Ministry for Primary Industries v MacLardy Fishing Limited [2018] NZDC 21898 (9 October 2018)

Last Updated: 22 March 2019

IN THE DISTRICT COURT AT THAMES I TE KŌTI-Ā-ROHE KI PĀRĀWAI

CRI-2018-075-000292 CRI-2018-075-000291

[2018] NZDC 21898

MINISTRY FOR PRIMARY INDUSTRIES

Prosecutor v

MACLARDY FISHING LIMITED Defendant

Hearing:	9 October 2018
Appearances:	M Dunn for the Applicant K Proctor-Western
Judgment:	9 October 2018

NOTES OF JUDGE K B F SAUNDERS ON SENTENCING

[1] MacLardy Fishing Limited is for sentence, having pleaded guilty to one charge under the Fisheries Act 1996 of possessing 483 kilograms of rock lobster, which had not been recorded in accordance with the Fisheries regulations.

[2] Mr MacLardy has been charged as a director of the company on the basis that he should have known that the offence was being committed and failed to take all reasonable steps to prevent it. The offence is a strict liability offence and carries a maximum penalty in terms of the company of a fine of $250,000 and for Mr MacLardy a similarly financial penalty and/or a community-based sentence. Significantly, forfeiture applies to the vessel used in the commission of the offence and proceeds from sale of the catch.

MINISTRY FOR PRIMARY INDUSTRIES v MACLARDY FISHING LIMITED [2018] NZDC 21898 [9

October 2018]

[3] In terms of the offending, the summary of facts records that on 9 January 2018 fishery officers boarded the commercial cray fishing vessel, Smooth Talker, which is a rock lobster fishing vessel and the permit holder is MacLardy Fishing Limited. As I have already said, Mr MacLardy, the defendant, is a director of that company and he is the skipper of the vessel. He is responsible for completing fishing returns for the company and is the sole authorised user for the fishing return completion process Cedric. At the time in January 2018 the company was required to record the taking of the rock lobster a number of ways, in either a catch effort landing return or a fish catch report as required by the Fisheries regulations and the company had been electing to use the catch effort landing return through the electronic data transfer process of Cedric.

[4] The CLR, as it is abbreviated to, is required to be completed for each day’s fishing and in the course of the routine inspection it was found that the defendant, Mr MacLardy, had not completed the required catch reports for the vessel’s fishing activity since 21 December 2017. Between 21 December 2017 and 9 January 2018 there had been nine separate occasions on which the vessel had caught rock lobster and no return had been completed. In total, over the nine trips, 483 kilograms of spiny rock lobster was taken. There was a power outage at the company’s holding tank facility in early January and as a result of that 220 kilograms of the catch died, but the remaining crayfish was seized and disposed of by the Ministry for $24,130.90. The vessel, Smooth Talker, is valued at $100,000. Mr MacLardy has not previously appeared and since the offending has taken steps to ensure there is no repeat.

[5] Mr Dunn, on behalf of the prosecution, submits a starting point of a fine for the company is $15,000. Two cases have been referred to by the prosecution in support of the identified starting point. For Mr MacLardy he submits a fine of $5,000. There are submissions on behalf of the defence that the starting point for a fine should be having regard to the infringement notice procedure, which allows for a $400 infringement notice. It is the prosecution’s submission that that would have been an inadequate response to the culpability present in this case.

[6] The matter that I have heard from counsel at more length today, relates to the automatic forfeiture of the proceeds of sale of the fish and indeed the vessel. In terms

of the Act, the proceeds from the sale of the fish and indeed any fish, or had there been any and the property used in the commission of the offence is forfeit to the Crown under s 255C Fisheries Act 1996, unless there are special reasons relating to the offence.

[7] In terms of what amounts to special reasons, I will turn to that in a moment, but it is the prosecution’s submission that this is a significant unrecorded quantity of a high value species. It is pointed out that if nearly half of the seized rock lobster had not died at the on shore holding facility prior to inspection, the total quantity of unrecorded rock lobster would have been worth over $40,000. The prosecution points out that the aggravating factors of the offending are that significant quantity of unrecorded rock lobster and the period of time; the nine fishing trips over two weeks. They, it is said, are the aggravating factors that are relevant and need to be considered in terms also of the policy inherent in the Fisheries Act for offending, the need for general deterrence, the need of specific deterrence, which it is accepted in this case does not apply, and the policy behind the Act, which is to ensure the sustainability of fishing in this country and to maintain adequate deterrents within the quota system.

[8] It is the prosecution’s submission that the reasons put forward are not special reasons relating to the offence, but it is now said on behalf of the prosecution that if forfeiture is made of the vessel, then in terms of any application for relief, the prosecution would agree to a $10,000 redemption fee so that the vessel would not ultimately be forfeit, but does continue to seek forfeiture of the proceeds of sale.

[9] All mitigating factors are accepted, which include the fact that Mr MacLardy himself is a first offender, he has support in the community and there are references and so on that I have referred to.

[10] On behalf of both defendants, it is submitted that this is an unusual situation because the offending occurred during the period when there was an anomaly in the legislation and that meant that for a period of time, from October 2017 through to August 2018, the ability to charge a lesser offence with lesser consequences was not available to the prosecution. That goes to the heart of the discretion to prosecute and I need to say now that there is nothing before me notwithstanding that anomaly that

would persuade me that the decision to prosecute under the section that the company and Mr MacLardy have been charged was anything other than exercised in an appropriate manner.

[11] On behalf of the defence, it is submitted that had the alternative means of prosecution been available then it was open to the prosecution to have charged under either the infringement process or under the regulations, and essentially the effect of that would have been that the vessel would not have been automatically subject to forfeiture. It is accepted that the proceeds would still be subject to forfeiture had the charges been laid under the regulations, unless there were special reasons, but not the vessel itself.

[12] I do not accept counsel’s submission that had the non-compliance occurred during the period of the anomaly in the legislation it would have resulted in the infringement process being used for the offending. Counsel has tied the infringement fee of $400 into her submission that a cumulative fine of around $3500 would be the appropriate response in terms of culpability, arguing that the offending falls within the lowest end of the scale and hierarchy of Fisheries offending.

[13] Sentencing principles are referred to by counsel in her submissions and in terms of the principles that I do need to be guided by for offending under the Fisheries Act, as well as the well-known s 7 and 8 Sentencing Act 2002 principles, are those matters unique to the Fisheries Act, which includes such matters as the need to preserve New Zealand’s fishery resources and general deterrence. Matters going to the heart of culpability include looking at the sophistication of the offending, the degree of premeditation, what was the motive behind the offending, the nature, extent, duration and the availability of any market for the illegally taken fish, are all matters that I need to take into account. I should say now that there is no suggestion that the offending in this case was committed because of any personal greed or a commercial gain.

[14] It is clear to me, and I do not see the prosecution to take issue with this, that Mr MacLardy himself at the time of the offending was under significant personal stress and I accept the reasons that are outlined in his affidavit culminating in the fact

that he was tired and exhausted and that is the explanation for the offending. It does provide an explanation, but of course it does not excuse it. Matters that are significant include the birth of a son, he had been working 28 out of 30 days, 10 to 12 hour days, there was a divorce, perhaps an acrimonious divorce, in the background that was resulting in stress and depression. Added to that is the loss of the fish on 2 January that I have already referred to. All of those reasons are personal to Mr MacLardy. I accept that they were present at the time and as I have said, they do not excuse the offending, but they do put it in some context. I have already referred to the fact that he is a person otherwise of good character, a first offender, and of course has pleaded guilty.

[15] It is the defence’s submission that I can look at the combination of the personal circumstances, together with the anomaly in the legislation, which it is said has restricted the discretion to prosecute and from there come to a determination that there are indeed special reasons relating to the offence. I do not accept that the personal circumstances of Mr MacLardy are in any way special reasons relating to the offence and that must be so, but I do accept that it is something that I can look at in the round of reasons, but in and of itself it is not sufficient in terms of law.

[16] Both counsel have referred to authorities in terms of where culpability sits and indeed the discretion to prosecute. I have been guided by the authorities that this is a matter where ultimately culpability is this: the offending was not driven by commercial gain and I am conscious it is strict liability offending, but this was not a one-off isolated failure to record, complete a return. Mr MacLardy and indeed the company was in the possession of a significant quantity of unrecorded rock lobster and there is nothing before me from which I could come to a conclusion that it would not have been a source of substantial income for Mr MacLardy and the company.

[17] The aggravating factors are those identified by the prosecution. That is the amount of unrecorded fish and the period of time that the offending occurred. It is significant in my view that it involved nine separate fishing trips over a two-week period, so that while the stresses and strains of life were impacting on Mr MacLardy, at some point he needed to have turned his mind to the reality of what he was doing in terms of obtaining an income.

[18] Conversely, there are substantial mitigating factors. The purpose of sentencing is to hold the defendant accountable and I find general deterrence is to the fore and that must be so to accord with the purpose of the Fisheries Act, which is to ensure the sustainability of fisheries primarily through a quota system. In terms of culpability, I am satisfied it is relatively low level, but Mr MacLardy is and was the company and he ought to have ensured that reporting obligations were completed.

[19] Taking into account all that has been said, both orally and in writing and together with the authorities that have been referred to, I have come to the conclusion that the starting point for the company is a fine of $8000. A starting point for Mr MacLardy is a fine of $3000. I give to both the company and to Mr MacLardy a full 25 percent credit for a guilty plea. That in itself would reduce the fine for the company to $6000 and for Mr MacLardy a fine of $2250. I am not persuaded that there are any other factors that would warrant any further reduction.

[20] As to non-forfeiture and whether there are special reasons relating to the offence. The purpose of forfeiture is a deterrent, it must be, and that is why the law says it is automatic, unless there are special reasons relating to the offence. It is a real penalty and it is easy to understand why, for example, the sale of proceeds of fish unlawfully obtained should be forfeit. It is perhaps more problematic with vessels and a person’s income.

[21] As I have already said, I can only make an order for non-forfeiture of the vessel and the proceeds of sale if I find there are special reasons. A special reason is one not found in the common run of cases and there is no dispute between counsel as to what does amount to special reasons and indeed the appropriate test that I need to apply, which is that I need to look at the offence in the round to determine whether there are matters singularly or in combination that place the offending out of the ordinary run of cases as to be special. I need to say that I am also conscious of what has been said in the past that it would be wrong to, in effect, endeavour to manufacture the finding of special circumstances because of the personal circumstances that I am satisfied Mr MacLardy was in during the relevant period.

[22] There is some attraction in the defence submission relating to the anomaly in the legislation and as I have said, that is accepted by the prosecution, but the exercise of a discretion to prosecute must always be with the prosecuting authority. Mr Dunn has argued that because of the quantity of the unreported catch, it was always going to be a prosecution of the nature that has resulted in both Mr MacLardy and the company appearing before me. It was never going to be a situation where the prosecution accepted it was at a lower level so as to warrant an offence of a lesser kind. Indeed I am told from the bar and while this is not evidence before me that the Fisheries officer, who has some 30 years’ experience who boarded the vessel, has not come across a more sustained case of non-reporting throughout his time as an officer. I am also reminded that the cray fishery is in trouble.

[23] This is not a situation where Mr MacLardy and the company has been charged because they have simply failed in a one-off situation to fill in a form. The quantity of fish and the number of trips persuades me that there is no reason to go behind the exercise of the discretion to prosecute. That means that while I may have sympathy for the defence submission that non-forfeiture of both proceeds and the vessel be made, I am simply not persuaded that in combination there are special reasons relating to the offence. I am, however, very conscious of the prosecution’s indication today that it would agree to the $10,000 redemption fee in terms of relief from forfeiture.

[24] Turning then to the sentence. I am not persuaded that factors relating to forfeiture and the costs to either Mr MacLardy or to the company, are matters that properly go to reduce the end fine. Accordingly, it is my decision that MacLardy Fishing Limited is fined $6000 and Mr MacLardy is convicted and fined

$2250. I also order forfeiture of the vessel and $24,130.90 which is the proceeds from the sale of the rock lobster that had survived.

[25] If the company or Mr MacLardy need time to pay the fine then that is certainly something that I will allow, arrangements to pay. It is a fine in total of just over $8000.

K B F Saunders District Court Judge