Ministry for Primary Industries v Cameron [2016] NZDC 15057 (3 August 2016)

Last Updated: 6 December 2016

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT NELSON

CRI-2016-042-001023 [2016] NZDC 15057

MINISTRY FOR PRIMARY INDUSTRIES

Prosecutor

v

WILLIAM LEWIS CAMERON

_Defendant

Hearing:	3 August 2016
Appearances:	J A Wotton for the Prosecutor L S B Acland for the Defendant
Judgment:	3 August 2016

_{NOTES OF JUDGE S A THORBURN ON SENTENCING}

[1] This is a sentencing now that I am embarking upon. At the point of first call on a charging document, William Lewis Cameron has pleaded guilty to an offence under the Biosecurity Act 1993. He caused uncleared goods, namely corn seeds which he brought in from Mexico, to leave the biosecurity control area of Auckland Airport without authorisation. The charge sits in a sentencing regime with a maximum penalty under the statute of 12 months imprisonment and/or a fine not exceeding $50,000. The Act has six levels of seriousness of breach and the sections applicable to the offence committed by Mr Cameron are in the fifth level.

[2] Today, on pleading, the summary of facts was read. In anticipation, because of prior communications, a sentencing memorandum was prepared by the prosecutor,

_{and which has an outline of previous sentences in respect to comparable offending.}

MINISTRY FOR PRIMARY INDUSTRIES v WILLIAM LEWIS CAMERON [2016] NZDC 15057 [3 August

2016]

A narrative of other sentences imposed from different parts of the country in comparable circumstances has been useful.

[3] Mr Cameron represents himself. The duty solicitor, Mr Acland, today has had a watching brief and has been in Court too but Mr Cameron, in pleading guilty when the charge was read, then read a prepared statement that he had made about his offending and asks for a discharge without conviction. I have made notes as he spoke to his submissions, and will resort to these in the next few minutes as I try to pull together the implications of what he is submitting on his behalf.

[4] I arranged for a period of stand down because, after having heard from him and referring his submission back to Ms Wotton for the informant today, it is apparent that there was no prior advice that he would be seeking a discharge without conviction, and the normal way in which the Court deals with applications of such nature is to require the merits that would be argued for discharge without conviction to be embodied in some form of memorandum or documentation with supporting materials so that it could be cogently and reasonably assessed for a reply from the informant in opposition and matters would then be put off for another date.

[5] Mr Cameron’s verbal submissions were, I thought, touched with a quite obvious transparency on his part with no apparent intent to fudge or prevaricate on culpability, and curiously to the extent that he acknowledged at the border point, when he disclosed chilli seeds, that he knew he ought to disclose the maize seeds that he had in a packet in his pocket, but chose not to because the explanation that he would give for seeking to bring them in the country was something which he felt he might have difficulty in explaining properly.

[6] The explanations were connected with some emotional experience that he had with villagers in a remote Mexican village who gifted these seeds to him as a gesture of friendship. So there is a narrative around the seeds from the perspective of those villagers, that they were special and blessed and might, in New Zealand parlance, be taonga and thus quite precious.

[7] Mr Cameron is himself a scientist with a master’s degree, and one can understand two things. From a scientific point of view he would be deemed to have knowledge of the importance of scientific method being safeguarded and the integrity of matters such as biosecurity protection that the intent of the Biosecurity Act is crafted around. He would be expected to be articulate in that and understand the purposes and rationale behind it. On the other hand, he has a commitment it seems to teaching and training and one assumes, to direct his guidance or teaching into the sections of the community which are less empowered than others in education and improvement in methods of crop culture. Hence he was over in Mexico on that sort of call; perhaps we could say “mission”. And so there is underlying the technical and scientific aspects of what is to be expected was his knowledge, is an emotional dimension as well, and he got it wrong he says. He admits that he made a bad decision and was foolish.

[8] The curious thing is, and this is a point to be focused upon against his integrity, that he then planted the seeds and grew crop. He believes, and I accept that today because I think he is a person of open honesty, that there was never any risk to biosecurity in respect of these seeds but, of course, that is not the point in terms of his duty and obligation to disclose. So he has had the advantage of his non-disclosure in a practical way, by growing crops.

[9] The next thing that is apparent is that the detection of his offending and the basis upon which the Ministry have charged him has depended entirely upon his own disclosure and co-operation.

[10] Summarising the impact of his submissions in a somewhat holistic and overall way without unpacking his points bit by bit, they are capable of general acceptance. I think the informant appreciates this too, more so than perhaps the Court might because of the prior communications that there have been between the Ministry and Mr Cameron. He is quite able to claim benefit from his own honesty of disclosure and high level co-operation and, as I have already said, without any sense of avoidance of culpability or fudging of truth.

[11] In that sense it is to who has empowered the informant to charge him. He has pleaded guilty straight away, and so he has every right and entitlement I think to amelioration of a penalty when compared to somebody who might have been overtly opportunistic, deceitful and raising issues of avoidance of culpability as is, of course, so frequently and predominantly the experience of the Court.

[12] So the man before the Court is a man of some integrity, who made a very foolish mistake, knows that, knows he should not have done it, knows he should have complied with his duty and obligation, but was overcome at the time with some sense of the specialness in a relational way because of the gesture by which he came into possession of these seeds regarded by their original owners, the Mexican village people, as very special.

[13] He cannot get a discharge without conviction today. That is because the issues he has raised to support that do need to be garnered into some higher level of evidential nature, such as affidavits, letters, testimonials, and investigation into possible implications on future travel and so on. I am not wanting to be pejorative when I say this, but he cannot expect a discharge without conviction on bare submissions. The submissions do have to be supported by some level of evidential material.

[14] Also, from the point of view of an informant, there is fairness. Informant’s do have the right to respond to submissions that might be made for a discharge without conviction, and to respond on the basis of material that has been put up. The Ministry would like that opportunity.

[15] Mr Cameron has made clear that he wants matters dealt with today, and the Court will proceed but he understands, for the reasons I have covered, he cannot expect a discharge without conviction.

[16] Going to the Sentencing Act 2002, in any matter before the Court, under s 11, if a person is charged with an offence and is found or pleads guilty, before imposing a sentence the Court must consider discharge without conviction, conviction and discharge, conviction and order an offender to come up for sentence if called upon.

[17] This is an occasion where I am concluding that lip service has to be specifically paid to that provision which is not often referred to in sentencing, because sentencing’s proceed on their merits beyond discharges, but in theory, under the provisions of the Act, any person who is found guilty or pleads guilty must be considered for discharge without conviction, conviction and discharge or order to come up for sentence if called upon before the Court settles on imposing a sentence.

[18] For the reasons that I have mentioned, I consider that Mr Cameron is probably in a discernibly different situation than many of the cases referred to for my guidance. The details of each case that have been referred to for my guidance are, of course, not in their fullness disclosed and I do not know a lot about them, but it is more likely than not that Mr Cameron’s transparency, his immediate plea, his quite open submissions to me about his culpability, and his relationship with the informant once his offending was placed before him that meant the informant got all of the information it needs to prosecute from him, render him capable of being convicted and discharged.

[19] So that is what I intend to do today. Under s 108 a conviction and discharge does not prevent the Court from making ancillary orders, and I order costs to the informant for what expenses they may have incurred in completing the investigation and bringing the charge, in the sum of $1500.

S A Thorburn

District Court Judge