Department of Conservation v Aberson [2017] NZDC 21392 (20 September 2017)

Last Updated: 6 April 2018

IN THE DISTRICT COURT AT NELSON

CRI-2017-042-000122

[2017] NZDC 21392

DEPARTMENT OF CONSERVATION

Prosecutor v

ROBERT DEREK ABERSON Defendant

Hearing:	20 September 2017
Appearances:	J W Hardy for the Prosecutor S J Grey for the Defendant
Judgment:	20 September 2017

NOTES OF JUDGE D C RUTH ON SENTENCING

[1] Robert Derek Aberson, you have pleaded guilty to a representative charge laid under s 63(1)(a) Wildlife Act 1953 in that you, without lawful authority, hunted or killed an absolutely protected species of wildlife namely, kea.

[2] In determining this matter today, the starting point must be the summary of facts. I say that because I have not been invited to have a hearing as to any dispute on the facts and so the facts must proceed on the summary that has been provided and which, in the absence of any other hearing about facts, is deemed to be your acceptance of those facts.

[3] This tells me that the Department of Conservation, known as DOC, administers the Wildlife Act 1953. Under that Act all wildlife throughout New Zealand is

DEPARTMENT OF CONSERVATION v ROBERT DEREK ABERSON [2017] NZDC 21392 [20 September 2017]

absolutely protected unless declared otherwise. The kea is the world’s only mountain parrot and has been absolutely protected in New Zealand since 11 December 1986. They are found only in the South Island, mostly in the alpine areas including in and around the Abel Tasman National Park.

[4] While absolute numbers are not known, it is estimated that some 5000 kea remain in the wild and they have a current conservation status of “threatened” and “nationally endangered” on the basis of ongoing predicted decline.

[5] In August 2016 DOC rangers were contacted by concerned members of the public who reported you had been making statements that you had shot some kea that were causing damage at your property at Canaan, near Takaka which joins the Abel Tasman National Park on three boundaries.

[6] Subsequently, DOC staff, assisted by police, executed a search at your address on 6 September 2016 pursuant to the Wildlife Act. Nothing of interest was then located and DOC staff left a notice advising that the property had been searched and thereafter returned to their office.

[7] Later that day you spoke by phone to DOC staff about their investigation into the reports that you had shot kea at your property. In the phone call you said a group of up to eight kea were a problem around your house and had attacked you. You said that you had used a .22 rifle and had shot two of them and that put a stop to it and scared all the other birds away.

[8] In the phone call on 6 September, you also complained about the state of Canaan Road. DOC staff asked to meet with you to discuss the kea shooting and you agreed to a meeting at your property a couple of days later.

[9] On 8 September two DOC rangers went to your address and spoke to you. You claimed that you had spread the word around that you had been killing “pesky kea” as you knew someone from DOC would turn up in person and you could then explain your concerns about the road.

[10] On 20 September you came back into the DOC Motueka office and said that your conscience had been getting the better of you and that you wanted to confess to killing a kea. At your interview you admitted that approximately four or six weeks earlier you had shot kea at your property, initially with an air pistol and then with a

.22 air rifle. You said that that was to stop the keas destructive behaviour.

[11] You said you shot one kea in the early evening and in the low light thought you had injured its wing. The following evening the kea returned with eight birds there in total. You said, “I then got my .22 rifle out and I set up a kea through the telescope and I shot it. It was about 10 or 15 metres away. I wounded it and then I finished it off with two to three more shots.” You said that the other kea then left and you claimed that you had not seen them ever since.

[12] When asked what you had done with the kea that you had shot dead, you said you had buried in your compost pile at the front of your house. You further said that after receiving the telephone call from DOC in early September you had dug the dead kea up and burnt the remaining carcass, which at that stage you said was little more than feathers and a beak, in the fireplace of your house.

[13] You also said that you were aware that kea had “some status and that you were not supposed to shoot them”. You live on your property adjoining the Abel Tasman National Park and you are retired. You have not previously appeared before the Court.

[14] So the charge that you have pleaded guilty to is a representative charge covering the instances I have referred to.

[15] The maximum penalty in respect of this charge is a term of imprisonment of two years or a fine of $100,000 or both. The Department points out that that represents a substantial increase in penalties since about 2013 where previously the penalty for imprisonment was limited to six months and now of course at two years it does represent a significant uplift in the seriousness with which Parliament regards this activity.

[16] Today on your behalf Ms Grey has filed written submissions. The focus of those is to endeavour to persuade this Court that the circumstances are such that you should be discharged without conviction.

[17] The Department represented by Mr Hardy, here today, opposes that course upon the basis that the three step process to be undertaken pursuant to s 107 Sentencing Act 2002 would not meet the test required to enable the Court to properly exercise its discretion pursuant to s 106, thereby discharging you.

[18] The factors to which Ms Grey points are firstly, the fact that you have no previous Court appearances or any convictions of any type anywhere. That is not contested.

[19] I am told by Ms Grey that you had an impeccable background as a commercial airline pilot in the USA with a very high level of security clearance, in charge of security of the plane.

[20] What you did was to bring your family to this country to take advantage of what you saw as a better lifestyle away from city life and the property where you live is remote. You live by and large a self sufficient lifestyle there which has had its challenges and there is no doubt about that. There is no cellphone connection, nor any other form of communication and it really is a matter of subsistence living. The challenges have been such, as I understand it, that other family members of yours felt the need to leave that area, but do visit you from time-to-time.

[21] Ms Grey says that you were taken aback and perhaps under threat from your perspective as to the kea and their destructive ways which are well documented and your position as put by Ms Grey is that you may have had justification in that regard for shooting, that you may have had some claim of self-defence either of yourself or your property in shooting kea.

[22] Those submissions do not find favour with me. I accept that the behaviour of these birds can be troubling, but I do not regard your situation as being one where

either self-defence or necessity or compulsion or any of those common law factors apply in your case.

[23] What I have to do is undertake a three step process and firstly I have to ask, what is the culpability here? What is the seriousness of the matter to which you have pleaded? I then have to make an assessment of what are the ascertainable consequences direct or indirect of the entry of a conviction against you.

[24] Thirdly, I have to ask whether there is a disproportionality in that equation and if there is, I am then entitled to exercise my discretion to stand back and not convict you. If that course was followed the Court, however, is able to make orders that are applicable in the circumstances.

[25] Firstly then as to the seriousness or your culpability in this matter. Because of the definition of hunting, the fact that you took a firearm to the birds concerned here brings you within that definition and that I think is borne out by the Wildlife Act itself where hunting or killing in relation to any wildlife includes hunting, killing, taking, trapping or capturing of any wildlife by any means also includes pursuing, disturbing or molesting any wildlife, taking or using a firearm, dog or like method to hunt or kill wildlife. Whether this results in killing or capturing or not is immaterial and also it includes every attempt to hunt or kill wildlife and every active assistance of any other person to hunt or kill wildlife. I am satisfied that while this was not a hunting expedition as might be thought in the traditional sense of hunting, what you did does fulfil the statutory definition in this case.

[26] Was it serious? The Department says that there is moderate seriousness here because of the declining population of this bird. The fact that it is an absolutely strict liability offence. That a number of persons who are interested in the preservation of these birds and other protected wildlife have, to a greater or lesser degree, expressed their anger or displeasure at what has happened here. While I hesitate to attach a lot of weight to them as victim impact statements, I do take note of the extent of community concern that has been expressed in relation to this event.

[27] Those portions of our community are as far flung as the Kea Conservation Trust through to various tangata whenua and through to the Friends of Cobb and Friends of Flora Motueka and to various persons in their own right.

[28] The fact as has been pointed out by Mr Hardy for the Department, that the penalty was increased so significantly some little time ago is proof enough of the seriousness with which this type of activity is regarded. I have been referred to the case of Tawha v Fish & Game New Zealand.1 There are various comments made in that judgment that reflect the Parliamentary debates when the Bill was then before Parliament. One of the comments which has been referred to me says as follows:

This Bill sends a very, very strong message that we take protection of New Zealand’s wildlife and natural areas very, very seriously.

[29] And so there seems to me to be little scope for argument that this was other than a moderately serious case of its kind in circumstances where I am satisfied that things you said yourself to the relevant authorities indicated that you had at least some knowledge of the import of what you were doing and the deliberateness of what you were doing.

[30] You make some comment through Ms Grey about the possible limitations of your knowledge as to the status of these birds, but of course ignorance of the law does not excuse these acts and I am satisfied that what has been set out in the summary of facts is sufficient for me to take the view that you had sufficient knowledge for there to have been no doubt in your mind that what you were doing was wrong.

[31] Another aspect of the seriousness occurs to me as being the fact that in both cases the shots you fired were into darkness or semi-darkness. That in my mind is at the very least extremely reckless. You could have shot anything, you would not have known. Indeed it could have been a person who was there per chance. So, I regard the actual event as being serious and moderately so.

[32] I then have to ask myself, what are the consequences of entry of a conviction? In this case, Ms Grey has raised on your behalf the fact that given your previous

1 Tawha v Fish & Game New Zealand [2015] NZHC 1119

unblemished record any conviction will be a serious outcome for you. I accept that the higher Courts have agreed with that proposition in the past. However, as a standalone I doubt that it will carry the day except in very limited circumstances.

[33] The second matter is the question of any impediment to possible travel that you might want to undertake back to the United States. This type of reasoning is put before the Court often in these applications. Here though I rely on the Court of Appeal’s decision in Edwards v R.2 in which the Court of Appeal said that the Court must have regard to a number of factors, but principally would expect that proof of any travel restrictions will require some expert evidence and at very least affidavit evidence.

[34] The sorts of matters that the Courts have entertained in the past are considerations as to whether the conviction, if it is entered, must be one that is disclosed or if there is a discharge that nonetheless the offence still has to be disclosed.

[35] The Court should be informed as to whether, if in consequence of the conviction being entered, you have some prima facie inadmissibility to the country to which you wish to travel and if there is an inadmissibility period, what that period should be. The Court has also concerned itself with whether there are any alternative entry processes or if the processes that might be available would be unreasonably difficult to undertake in the circumstances.

[36] Here, all I have in fact is the prospect that at some future point you might want to return to the States for visiting purposes. In those circumstances the Court simply does not have the sort of information that would allow it to draw any proper inference that that is a real impediment.

[37] There are really, therefore, no particular consequences for you outside that which is normally expected to accompany the consequence of criminal offending that can be put forward in those circumstances.

2 Edwards v R [2015] NZCA 583

[38] I reach the view that the three step process is not in your favour. I do not find that there are circumstances regarding the entry of a conviction against you which are disproportionate to the gravity of your offending.

[39] So I must then move, having refused your s 106 discharge, to consider just what the penalty should be. In this aspect of the case the submissions are relatively wide ranging, because on the one hand Ms Grey on your behalf suggests that this should be regarded in terms of fines at a lower level for the reasons she has put forward, whereas, the Department says that this is a serious matter and that consistent with other fines levied in this area, something in the order of 15 or 20% of the available

$100,000 maximum would be an appropriate starting point.

[40] Other cases have involved different species of wildlife. Some less threatened or in a lower classification in that regard than kea, so I have to pitch the sentence at the level that is consistent and appropriate for the status of this particular species of bird.

[41] These are often a matter of balance Mr Aberson. There is no hard and fast rule about these. I think I have to be influenced by the fact that while the maximum penalty by way of a fine did not increase with the legislative change, the imprisonment possibility did and remarkably so. That I have to take on board in determining the level of sentence.

[42] In submissions, the Department has referred me to various previous cases where, as I have said, there were birds involved where there were perhaps more animals concerned, but on less threatened basis in relation to their vulnerability to extinction.

[43] Mr Hardy says that given all of the circumstances here, I should start somewhere around the $15,000 mark. Give you a credit for your undoubted and good previous character and then give you a discount for your guilty plea which would normally be measured at about 25 percent. I say that because there has been delay here, but I am satisfied from Ms Grey’s submissions that that is not a matter that should penalise you in the circumstances.

[44] However, I do view the matter as being one that was a long way from accident, one that the firing of the firearm was at very least, reckless and that your post-event actions tend to indicate to me that you knew full well that you had done something quite wrong here.

[45] Mr Aberson, I return to my judgment now having had a brief discussion with counsel. The case seems to me to be likely to be, as put to me by Ms Grey, that where you live and in the circumstances in which you live it is highly unlikely you could pay the sort of fine that I would have in mind, even by instalments. The Department’s view is that I could impose a fine and community work, but I think if I reach the view that a fine is impractical then it would be equally impracticable to add it to a sentence of community work.

[46] In the circumstances, having regard to the sort of fine that would be involved here after the various calculations, on the basis of a starting point of $15,000 which I think is the appropriate starting point, you are now sentenced to 200 hours’ community work.

D C Ruth

District Court Judge