Ministry for Primary Industries v F & R Home Improvements Limited [2017] NZDC 19179 (22 August 2017)

Last Updated: 19 February 2018

IN THE DISTRICT COURT AT NORTH SHORE

CRI-2017-044-003200

[2017] NZDC 19179

MINISTRY FOR PRIMARY INDUSTRIES

Prosecutor v

F & R HOME IMPROVEMENTS LIMITED Defendant

Hearing:	22 August 2017
Appearances:	M Bannoan for the Prosecutor A Fisher on behalf of J Murray for the Defendant
Judgment:	22 August 2017

NOTES OF JUDGE L I HINTON ON SENTENCING

& R Home Improvement Limited is before the Court in relation to two charges to which the company has pleaded guilty under s 154N(6) Biosecurity Act 1993. These charges are: first, failure to comply with an authorisation by directing consignments to a place that was not an Approved Transitional Facility, and secondly, failure to comply with an authorisation by unloading consignments without an Accredited Person present. The maximum fine in relation to each of these charges is

$100,000.

he Ministry is represented today by Mr Bannon and the company by Ms Fisher.

MINISTRY FOR PRIMARY INDUSTRIES v F & R HOME IMPROVEMENTS LIMITED [2017] NZDC 19179 [22 August 2017]

joint memorandum of counsel in relation to sentence has helpfully been supplied and I thank counsel for this. I have considered this memorandum. The net result is that the parties are agreed a starting point of a total of $19,000 ($10,000 and

$9,000, respectively) is appropriate in relation to this offending, From that there are mitigating factors, including remedial steps taken and prompt guilty plea, that will erode that starting point in each case.

turn briefly to the summary of facts, noting first the statement headed Impact Report in the summary attached to the submissions. This is to the effect, and it is important to bear in mind, that the purpose of the Biosecurity Act 1993 is to provide for the effective management of risks associated with the importation of risk goods.

he objective of the Act is to protect New Zealand from the incursion of unwanted pests and organisms. So that all sea containers imported from overseas into New Zealand must be cleared by MPI, which is the prosecutor in relation to these charges. Clearance is necessary to protect against the introduction of unwanted pests or diseases that could seriously affect New Zealand’s primary industries. So biosecurity legislation is focused on eliminating or minimising risk.

t goes without saying that there is a substantial public interest in all of this, it being self-evidently in the interests of the community that containers imported into New Zealand are clean and free of pests and biosecurity contamination. So containers that are imported are directed from secure quarantine areas at various ports to private businesses which must be approved by MPI as transitional facilities where further quarantine measures are applied before goods are cleared.

ncleared containers must not be de-vanned or opened at any place other than the ATF, which is the Transitional Facility, and must be opened in the presence of an MPI biosecurity inspector or accredited person. So these are basic prudent requirements of the legislation.

he defendant here, F & R Home Improvement Limited, imports construction materials. It is a small corporate owned by Mr Yuan Ren. The company operates, I understand from Mr Bannon, in the nature of owner-operator. Mr Ren is the sole

director and is in fact the only employee of the company. At the time of the offending Mr Ren had not completed any requisite training to become, and he was not, an Accredited Person under the Act.

etween 9 January and 12 September 2015 the company imported a number of containers from China. Eight containers in seven separate consignments were transported from the port of entry directly to the company premises instead of going to a designated ATF. These were opened, Mr Ren acknowledged, by Mr Ren and without an AP accredited person present, Mr Ren himself not being one.

r Ren acknowledged at the time that he was aware of the Biosecurity Act requirements. A temporary arrangement at the ATF of a neighbouring business had ended. So those briefly are the salient aspects of the offending.

here are quite clearly purposes and principles of the Sentencing Act 2002 that are relevant. The company must be held accountable and responsible. There must be a deterrent element to the sentence which is handed down so far as the company is concerned as well as other business.

mportantly so far as principles of sentencing are concerned, under s 8 of the Act the Court must bear in mind that a maximum penalty prescribed must be imposed if the offending is within the most serious of cases for which that penalty is prescribed, and the Court must have regard to the general desirability of consistency in sentencing. The least restrictive outcome that is appropriate must be imposed.

he company has no previous record of biosecurity offending. Indeed it likely has no other convictions at all, and of course guilty pleas were entered promptly.

he joint memorandum of counsel refers to two decisions: French1 and

CT Logistics Limited v Chan,2 each being prosecutions of MPI.

TTT

1 French [2016] NZDC 24057

2 CT Logistics Limited v Chan, CRI-2014-092-012615

aving regard to those decisions by way of comparison, Mr Bannon has explained to me that a combined fine of $19,000 here as a starting point is seen as appropriate.

n the face of it, without the benefit of the comparison which Mr Bannon has referred to me, and I thank him for the submissions, the starting point seemed to me to be on the modest side having regard to the activity and the potential maximum fine. I can see, however, that the circumstances could be a good deal more serious than those presented by this case.

am prepared to accept counsels’ joint analysis that the starting point suggested is adequate to reflect the view that there is here moderate seriousness and that fines at such a level have a deterrent effect. It seems to me that that this is probably the most important sentencing purpose. And of course, having had regard to the decisions that counsel have referred me to (which I understand are the only two potentially relevant) this means that consistency in sentencing is preserved also.

orking from a starting point of $10,000 and $9000 in each case with an allowance of 25 percent, the end sentences would be $7500 and $6500. The company must be given credit also for remedial steps taken. And there is also, Mr Bannon has fairly acknowledged, a degree of co-operation with the Ministry also from day one. This certainly is acknowledged specifically in the caption sheet where I note that Mr Ren has accepted his knowledge of the regime required by the statute and so forth. It is appropriate that a further deduction of $1000 be made, which would mean end fines of $6500 and $5500.

o in relation to CRN ending 0256, the company is convicted and fined $6500. In relation to CRN ending 0257, the company is convicted and is fined $5500.

L I Hinton

District Court Judge
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