Mrs Sullivan’s position in particular was clearly distinguishable for reasons which we do not need to further enlarge upon.
[36] It was submitted for the Crown that an appropriate starting point for the respondents’ offending would be in the vicinity of 15-18 months imprisonment and that in light of their late guilty pleas after the case had been briefed for trial it should not have attracted any great credit. Mr Te Kaha pleaded guilty on the Monday a two-week trial was set to commence. Mr Karaitiana’s plea was on the Thursday before.
[37] It was noted for the Crown that at this time Mr Te Kaha has completed about 90 hours of his community work sentence and Mr Karaitiana about 20 hours of his. It is accepted they must have credit for that.
[38] The respondents submitted that the Judge was fully entitled to adopt the course that he did. It was submitted that the Judge correctly took the view that in the ordinary course a custodial sentence would be fully justified but that the issue of parity did not permit that outcome. It was submitted that this was appropriate when the Judge had determined that the involvement of the respondents was no greater than their co-offenders. It was submitted that that was a finding open to the Judge. Thus it was appropriate that the Judge took Mrs Sullivan’s sentence for the reason that Mr Abbott carries no conviction for what was similar wrongdoing by a quirk of fate. It was noted that had the respondents elected to plead guilty like Mr Abbott they would have been in the same position as him, free of any conviction. It was submitted that in the unique circumstances in this case the quirk of fate in respect of Mr Abbott should not cause inequality among those who were equally responsible. Thus it was submitted that the Judge was entitled to ensure that as far as possible the outcomes in respect of the co-offenders were similar.
[39] It was further submitted that the Judge was fully justified in passing the sentences that he did and that otherwise there would have been a "disparity such as to give rise to some justifiable sense of grievance or the appearance that justice was not being done".
[40] It was submitted that the Crown in this case is effectively asking this Court to make a finding of fact different from that of the sentencing Judge, which would be untenable. It was further submitted that the sentences imposed by him were within his judicial discretion so long as statutory principles binding upon him were complied with, which occurred.
[41] It was submitted for the respondents that a Judge has a discretion to impose a sentence which meets all the particular circumstances of the case and in that regard the sentences imposed in this case were not wrong in principle. It was submitted that the sentences conformed to the principle that "the administration of justice is best preserved if justice appears to be administered even-handedly".
[42] It was further submitted for the respondents that the Judge was required to take parity of sentence into account as otherwise the appellate Court would intervene to correct what would be an error in sentencing principle. It was thus submitted that the sentencing Judge was correct to conclude that he should make an exception from the normal requirement upon the Court to impose a sentence of imprisonment in the particular case.
[43] It was further submitted for the respondents that it is a result of the Crown’s own approach to the manner in which it prosecuted the four co-offenders that the present situation has occurred. It was submitted that because of the Crown’s approach it would be unfair and unjust for this Court to interfere with the decision of the District Court following the manner in which Mrs Sullivan and Mr Abbott were dealt with.
[44] The respondents echo the finding of the sentencing Judge that this is a one-off case, which, because of its peculiar progress through the Courts, cannot serve as a precedent in the future for paua sentencing.
[45] For Mr Karaitiana it is further submitted that the six month’s delay between his plea of guilty and his ultimate sentencing added to the penalty upon him. The delay related in particular to Mr Te Kaha’s challenge to the summary of facts and was not brought about by Mr Karaitiana.

Discussion

[46] We first reject the submission for the respondents that the sentencing Judge was in a better position to determine the facts than this Court. We accept that he was in a better position to evaluate Mr Te Kaha’s involvement in respect of the fourth transaction when he heard his evidence on that. However, as he rejected Mr Te Kaha’s evidence in finding him a party to the fourth transaction, that is of no moment. In respect of other factual matters, he was not the trial Judge and cannot be in any better position than this Court to make a determination on the factual material, which is identical before both Courts.
[47] With all respect to the Judge and the submissions of counsel, we find that the Judge erred in principle in his approach to the sentencing of the respondents. The obligation upon him was to fix an appropriate starting point for the respondents’ culpability in respect of their offending as if found guilty at trial and then consider whether overall the crime was aggravated or mitigated by the respondents’ personal circumstances such that the sentence to be imposed should be higher or lower than the starting point: R v Mako [2000] 2 NZLR 170 at 179 [34]. If there is to be any transparency in the sentencing process and the application of s 9 Sentencing Act 2002 that is essential.
[48] Instead of adopting that principled approach, the Judge started from what had happened to the co-offenders. That was not only wrong but the Judge had been seriously misled as to the true position, particularly as Mr Abbott had served his sentence. As a result in using Mrs Sullivan’s sentence as the yardstick he immediately created an unjustified disparity between the respondents’ and Mr Abbott. What had happened to the co-offenders might have entitled the Judge to mitigate the sentence that was otherwise appropriate to a greater or lesser extent. It did not, however, justify the Judge failing to conform to the proper approach to the sentence to be imposed. An inadequate sentence cannot justify additional inadequate sentences; R v Thompson and Pullen-Burry, CA245/98 & CA267/98, 22 December 1998, makes this clear.
[49] If the Judge had approached the matter in the correct manner he would have been obliged to take a starting point of between one and two years imprisonment, as Judge McKegg had done in the case of Mr Abbott. He would have had to take into account that the respondents were the initiators of the offending involving Mr Abbott and that their culpability had to be no less than his. He would then have had to assess the aggravating and mitigating circumstances relating to each respondent and make such adjustment to his starting point as he thought fit.
[50] We consider that if the Judge had approached the matter in that way he would have taken a starting point for Mr Karaitiana of not less than 15 months imprisonment and for Mr Te Kaha of not less than 12 months imprisonment. That reflects their comparable culpability.
[51] The Judge identified as an aggravating factor for Mr Karaitiana his breach of a community work programme relating to another sentence. That of itself was inappropriate as Mr Karaitiana was not being sentenced for that and had previously been convicted and discharged. However, it is clear that Mr Karaitiana was the prime instigator, which is also why a higher starting point for him is justified. There do not appear to be any aggravating factors relating to Mr Karaitiana. The principal mitigating factor is his late plea of guilty, which could not have justified a discount of more than about 15%.
[52] There are no aggravating circumstances noted in respect of Mr Te Kaha and again the only mitigating factor of consequence is the late plea of guilty.
[53] If the Judge had then sought to bring the sentences into line with Mr Abbott’s, he might have rounded the resulting figures downwards so that Mr Karaitiana was sentenced to 12 months imprisonment and Mr Te Kaha to nine months imprisonment. We would add that on any basis we would regard Mr Abbott’s sentence as lenient and that in ordinary circumstances those sentences would also be unduly lenient.
[54] We therefore consider the Crown’s applications for leave to appeal are more than made out and must be granted. It follows the resultant appeals must be allowed.
[55] As this is a Solicitor-General appeal any sentence by this Court must be the minimum required to mark the factors already traversed. We must take into account in addition the periods of community work served, particularly by Mr Te Kaha, and the delay in sentencing, affecting Mr Karaitiana in particular. We therefore intend further to reduce the otherwise appropriate minimum sentences to bring those matters into account.

Result

[56] The result is that the community work sentences imposed on both respondents are quashed. Mr Te Kaha is sentenced to six month’s imprisonment and Mr Karaitiana to nine month’s imprisonment.
[57] In the ordinary course we would not have considered Mr Abbott, Mr Te Kaha or Mr Karaitiana should have been granted leave to apply for home detention. However, in the unusual circumstances with which we are faced, when Mr Abbott was able to apply for home detention, we feel we must grant the respondents a similar indulgence. We therefore order that both respondents may apply for home detention.
[58] As a consequence each prison sentence is deferred for a period of two months or the period ending with the date on which the Parole Board determines in respect thereof an application for home detention, whichever is the sooner.

Solicitors:
Crown Law Office, Wellington for Crown
J E Boyack, Auckland for Respondent Karaitiana

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[1]	The Solicitor-General applies for leave to appeal against sentences imposed by Judge Blackie in the District Court at Manukau of 320 hours community work in respect of Mr Te Kaha and 350 hours community work in respect of Mr Trent John Karaitiana.
[2]	The sentences were imposed in respect of the crime of conspiracy. Both the respondents along with two others, Mrs Raelyn Jean Sullivan and Mr Kevin Wayne Abbott, were charged in March 2003 that between 12 December 2002 and 25 March 2003 they did conspire by deceit, falsehood or other fraudulent means, namely, by taking possession of and dealing in ordinary paua otherwise than in accordance with the provisions of the Fisheries Act 1996 to defraud the public by unlawfully depriving the public of the economic benefit to be gained from that paua and depleting the paua resource of New Zealand.
[3]	Both the respondents ultimately pleaded guilty to that charge.
[4]	The Crown seeks leave to appeal upon the basis that the sentences imposed on the respondents are manifestly inadequate and wrong in principle. The respondents oppose the application for leave to appeal.

[5]	In support of the case against the four individuals named above, the Crown relied on four defined transactions or sequence of events.
[6]	The first transaction involved Mrs Sullivan and Mr Karaitiana. In December 2002 Mr Karaitiana harvested 5.1 kilograms of paua. It was sold to a special duties fisheries officer through his mother, Mrs Sullivan, for $225.
[7]	The second transaction was of a similar nature. In January 2003 20.5 kilograms of paua was harvested by Mr Karaitiana. It was sold to a special duties fisheries officer through his mother for $3000. There was a third party involved in a very limited way in respect of this transaction. Mr Sullivan, the husband of Mrs Sullivan, was charged as a party to the sale and pleaded guilty under s 232 Fisheries Act 1996. He was convicted and discharged on account of medical evidence attesting to health problems and his position is irrelevant in respect of the present application.
[8]	The third transaction saw the involvement of Mr Te Kaha with Mr Karaitiana and Mrs Sullivan. Believing he had a market for up to one tonne of black market paua, Mr Karaitiana contacted his uncle, Mr Te Kaha, requesting he become involved and arrange a source for the large quantities of paua that he expected to be able to handle. Mr Te Kaha in turn contacted Mr Abbott of Blenheim, a fisherman known to Mr Te Kaha, who agreed to assist. As a result, Mr Karaitiana, through Mrs Sullivan, offered the special duties fisheries officer one tonne of paua to be supplied in two lots of half a tonne with the price being $62,500 per half tonne. In March 2003 Mr Abbott supplied 50 kilograms of paua to Mr Te Kaha, who personally collected it from him. The respondents then transported it to Wellington where the two men handed it to Mrs Sullivan, who in turn sold it to the special duties fisheries officer for $9000 cash.
[9]	The fourth and last transaction was an unsuccessful attempt to arrange to provide the special duties fisheries officer with 400 kilograms of the initial half tonne promised in late March 2003. It was really a continuation of the third transaction. Mr Te Kaha disputed his involvement in this endeavour. There was a disputed fact hearing held by the sentencing Judge to determine his involvement. It is clear from his sentencing remarks that the Judge rejected Mr Te Kaha’s claim that he had resiled from the enterprise at this time. Once again Mr Te Kaha saw Mr Abbott. On this occasion Messrs Te Kaha and Karaitiana returned empty handed to the North Island. Word was passed to the special duties fisheries officer via Mrs Sullivan that their provider currently had 100 kilograms of paua and that they would have the additional 300 kilograms for sale the next day. However, the fisheries officials decided to arrest the conspirators at that time. Mr Abbott was found to have 88 kilograms of paua in his possession.
[10]	What then happened is that the respondents along with Mrs Sullivan and Mr Abbott were charged with the conspiracy offence to which the present appeal relates. However, before the depositions hearing in respect of that charge, alternative summary charges were laid under s 232 Fisheries Act 1996 against the four for selling paua taken in contravention of that Act.
[11]	Mrs Sullivan pleaded guilty to three charges under the Fisheries Act 1996 that did not attract prison sentences and was sentenced to 320 hours community work. She appealed against that sentence but it was upheld in the High Court at Auckland on 19 August 2004, CRI-2004-404-00267. After those pleas of guilty the Crown did not pursue the conspiracy charge against her. The Crown regarded her as a pawn of her son, in particular, and Mr Te Kaha. There were other factors that caused the Crown to treat her case as less culpable. She had no previous convictions, a record of community involvement and personal circumstances relating to the health of herself and her husband that justified leniency.
[12]	Mr Abbott pleaded guilty in June 2003, before the prosecution evidence had been briefed and well in advance of depositions, to a charge under the Fisheries Act. He was sentenced in the District Court at Blenheim on 15 August 2003 to nine months imprisonment, with leave to apply for home detention, which was granted. Judge McKegg said he took a starting point of somewhere between one and two years imprisonment. He referred to the particular aggravating features relating to Mr Abbott’s offending, including earlier Fisheries Act offences, and the strong mitigating circumstance including a very early guilty plea. For the starting point for the sentence he relied upon the decision in the High Court of Dewes v Ministry of Agriculture and Fisheries, AP20/02, High Court, Gisborne, 7 October 2002, Salmon J. We will return to that decision a little later.
[13]	Mr Abbott served his sentence. However, his conviction was quashed on appeal as a result of this Court’s decision in R v Armstrong CA194/03 15 September 2003: see Abbott v Ministry of Fisheries, CRI-10-03, High Court, Blenheim, 17 February 2004, E France J. In Armstrong it was held that the section under which Mr Abbott had been convicted and sentenced involved a drafting error, which meant that convictions under the section could not be sustained in circumstances such as Mr Abbott’s. Because of Mr Abbott’s plea of guilty to the Fisheries Act charge the Crown did not pursue the conspiracy charge against him.

[14]	Judge Blackie had before him the summary of facts in a rather more extended form than set out above, together with the evidence of Mr Te Kaha relating to his involvement in what was described as the fourth transaction already referred to above. That information provided the basis for determining the culpability of the respondents.
[15]	The Judge also had before him pre-sentence reports relating to both respondents together with a number of testimonials relating to Mr Te Kaha. This information, together with counsels’ submissions, enabled him to determine the aggravating and mitigating circumstances relating to both respondents.
[16]	At the time of sentencing Mr Te Kaha was 45 years of age. He had been regularly before the Courts in the 1970s and 1980s for a range of offending. Much of it arose from or related to his drugs and alcohol problems. In the earlier part of the period he was no stranger to custodial sentences. In 1990, to his credit, he overcame his addictions. Since then, apart from one minor driving offence, his only offending has arisen out of a particular political protest. He accepted that his motivation was greed but in speaking to the probation officer sought to minimise his involvement in the offending and to place responsibility on his co-offenders, particularly Mrs Sullivan and Mr Karaitiana. He married in 2003 and has a young son. He provides for his family through his pounamu and whalebone carvings. He regarded his offending as aberrant and said that he was unlikely to re-offend. The pre-sentence report did not comment on that assessment.
[17]	Mr Karaitiana was almost 31 years of age at the time of sentencing. He also has a background of lawlessness, in his case spanning the 12 or 13 years prior to the offending with which we are concerned. None of it has attracted a custodial sentence. Like Mr Te Kaha, he sought to minimise his involvement and blame his associates for the present offending. Indeed, to the probation officer he denied responsibility in respect of it. Nevertheless he conceded that he became greedy and viewed his involvement as an opportunity to make money. He has two daughters, one of whom is cared for by him. He has been in part-time and casual work for a removal firm that speaks well of him. However, the pre-sentence report assessed him as being at a moderate risk of re-offending and said his motivation to change was ambivalent.
[18]	In sentencing the respondents the Judge referred to the background and matters already traversed. The Judge noted that in respect of culpability Mr Karaitiana would have had an amount of 113.5 kilograms pass through his hands and Mr Te Kaha 90 kilograms. He noted the potential for a further 88 kilograms to come into their possession had they been able to uplift that amount from Mr Abbott. He did not refer to the respondents’ expectations of handling larger quantities for substantial sums of money.
[19]	The Judge referred briefly to the Sentencing Act and the Fisheries Act. He went on to refer to the aggravating factors urged upon him by the Crown of premeditation and planning in respect of the conspiracies. He also traversed the mitigating factors urged upon him by counsel for the respondents, such as the pleas of guilty, the remorse expressed through the probation reports and through counsel, combined with the respondents’ personal circumstances and the submissions that they were unlikely to re-offend in this way. He noted the need under the Fisheries Act that steps be taken where possible by the Courts to maintain the country’s fisheries resource.
[20]	The Judge went on to cite the cases referred to him, to which we will return. In particular, he accepted that in general terms, where there is anything but a minor commercial operation, a sentence of imprisonment would be appropriate and in large scale operations sentences of between three and four years imprisonment would be justified. He recognised that the respondents’ involvement was on a commercial scale. The respondents were offending for the money and a total of between $12,000 and $13,000 changed hands. He noted the sentence imposed on Mr Abbott of nine months imprisonment after his very early plea of guilty. However, he was seriously misled as he was unaware Mr Abbott served his sentence and thought he had only served a small portion of it. He recognised that the maximum penalty for the offence was five years imprisonment.
[21]	In respect of Mr Karaitiana the Judge recorded that the picture given by the probation officer of an intention to minimise involvement was not the real picture. He accepted that Mr Karaitiana did not endeavour to minimise his offending. Nevertheless, he said submissions were made which did endeavour to do that, in particular that much of what was said to the special duties fisheries officer was just talk or puffery. That was in contrast to a statement that Mr Karaitiana thought the money that he would earn through the offending would give him a life again. The Judge noted that Mr Karaitiana had never been sentenced to a period of imprisonment but that he had pleaded guilty to two breaches of community work sentences.
[22]	In respect of Mr Te Kaha the Judge recognised that since 1990 Mr Te Kaha had freed himself from his dependence on drugs and alcohol. The Judge took the view that Mr Te Kaha was the prime mover in respect of the third transaction.
[23]	The Judge went on to say:

[28]	In Dewes, Salmon J was dealing with an appeal against a sentence of 12 months imprisonment for paua offending where there were two sales of paua with a combined weight of 81.5 kilograms. That offending was being dealt with under the Fisheries Act. The Judge had before him not only the decisions of Walters and Nicholas and Brown but also some four other instances of District Court sentencings in respect of paua. He therefore felt it helpful for sentencing Judges in the District Court to express the view that offences involving very large quantities of paua or other fish could expect to attract the maximum penalty of five years imprisonment and a $250,000 fine under the Fisheries Act. Large commercial operations would attract penalties of three years or more. Medium sized commercial operations would justify a penalty in the range of one or two years although there could be some modification depending upon whether a fine was imposed as well. It would only be small commercial operations that would justify consideration of a non-custodial sentence.
[29]	Salmon J’s approach received approval from this Court in R v Zhang CA153/04 13 July 2004.
[30]	The decisions in Dewes and Zhang were both before the Judge at the time of sentencing.

[31]	The Crown submitted that the Judge misapplied the parity principle by striving for equality of outcome without having regard to the appropriate sentence for the respondents and to the particular factors that justified the outcomes for their co-offenders. Thus the Crown submitted that the Judge erred and as a result imposed unjustifiable and manifestly inadequate sentences on the respondents.
[32]	The Crown accepted that the parity principle required that where there is no justification of different treatment of co-offenders, approximate parity between the sentences should be imposed. However, it was submitted that this principle does not obligate a Judge to impose the same or a similar sentence on co-offenders. It was submitted that the scope for different treatment is substantial and that that was illustrated by the decision in Nicholas and Brown where imprisonment for one offender and a suspended sentence and periodic detention for another offender was upheld. The Crown also referred to R v Autagavaia [1985] 1 NZLR 398. The Crown submitted that the parity principle only applied where the difference between the sentences imposed on co-offenders is unjustifiable.
[33]	It was submitted for the Crown that the Judge was wrong to use the sentence imposed on Mrs Sullivan as a reference point for the sentencing of the respondents. The Crown position in respect of Mrs Sullivan was that she had been co-operative from when first arrested and had made a frank statement admitting her involvement in the offending and was plainly remorseful. The Crown formed the view already recorded that she was used initially by Mr Karaitiana and then by both respondents to act as a conduit in the deals. She was not the instigator of the conspiracy or one providing the impetus for further deals or the one who stood to gain any real profit from the transactions. The offending which she pleaded guilty to did not carry a term of imprisonment. That was a decision made by the Crown, tailored to her situation and plainly available to it.
[34]	It was Mr Abbott and the respondents who were seen by the Crown as being the most culpable offenders. They were the ones who stood to benefit most. Mr Abbott pleaded guilty early, so early that the prosecution file had not been briefed, and well in advance of depositions. Thus the sentence of nine months imprisonment upon him was explicable and would have been an appropriate point of reference for the sentencing Judge in respect of the respondents. It was submitted for the Crown that it is contrary to the interests of justice and not supportable according to any legal principle that his good luck in having the conviction ultimately quashed should influence the approach at sentencing for the respondents.
[35]	It was submitted for the Crown that the Judge was wrong in regarding all four as equal principals in the offending and that Mrs Sullivan’s position in particular was clearly distinguishable for reasons which we do not need to further enlarge upon.
[36]	It was submitted for the Crown that an appropriate starting point for the respondents’ offending would be in the vicinity of 15-18 months imprisonment and that in light of their late guilty pleas after the case had been briefed for trial it should not have attracted any great credit. Mr Te Kaha pleaded guilty on the Monday a two-week trial was set to commence. Mr Karaitiana’s plea was on the Thursday before.
[37]	It was noted for the Crown that at this time Mr Te Kaha has completed about 90 hours of his community work sentence and Mr Karaitiana about 20 hours of his. It is accepted they must have credit for that.
[38]	The respondents submitted that the Judge was fully entitled to adopt the course that he did. It was submitted that the Judge correctly took the view that in the ordinary course a custodial sentence would be fully justified but that the issue of parity did not permit that outcome. It was submitted that this was appropriate when the Judge had determined that the involvement of the respondents was no greater than their co-offenders. It was submitted that that was a finding open to the Judge. Thus it was appropriate that the Judge took Mrs Sullivan’s sentence for the reason that Mr Abbott carries no conviction for what was similar wrongdoing by a quirk of fate. It was noted that had the respondents elected to plead guilty like Mr Abbott they would have been in the same position as him, free of any conviction. It was submitted that in the unique circumstances in this case the quirk of fate in respect of Mr Abbott should not cause inequality among those who were equally responsible. Thus it was submitted that the Judge was entitled to ensure that as far as possible the outcomes in respect of the co-offenders were similar.
[39]	It was further submitted that the Judge was fully justified in passing the sentences that he did and that otherwise there would have been a "disparity such as to give rise to some justifiable sense of grievance or the appearance that justice was not being done".
[40]	It was submitted that the Crown in this case is effectively asking this Court to make a finding of fact different from that of the sentencing Judge, which would be untenable. It was further submitted that the sentences imposed by him were within his judicial discretion so long as statutory principles binding upon him were complied with, which occurred.
[41]	It was submitted for the respondents that a Judge has a discretion to impose a sentence which meets all the particular circumstances of the case and in that regard the sentences imposed in this case were not wrong in principle. It was submitted that the sentences conformed to the principle that "the administration of justice is best preserved if justice appears to be administered even-handedly".
[42]	It was further submitted for the respondents that the Judge was required to take parity of sentence into account as otherwise the appellate Court would intervene to correct what would be an error in sentencing principle. It was thus submitted that the sentencing Judge was correct to conclude that he should make an exception from the normal requirement upon the Court to impose a sentence of imprisonment in the particular case.
[43]	It was further submitted for the respondents that it is a result of the Crown’s own approach to the manner in which it prosecuted the four co-offenders that the present situation has occurred. It was submitted that because of the Crown’s approach it would be unfair and unjust for this Court to interfere with the decision of the District Court following the manner in which Mrs Sullivan and Mr Abbott were dealt with.
[44]	The respondents echo the finding of the sentencing Judge that this is a one-off case, which, because of its peculiar progress through the Courts, cannot serve as a precedent in the future for paua sentencing.
[45]	For Mr Karaitiana it is further submitted that the six month’s delay between his plea of guilty and his ultimate sentencing added to the penalty upon him. The delay related in particular to Mr Te Kaha’s challenge to the summary of facts and was not brought about by Mr Karaitiana.

[46]	We first reject the submission for the respondents that the sentencing Judge was in a better position to determine the facts than this Court. We accept that he was in a better position to evaluate Mr Te Kaha’s involvement in respect of the fourth transaction when he heard his evidence on that. However, as he rejected Mr Te Kaha’s evidence in finding him a party to the fourth transaction, that is of no moment. In respect of other factual matters, he was not the trial Judge and cannot be in any better position than this Court to make a determination on the factual material, which is identical before both Courts.
[47]	With all respect to the Judge and the submissions of counsel, we find that the Judge erred in principle in his approach to the sentencing of the respondents. The obligation upon him was to fix an appropriate starting point for the respondents’ culpability in respect of their offending as if found guilty at trial and then consider whether overall the crime was aggravated or mitigated by the respondents’ personal circumstances such that the sentence to be imposed should be higher or lower than the starting point: R v Mako [2000] 2 NZLR 170 at 179 [34]. If there is to be any transparency in the sentencing process and the application of s 9 Sentencing Act 2002 that is essential.
[48]	Instead of adopting that principled approach, the Judge started from what had happened to the co-offenders. That was not only wrong but the Judge had been seriously misled as to the true position, particularly as Mr Abbott had served his sentence. As a result in using Mrs Sullivan’s sentence as the yardstick he immediately created an unjustified disparity between the respondents’ and Mr Abbott. What had happened to the co-offenders might have entitled the Judge to mitigate the sentence that was otherwise appropriate to a greater or lesser extent. It did not, however, justify the Judge failing to conform to the proper approach to the sentence to be imposed. An inadequate sentence cannot justify additional inadequate sentences; R v Thompson and Pullen-Burry, CA245/98 & CA267/98, 22 December 1998, makes this clear.
[49]	If the Judge had approached the matter in the correct manner he would have been obliged to take a starting point of between one and two years imprisonment, as Judge McKegg had done in the case of Mr Abbott. He would have had to take into account that the respondents were the initiators of the offending involving Mr Abbott and that their culpability had to be no less than his. He would then have had to assess the aggravating and mitigating circumstances relating to each respondent and make such adjustment to his starting point as he thought fit.
[50]	We consider that if the Judge had approached the matter in that way he would have taken a starting point for Mr Karaitiana of not less than 15 months imprisonment and for Mr Te Kaha of not less than 12 months imprisonment. That reflects their comparable culpability.
[51]	The Judge identified as an aggravating factor for Mr Karaitiana his breach of a community work programme relating to another sentence. That of itself was inappropriate as Mr Karaitiana was not being sentenced for that and had previously been convicted and discharged. However, it is clear that Mr Karaitiana was the prime instigator, which is also why a higher starting point for him is justified. There do not appear to be any aggravating factors relating to Mr Karaitiana. The principal mitigating factor is his late plea of guilty, which could not have justified a discount of more than about 15%.
[52]	There are no aggravating circumstances noted in respect of Mr Te Kaha and again the only mitigating factor of consequence is the late plea of guilty.
[53]	If the Judge had then sought to bring the sentences into line with Mr Abbott’s, he might have rounded the resulting figures downwards so that Mr Karaitiana was sentenced to 12 months imprisonment and Mr Te Kaha to nine months imprisonment. We would add that on any basis we would regard Mr Abbott’s sentence as lenient and that in ordinary circumstances those sentences would also be unduly lenient.
[54]	We therefore consider the Crown’s applications for leave to appeal are more than made out and must be granted. It follows the resultant appeals must be allowed.
[55]	As this is a Solicitor-General appeal any sentence by this Court must be the minimum required to mark the factors already traversed. We must take into account in addition the periods of community work served, particularly by Mr Te Kaha, and the delay in sentencing, affecting Mr Karaitiana in particular. We therefore intend further to reduce the otherwise appropriate minimum sentences to bring those matters into account.

[56]	The result is that the community work sentences imposed on both respondents are quashed. Mr Te Kaha is sentenced to six month’s imprisonment and Mr Karaitiana to nine month’s imprisonment.
[57]	In the ordinary course we would not have considered Mr Abbott, Mr Te Kaha or Mr Karaitiana should have been granted leave to apply for home detention. However, in the unusual circumstances with which we are faced, when Mr Abbott was able to apply for home detention, we feel we must grant the respondents a similar indulgence. We therefore order that both respondents may apply for home detention.
[58]	As a consequence each prison sentence is deferred for a period of two months or the period ending with the date on which the Parole Board determines in respect thereof an application for home detention, whichever is the sooner.