Ministry of Primary Industries v Uerata [2017] NZDC 9795 (11 May 2017)

Last Updated: 17 October 2017

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT WHANGAREI

CRI-2017-088-000346 [2017] NZDC 9795

MINISTRY OF PRIMARY INDUSTRIES

Prosecutor

v

DOUGLAS PHILLIP UERATA REO RANGIPOHEWA UERATA Defendants

Hearing:	11 May 2017
Appearances:	P Woods for the Prosecutor K Johnson for the Defendant D Uerata J Young for the Defendant R Uerata
Judgment:	11 May 2017

_{NOTES OF JUDGE D J McDONALD ON SENTENCING}

[1] Reo Uerata and Mr Douglas Uerata, you have pleaded guilty to a charge laid under s 233 Fisheries Act 1996 that you obtained a benefit by knowingly dealing with fish, namely kina, otherwise in accordance with the Fisheries Act 1996. It carries a maximum penalty of five years’ imprisonment and/or a fine not exceeding

$250,000, it is therefore a serious offence.

[2] The Fisheries Act and regulations were passed by Parliament in an attempt to control those persons using the fisheries resources in New Zealand fishing waters. The whole purpose of the Fisheries Act is to ensure sustainability of the fishery, in part that is by introducing a quota management system for commercial fishermen. That quota management system sets limits on the number of fish that can be taken in

_{any one fishing year in the 200 nautical mile exclusion economic zone.}

MINISTRY OF PRIMARY INDUSTRIES v DOUGLAS PHILLIP UERATA [2017] NZDC 9795 [11 May 2017]

[3] Since the introduction of the quota management system, there has been a serious problem with the unlawful taking of seafood to feed the black market trade, particularly in the Auckland area. Although the kina fishery appears at this stage to be in a healthy state, any illegal commercial harvesting outside the quota management system has a direct impact upon the Ministry’s ability to accurately assess sold levels.

[4] In February 2015 through to December 2015, the Ministry of Primary Industries ran an investigation codenamed Operation Gull into activity involving black market dealing in kina and paua in the Auckland area. Information received indicated that you two were taking large quantities of kina in the Northland area, packaging it and then transporting it to Auckland for sale.

[5] During the course of the investigation, cellphone numbers, call data and text messaging was obtained from telecommunication providers. Analysis of that data identified you two as having made two trips to Auckland during the period of

1 February 2015 to 31 March 2015 where you sold illegally taken kina to another defendant, Ms Davis. You used your cellphone both by text messaging and voice call to arrange transactions.

[6] Between 1 February 2015 and 7 February 2015, the two of you went diving in Northland and took in excess of 14 sacks of kina. On or about 11 February 2015, the two of you travelled to Auckland with 53 tubs or punnetts of processed kina and sold them to Ms Davis. Over the period of the next two days, she sold the kina to various associates, charged $12 a punnett, total value $633.

[7] Between 16 February 2015 and 20 February 2015, you again this time took an unknown quantity of kina from Northland waters. Again it was processed, taken to Auckland and sold in the same way. When you were spoken to, you were asked for an explanation. Douglas, you said nothing. Reo, you said that yes you had sold it, did not make a lot of money out of it and it was not really worth it.

[8] I take into account the purposes and principles of sentencing, to hold you accountable, to deter your conduct, both under the Sentencing Act 2002 and under

the Fisheries Act. I have regard to s 254 Fisheries Act which tells Courts that if any person is convicted of an offence against this Act, the Court shall in imposing sentence take into account the purposes of this Act and shall have regard to the difficulties inherent in detecting fisheries offences and the need to maintain adequate deterrents against the commission of such offences. Of course I must impose the least restrictive.

[9] This was serious offending, you took kina for the sole purpose of selling it outside the quote management system. I take into account the following factors:

(a) The value of the kina, hard to determine the actual amount but it appears to be about $1300.

(b) The number of times you took it down to Auckland, which was twice.

(c) Premeditation, took the kina from waters in Northland and then transported it to Auckland for sale, packaged it up.

(d) Even small scale selling on the black market can and in my view does impact upon the whole quota system.

(e) I must have regard, five, to the maximum of five years’ imprisonment or $250,000 fine. Parliament must have intended in setting those maximum as high as they did to ensure that people did not commit crimes in the way that you have and it is because what in effect you have done taking these kina from our waters is to steal them from the national resource.

[10] Mr Woods submitted a fine of $4000 to $5000 is appropriate, Ms Young agrees that that should be the starting point, but after taking into account a 25 percent discount for your pleas and lack of previous convictions, somewhat lower. I had considered sentencing you to a term of community work to give something back to the community, however, one of you has health problems which would make that

extremely difficult, the other has now just got work and would have work difficulties.

[11] Your culpability is higher than the person in Auckland that you sold it to, the starting point for sentencing for her was $4500, ending at $3000. I accept Mr Woods’ submission on behalf of the Ministry that your culpability is higher. Taking all those matters into account, on each one of these charges you will be convicted and fined $4000, together with $130 in Court costs.

D J McDonald

District Court Judge