Ministry for Primary Industries v Melesala [2019] NZDC 13873 (19 June 2019)

Last Updated: 16 July 2021

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

IN THE DISTRICT COURT AT WELLINGTON I TE KŌTI-Ā-ROHE KI TE WHANGANUI-A-TARA

CRI-2018-085-002139

[2019] NZDC 13873

MINISTRY FOR PRIMARY INDUSTRIES

Prosecutor v

OLA MELESALA Defendant

Hearing:	19 June 2019
Appearances:	L Stothard for the Prosecutor R Bayer for the Defendant
Judgment:	19 June 2019

NOTES OF JUDGE I G MILL ON SENTENCING

[1] Ola Melesala is here for sentence on a charge of intending to obtain a benefit knowing sold fish otherwise in accordance with the Fisheries Act 1996 by selling recreationally caught paua, sea cucumber and crayfish on no more than 34 occasions.

[2] I gave Mr Melesala a sentence indication, which he accepted, back in March of this year and I have a probation report now recommending home detention at an address that has been approved.

[3] So this came about between October 2017 and February 2018 when the Ministry for Primary Industries conducted an investigation targeting illegally harvested paua, sea cucumber and rock lobster in the Wellington district. The

MINISTRY FOR PRIMARY INDUSTRIES v OLA MELESALA [2019] NZDC 13873 [19 June 2019]

defendant was identified as a person of interest in this respect and part of the investigation. He was identified as having offered paua, sea cucumber and crayfish for sale to a [name deleted] and messages were obtained confirming this; these were messages on his phone.

[4] The sales that had been identified through the text messages were 34 in all, in which 4055 paua, 1840 sea cucumber and 57 crayfish were identified for sale. The estimated sale price is over $25,000.

[5] The equipment used will be forfeited but I have now granted an application in respect of the vehicle and contents, which I will refer to later.

[6] The duration of the offending was over a number of months, the scale was significant, and I have had regard to the inherent difficulty in detecting fisheries offences and the need to maintain adequate deterrence against such offences, the object of the legislation in this case being to provide for the utilisation of fisheries resources while ensuring sustainability. Poaching on this scale does affect sustainability and this is particularly so in the Wellington area. The approximate weight of the paua was somewhere between 324 and 547 kilograms.

[7] I was referred to a number of cases at the sentence indication and I will not refer to them again. I had very helpful submissions from both counsel, and I found that the starting point appropriate in that case was one of two years’ imprisonment.

[8] Mr Melesala has a previous conviction for taking undersized paua in 2004 and received a sentence of 350 hours of community work and has also pleaded guilty to a further similar charge in respect of this sentencing.

[9] So with the starting point of two years I raised that by two months, and that is still the case today, notwithstanding that there is one other charge here, and I am allowing 25 percent reduction for the guilty plea in the circumstances of this case.

[10] Mr Melesala has a good reputation in the community and I have a lot of information concerning that, and he seeks a further discount for that. That must be

seen as against of course the extent of his offending and in my view, as I indicated in the sentence indication, an alternative sentence of home detention would be appropriate if recommended.

[11] I now have, having seen it for the first time today, a further probation report which has the residence at [address deleted] as a suitable address for home detention. There is some concern around the defendant’s ability to comply with that sentence, given his activities in the community, including church activities, and it may be that when he is absent as approved during the sentence he will need to be under the supervision of one or several of the people who are supporting him here today.

[12] He is said to be a man of great integrity, dedicated and loving as a father, supporting and providing support for his family and, as far as his role in the church is concerned, uses his time and talents to better the lives of those around him, often doing things for other people way beyond those that would normally be associated with his role, coaching local schools and teams and putting a lot of effort into that. He is known as an honest man with strong morals and standards. Apart from that one previous conviction in respect of paua he has no other, and in my view he should get some credit for his character. But he cannot expect that to continue if he comes back before the Court.

[13] So when I consider the original sentence and deduct 25 percent off for his plea, I would get a sentence of somewhere around eight and a half months’ home detention.

[14] In the circumstances I allow a small deduction from that and you are now convicted of the principal offence, that is the one of selling, and sentenced to seven and a half months’ home detention.

[15] The address is [deleted] and you will be subject to the standard post-detention conditions and the special conditions as set out in the probation report for a period of six months after the expiry of the sentence.

[16] I also grant an application in respect of forfeiture of the vehicle and its contents and I allow the application to prevent that forfeiture.

[17] But I also sentence the defendant to pay $324.45 by tomorrow as reparation to the informant.

[18] Having dealt with that charge in this way, on the other charge you are simply convicted and discharged without further penalty.

[19] You have to remain while the sentence is typed up and served on you and then you will have to go directly to [the home detention address] and wait for the equipment to be installed.

I G Mill

District Court Judge