Department of Conservation v Basil [2018] NZDC 20219 (21 September 2018)

Last Updated: 24 June 2019

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]

IN THE DISTRICT COURT AT THAMES

I TE KŌTI-Ā-ROHE KI PĀRĀWAI

CRI-2018-075-000293 [2018] NZDC 20219

DEPARTMENT OF CONSERVATION

Prosecutor v

[DAVID BASIL]

_Defendant

Hearing:	21 September 2018
Appearances:	K Smith for the Prosecutor H Gladwell for the Defendant
Judgment:	21 September 2018

_{ORAL JUDGMENT OF JUDGE L M BIDOIS}

[1] Mr [Basil] has pleaded not guilty to two charges laid in the alternative

1. Under s 9(1) Marine Mammals Protection Act 1978 of taking a marine mammal namely a sperm whale, otherwise than under the Marine Mammals Protection Act or under a permit granted pursuant to that Act [in December] 2017 at [location deleted].

2. Contravened the restrictions imposed under s 23(1)(a) Marine Mammals Protection Act by taking a marine mammal namely a sperm whale carcass from its natural habitat without first obtaining a permit

to do so from the Minister of Conservation [in December] 2017 at

[location deleted].

[2] Mr [Basil] sought a sentence indication and in particular a s 106 discharge in relation to this matter. That outcome is opposed by the informant.

[3] I was not prepared to give a formal indication on principle given that a s 106 discharge was being sought. It was my view that a defendant seeking such an outcome should be readily prepared to accept responsibility for their conduct, plead guilty, show remorse and then make submissions on the appropriate outcome. The Court however gave a clear indication as to how it viewed the outcome.

[4] The matter was stood down for counsel to take some instructions. When the matter was re-called Mr [Basil] entered a plea of guilty to the s 23(1)(a) charge and the informant offered no evidence in relation to the lead charge under s 9(1). Mr Gladwell renewed his submission that the appropriate outcome should be a s 106 discharge. Mr Smith for the informant maintained that the informant opposed such an outcome and sought a conviction and a monetary penalty.

[5] The factual situation is that [in December] the defendant was alerted by a neighbour to a dead whale floating about 500 metres off [the beach]. The neighbour did so because he knew the defendant was a marine biologist.

[6] Arriving at the scene the defendant discussed the situation with two senior lifeguards who had come out from the beach to investigate. The defendant formed the view that the carcass may drift ashore and decided to tow the whale out to sea. He attached a tow rope to the whale’s tail and then towed the whale approximately

20 kilometres out to [a set of islands]. The trip took approximately six hours the lifeguards accompanying the defendant for a time in their inflatable.

[7] The whale was then submerged and held in place through an anchor so that it did not wash up on the islands and could deteriorate in a natural way within the water.

[8] The defendant took some video footage of the whale and sent it to an associate who was a scientist.

[9] In relation to this matter a raft of documents have been filed for the defendant. It is submitted that a s 106 discharge should be granted as the Court could be satisfied that the consequences of a conviction would be out of all proportion to the gravity of the offence and in particular the offending would impact on reputation and future prospects.

[10] The defence accepted wrongdoing. That is reflected in the plea of guilty.

Mr [Basil] addressed the Court and advanced the reasons he acted in the manner that he did so. His concerns were that a dead whale washing up on [the beach] which is renowned as a tourist spot would have significant impact on the beach and its use at Christmas time when it is populated or frequented by a large number of users. He was also concerned that a dead whale would attract sharks who would feed off the carcass and as a result would heighten the risk to any swimmers.

[11] Mr [Basil] towed the carcass to a place where he considered would not interfere with public use and would not pose any risk. It is alleged that he spoke with the lifeguards who were present and who agreed with his decision and that the video footage was sent to a colleague at the Auckland University who specialised in whales.

[12] The defendant returned to shore in the launch. At no time did he contact the Department of Conservation prior to fixing the tow rope to the whale, whilst on the water and in fact upon returning to shore.

[13] Mr [Basil] said that he did not know that he was required to contact DOC even though he was aware that DOC has a real interest in a sperm whale having died close to New Zealand shores despite DOC being responsible for conservation areas and preserving fish species and the like.

[14] Mr Smith for the informant considered that it was rather incredulous given he was a marine biologist. I must admit I was rather surprised of his ignorance of an obligation to at least contact DOC.

[15] It is to be noted that the permit would have had to come from the Minister of Conservation. That could not have been effected even if the defendant knew that he was required to obtain a permit.

[16] Mr [Basil] claims that he acted in the best interests of the community. He now acknowledges that his decision was wrong, that he made unilateral decisions that deprived DOC of being involved and also depriving local iwi of any cultural access to the carcass if that had been desired. In this case he thought that his colleague who has a close association with DOC would have contacted DOC if there was an obligation and responsibility to do so.

[17] In relation to the consequences of a conviction as stated earlier Mr [Basil] is a marine biologist. The submission is that a conviction would effectively render

Mr [Basil] unemployable in his field as it would suggest some type of abuse or misuse of a marine mammal which would then go to the very heart of Mr [Basil]’s reputation as a credible marine biologist and conservationist. He is close to obtaining a PhD and a [name deleted] who is his PhD supervisor says that his reputation is paramount within academia and research generally and that a conviction would have an impact both nationally and internationally. It would create serious problems for the ability of Mr [Basil] to complete his PhD thesis and move on to a career in research and/or academia. It is submitted that a conviction would impact on his ability to travel to other countries in particular [country deleted] where Mr [Basil] undertakes a significant amount of work.

[18] Mr Gladwell submits that in those circumstances the consequences of a conviction are out of all proportion to the gravity of the offence.

[19] Mr Smith for the informant acknowledged that the alternative charge was laid because if a conviction was entered under the s 9 charge that would have resulted in automatic forfeiture of the vessel involved which was valued at $750,000 and was owned by someone other than the defendant. On the basis of a plea of guilty to the alternative charge the s 9 charge would be withdrawn.

[20] Mr Smith submits that the outcome should be a conviction and a moderate fine being imposed. He submits that this offending is at the lower end of the seriousness scale in terms of this type of offending because the sperm whale was already dead but is not a minor or trivial matter particularly given the defendant’s decision-making process. He on his own account took personal control of the whale carcass which was based on a number of assumptions which could not objectively be sustained. He assumed that it would be washed up on the shore near a popular swimming beach. He assumed that if it did come ashore it would attract sharks endangering beach users and he assumed that the beach would be closed for an extended period. Mr Smith submits that this was not an urgency or emergency situation.

[21] Mr Smith points out that Mr [Basil] did not contact DOC despite being involved in a six hour tow or upon returning to shore. Mr Smith points out that stranded whales are common in New Zealand and that a marine biologist should know that there was a need to contact DOC.

[22] In a statement Mr [Basil] apparently acknowledged that it was important to contact DOC but he made an executive decision at the time to tow the whale without contacting DOC.

[23] Mr Smith submits that he was prioritising his own personal position which included personal videography and research interests over the legitimate interests of iwi and scientific institutions that may have had an interest in the whale carcass.

Mr Smith goes so far as to describe Mr [Basil]’s conduct as having a degree of arrogance about it.

[24] As to the direct or indirect consequences Mr Smith submits that there is no specific information available that satisfies the necessary standard, that we are talking about unknown potential future employers and overseas immigration authorities.

[25] Mr Smith submits that the primary consequence of a conviction asserted by the defendant is the stigma of how others will perceive the defendant in the future which is the consequences of a conviction. Given the nature of the conviction Mr Smith

submits that it would not be difficult for Mr [Basil] to explain the circumstances to any future employer or immigration official.

[26] Mr Smith provides a table showing or outlining the outcomes of a number of prosecutions where there has been a breach of the Marine Mammals Protection Act. All those instances resulted in fines being imposed together with convictions.

[27] When considering a discharge without conviction the Court must work through a three step process being:

(a) An assessment of the gravity of the offence;

(b) Determine the consequences of a conviction; and

(c) Whether the consequences are out of all proportion to the gravity of the offending.

Gravity:

[28] The offence is rare. The informant provided a number of cases but all had a dissection element to them. In all those cases fines were imposed. In this case the offending was spontaneous in that the dead carcass was discovered floating and the defendant was notified because of his marine background.

[29] His decision to tow the carcass out to sea was deliberate and despite having opportunity, failed to notify the authorities. The informant seeks a fine upon conviction.

[30] The gravity is moderate in terms of this type of offending given the carcass was a sperm whale which is of some significance but from an overall criminal perspective the seriousness is relatively low.

Consequences of Conviction:

[31] The defence admit Mr [Basil] will be seriously compromised in terms of his employment opportunity, travel and academic reputation if convicted. The informant submits that there is no satisfactory evidential basis to support the defence claims.

[32] The informant further submits that the concerns raised by the defendant are exaggerated. There is no doubt the defendant is an outstanding young man with his whole life ahead of him, he is a qualified marine biologist, is studying for a PhD and has an international reputation in the marine world.

[33] Although I am not satisfied that conviction would have the same level of impact as claimed, having an unblemished record is important. A conviction whether trivial or not will need to be disclosed to prospective employers, sponsors, conference organisers, border control and the like. It will also need to be explained.

[34] Sometimes it is the maximum penalty that would be the focus of attention not the actual penalty imposed, (eg), some Maori trusts have a policy of not appointing trustees who have committed an imprisonable offence. The index offending carries a maximum of 12 months’ imprisonment.

[35] In Canada excess breath alcohol convictions, which here are considered a traffic offence which capture people from all walks of life, is a barrier to entry into that country. What many people do not realise is the very fact of a conviction carries with it a stigma not necessarily from the ignorant but from a personal perspective. Being labelled a criminal even by yourself can have a significant emotional impact. I am of the view that there are direct consequences of a conviction based on the information provided.

Proportionality:

[36] Career and travel aspirations will be impacted. With some effort and compassion by others the circumstances could be explained and understood, reducing the impact. It will cost time and effort and will cause embarrassment. Is it really

necessary to put a high achieving first offender who has pleaded guilty, accepts responsibility and is remorseful to that trouble? I think not.

[37] In my view the consequences of a conviction will be out of all proportion to the direct and indirect consequences.

Discretion

[38] Having reached that determination I need to decide whether I exercise my discretion to in fact discharge without conviction.

[39] Reference has been made to two cases in particular. Tupu v Police1 involved injuring with intent and Rodrico v Police2 involved drug dealing where discharges without conviction were entered which were for more serious offending.

[40] In this case there are strong mitigating factors already referred to. The defendant has been directed to pay and will pay $2000 to a marine reserve trust and

$500 towards the cost prosecution. That will hold the defendant accountable for his offending which will be a one-off occurrence.

[41] Accordingly, I am prepared to grant a discharge without conviction. I order

$500 costs of prosecution.

L M Bidois

_{District Court Judge}

1 Tupu v Police [2014] NZHC 743.

2 Rodrigo v Police [2014] NZCA 68.