Ministry for Primary Industries v Sealord Group Ltd [2020] NZDC 14793 (24 July 2020)

Last Updated: 4 April 2022

IN THE DISTRICT COURT AT NELSON I TE KŌTI-Ā-ROHE KI WHAKATŪ

CRI-2019-042-001912

[2020] NZDC 14793

MINISTRY FOR PRIMARY INDUSTRIES

Prosecutor v

SEALORD GROUP LIMITED THOMAS ADRIAN POPE BOLEN TERRIC GOOMES Defendants

Hearing:	24 July 2020
Appearances:	J Wotton for the Prosecutor K Proctor-Western and K van Wijngaarden for the Defendants
Judgment:	24 July 2020

NOTES OF JUDGE D C RUTH ON SENTENCING

[1] Before me today is a sentencing exercise regarding a case taken by the Ministry for Primary Industries against three separate entities, firstly, Sealord Group Limited, which I will refer throughout the course of this hearing to Sealord for brevity, a Mr Goomes and a Mr Pope.

[2] They pleaded guilty to charges laid under the Fisheries (Benthic Protection Areas) Regulations 2007 on a representative basis that between 26 October 2018 and 28 October 2018 that at Mid Chatham Rise Benthic Protection Area they did use a trawl net in the lower buffer zone of the Mid Chatham Rise Benthic Protection Area, and for Mr Goomes and Mr Pope they refer to the position that each of those men

MINISTRY FOR PRIMARY INDUSTRIES v SEALORD GROUP LIMITED [2020] NZDC 14793 [24 July 2020]

respectively took as master or being in control of a vessel known as the Ocean Dawn, for Mr Goomes on three occasions during that period, and Mr Pope on two occasions in respect of that timeframe. In terms of Sealord, they have also pleaded guilty, their liability arising by operation of the Act, and they pleaded guilty at an earlier period.

[3] On each of the three occasions convictions were not entered because there has been signalled the intention to in fact seek discharge without conviction. That application is clearly now limited to the case of Sealord, and so it has been proper today, and I record that I have in fact entered convictions, for both Messrs Goomes and Pope.

[4] Further, by way of preliminary discussion, I want to make it clear that I have had to consider a large body of material, much of it by way of affidavit. There have been a large number of affidavits filed by the defence, and at least one by the prosecution. Each of those affidavits I accept are by persons by and large who are knowledgeable in the fishing industry. There are some other affidavits which relate more to the commercial position taken in the industry by Sealord and are pertinent to considerations which would arise under s 107 Sentencing Act 2002 in the context of an application to discharge without conviction.

[5] Each of the affidavits filed, both defence and prosecution, contain a degree of opinion evidence. In my view, none of the deponents can be properly regarded as experts. None of them refers to the High Court Rules regarding expert evidence, let alone undertakes to comply with them. However, rather than simply consider the affidavit material before me as being inadmissible, which is one of the positions I could have taken, I instead intend to use the affidavit material over and above the opinions for such assistance as it may be to me in the sentencing exercise generally. The opinions expressed by any of the deponents will be ignored by me except to the extent that I may share that opinion as a result of my own analysis.

[6] The process seems to me to be best conducted by, firstly, deciding in terms of Sealord whether or not there are special reasons here not to forfeit. The conviction has still not been entered for Sealord because if I find that there should be non-forfeiture, then the way would be clear for the Court to consider a discharge

without conviction. If, however, there is to be forfeiture, then such an application is precluded. This is set out quite simply in s 255E(4) of the Act, and so today it seems to me that the first thing that ought to happen is that I review the question of forfeiture.

[7] Forfeiture is required upon conviction unless the Court, for special reasons relating to the offence, comes to the view that that should not occur and, therefore, I have to look at the offending in the round here to determine whether it is a proper case for the application of special reasons.

[8] It would be appropriate in relation to that exercise to read the summary of facts, notwithstanding that it applies at least in part of course, if not indeed principally, to the two citizens rather than Sealord. And so the summary tells me that:

In 2007 in response to a fishing industry proposal, the Government closed 17 separate Benthic Protection Areas, or BPAs, within New Zealand’s exclusive economic zone, or EEZ, comprising 1.1 million square kilometres to dredging and bottom trawling. The purpose of the closures is to protect vulnerable benthic (seafloor) biodiversity.

The Fisheries (Benthic Protection Areas) Regulations 2007, hereafter referred to as the BPA Regulations, make it illegal to trawl within 100 metres above the sea bed. Midwater trawling is allowed above that level but subject to strict conditions so as to preclude contact with, and therefore damage to, the benthic environment.

The defendant Sealord is the operator of the commercial fishing vessel Ocean Dawn and holds a fishing permit for that vessel. On the 22nd of September 2018 the Ocean Dawn left Port Nelson on a fishing trip to Chatham Rise approximately 200 nautical miles east of Christchurch within New Zealand’s EEZ. On this trip the Ocean Dawn fished for hoki by way of bottom trawling. The defendant Mr Goomes was the master of the vessel and the defendant Mr Pope was the first mate. Both were employees of the defendant company.

On the 26th of October 2018 while skippered by Mr Goomes, the Ocean Dawn towed a precision bottom trawl net from approximately 3.1 nautical metres outside of the Mid Chatham Rise Benthic Protection Area into the BPA. The duration of the trawl was approximately three hours of which at least two and one quarter hours was spent inside the BPA. The vessel was about 9.3 nautical miles inside the BPA when the net was hauled. Nine thousand kilograms of fish were caught as a result of that trawl. Approximately 100 kilograms of sponges were recorded as bycatch.

On the 27th of October 2018 while Mr Pope was in charge of the vessel, the Ocean Dawn was approximately 15 nautical miles inside the Mid Chatham Rise BPA when it set a bottom trawl net. The trawl last around five hours with the last hour of the tow being outside of the BPA. The net was hauled

approximately four nautical miles outside the BPA. The catch for that trawl was also 9000 kilograms with 400 kilograms of sponges recorded as bycatch.

At around 2.30 am on the 28th of October 2018 while skipped by Mr Pope, the Ocean Dawn set a bottom trawl net when it was approximately 15 nautical miles inside the BPA. The net was hauled approximately 2.2 nautical miles outside the BPA at 7.00 am. The vessel was bottom trawling within the BPA for at least four hours. This bottom trawl resulted in 7000 kilograms of fish being caught and 400 kilograms of sponges.

At around 9.00 am on the 28th of October while skippered by Mr Goomes, the

Ocean Dawn started a bottom trawl outside the BPA. Sometime between

2.00 pm and 3.00 pm the vessel entered the Mid Chatham Rise BPA while still towing the bottom trawl net. The bottom trawl lasted around seven hours of which approximately one and a half hours occurred within the BPA. The net was hauled just after 4.00 pm when the vessel was approximately six nautical miles inside the BPA. The catch from this event was 10,000 kilograms of fish and 200 kilograms of sponges.

Around 5.30 pm on the 28th of October while skippered by Mr Goomes, the Ocean Dawn set a bottom trawl net when it was around three nautical miles inside the BPA. Two and a half hours later the net was hauled shortly before

8.00 pm when it was approximately seven nautical miles inside the BPA with a four nautical miles tow in total. Mr Goomes realised he was bottom trawling in a BPA so he retrieved the net early and advised Sealord what had happened. That trawl resulted in a fish catch of 5000 kilograms and 200 kilograms of sponges were recorded as bycatch.

The offending was detected by MPI on the 29th of October 2018. Also on that date Sealord self-reported to the Nelson MPI Fisheries Office that the Ocean Dawn had inadvertently trawled in the Mid Chatham Rise BPA.

Four of the five tows took place partially inside the BPA and the final tow wholly inside. For each of the tows it was recorded the ground rope depth of the trawl net and the bottom depth as being the same indicating that the trawl net was hard on the sea bed and clearly within the lower buffer zone of 50 metres from the bottom. The quantity of sponges reported as being caught confirms this as sponges live on the sea-floor.

It should be noted that the catch efficiency for sponges is very low and a reported catch of 400 kilograms of sponges indicates that a substantially larger quantity, perhaps up to tenfold or more, could in fact have been damaged or destroyed.

In explanation for the offending both of the men, Goomes and Pope, said that they knew about the Mid Chatham Rise BPA but they were unaware that they were in the BPA as they had mistaken the boundaries of the BPA contained within the vessel’s SeaPlot navigation system for track lines as both were marked in a similar colour.

In explanation Sealord provided full details of its compliance management systems including master’s briefing notes and the SeaPlot navigational system.

A total of approximately 40,000 kilograms of fish was caught during the five trawls some of which was caught during trawling inside the BPA. The total amount of fish taken during the five trawls was seized by the Ministry and sold for the sum of $112,294.13.

The defendant Sealord has no record of previous fisheries offending. Mr Goomes has not previously appeared before the Court. Mr Pope has no record of previous fisheries offending.

It is noted all defendants have co-operated fully with the Ministry’s enquiries into this offending.

[9] In terms of sentencing generally are matters that are to be taken into account as set out in s 254 Fisheries Act 1996 and mandates the Court shall take into account when imposing sentence the following matters. Firstly, the difficulties inherent in detecting fisheries offences and, secondly, the need to maintain adequate deterrence against the commission of such offences.

[10] The purpose of the Act under s 8 is to:

Provide for the utilisation of fisheries resources while ensuring sustainability. Ensuring sustainability means maintaining the potential of fisheries resources to meet the reasonably foreseeable needs of future generations; and avoiding, remedying, or mitigating any adverse effects of fishing on the aquatic environment. Utilisation means conserving, using, enhancing, and developing fisheries resources to enable people to provide for their social, economic, and cultural well-being.

Impact of the offending

[11] BPAs arose at the instigation of the New Zealand fishing industry out of concerns about the adverse impacts of bottom trawling on the benthic environment. Bottom trawling can remove some or all of the benthic fauna, especially epifauna like corals and sponges, resulting in loss or degradation of habitat. The impact on the marine ecosystem can be wider than the impact on epifauna because epifauna frequently provide habitat for other species including fish.

[12] The 17 BPAs were established in 2007 to set aside large protected areas encompassing a representative range of the sea bed biodiversity within New Zealand’s EEZ. A key criterion for selection was including areas that were largely unfished or otherwise impacted by human activity. The closed areas cover around 30 percent of

the EEZ constituting one of the largest protected areas in the world. The BPAs are significant for New Zealand’s conservation obligations internationally.

[13] Species such as corals and sponges are highly vulnerable to damage caused by bottom fishing, especially bottom trawling where heavy fishing gear is dragged over the sea bed. Some deep-sea invertebrates are exceptionally long lived and grow extremely slowly. The generation time increases with increasing depths, thus the recovery capacity of the deep-sea benthos can be highly limited and prolonged. Scientists predict it could take between decades to centuries after fishing has ceased for some deep-sea benthic environments to recover. Recent research in New Zealand and Australia has found that previously heavily trawled deep-sea seamounts show little to no signs of recovery after being closed for 15 years.

[14] Upon conviction, if conviction was to follow, then the proceeds of the fish and any property used in the commission of the offence are forfeit unless there are special reasons relating to the offence and that order then can be made. Where forfeit property has an estimated value of more than $200, the Ministry is required to advertise the forfeiture by public notice within 10 days advising of the right of any interested party to apply to the Court for relief. Any party with an interest in the forfeit property may apply to the Court within 35 working days for relief from the effect of forfeiture. At the time of conviction it is incumbent upon the Court to determine what, if anything, is forfeit to the Crown, and in this case the Court is invited to determine that both the proceeds of sale to which I have referred, and the vessel Ocean Dawn, are properly to be forfeited. That of course is the very matter that I must now embark upon in terms of considering the competing cases.

[15] The position taken by the defence here and covered in written submissions and accompanied by oral submissions today is that when I look at all of the factors relating to the offence that there are special circumstances here, special reasons, not to forfeit. They relate in terms of counsel’s submissions to the steps taken by Sealord to educate and inform and update their skippers and sea crews, that they undertake a responsibility in the industry of which they are very proud and rightly so.

[16] The situation that is put by the defence is that these were matters that related to situational unawareness and perhaps task fixation that were really outside the matters that Sealord had put in place and that anything that may have been put into effect in the aftermath of all this are really to be viewed as things that can only arise with hindsight.

[17] Both of the fishermen concerned were quite experienced in terms of their various roles and the defence submission is that this was entirely unintentional, certainly on the part of Sealord, and that it had done everything that could be done to ensure that mistakes of this nature were as far as is humanly possible avoided. The defence has today referred in particular to the affidavit sworn and filed by Geoff Clark who takes responsibility for much of the educational aspects of these fisherpersons and I accept all of that. I have read his affidavit very carefully.

[18] One of the matters raised by the defence is the stature of this company in terms of not only New Zealand but also internationally and I have previously made the comment to counsel that the flipside of that of course is that the more prominent one may be in such an industry the higher will be the expectation that there is absolute compliance certainly as far as technology and practical considerations will allow in terms of how it operates given that there are areas which are no-go areas for fishing or for fishing of a particular type.

[19] The situation for Sealord that is put forward is that there is not to be imposed on Sealord some counsel of perfection and I accept that. What I have to determine is to ask whether there were matters that could have been put into place that were not that may have lessened the likelihood, if not extinguishing the likelihood, of the events which in fact happened out in the BPA during this weekend.

[20] The position that the defence take is that Sealord had provided the various boundaries marked on the SeaPlot in a way which was adequate for the fishermen to be able to undertake properly their respective obligations, and it is said that only in hindsight has it occurred to Sealord and others under its umbrella no doubt that perhaps better colours could be used on the plot and that leaving one person zoomed out, as it were, was a way to ensure that situational unawareness in particular could be avoided.

[21] There has been talk about other more technical availability and I accept from counsel that some of that may not have been absolutely available at the time and I do not want to place too much emphasis upon technology here because it seems to me the matter is more easily resolved having regard to what I would regard as common sense low-tech matters.

[22] It is suggested by counsel that this was not a prolonged or premeditated pattern of conduct, nor was it repeated over a period of weeks or months. However, as the summary of facts, which is an agreed summary, sets out, this was over a period of time of a weekend, there were five trawls in total, three at the hands of one and two at the hands of the other, and it is also suggested that there was some aspect of distraction by one of these men who had perhaps some family difficulties that may have diverted his attention.

[23] In the course of the submissions, Ms Proctor-Western referred me to a colour photo or colour print of the actual plot and says that it was readily able to be ascertained which line was which. The difficulty with that submission is that Mr Goomes himself does not accept that proposition. In his interview, when asked about such matters he referred to a “vague little green line” marking the BPA. Also, and I think this is important, he said that if everything had been such as it should have been, he would not be then speaking to a fisheries investigator. Some of that is confirmed in one of the defence affidavits sworn by Captain Burfitt who, on a number of occasions, talks about situational unawareness, task fixation, as being not uncommon factors leading to mistakes being made.

[24] In terms of training, Ms Proctor-Western says that the training put into place by Sealord is far in excess of most others in the industry. Against that, Mr Goomes said that he did recall having some training, although he thought it had been some time ago and could not remember the exact details of it. I am aware that in the aftermath of all this, the briefing documents that are used by the crews have been amended in such a way so as to again try and avoid any repeat offending.

[25] I accept as a matter of fact that there have been steps taken really to rectify what has happened here but that is not, in my view, something that I can place too

much weight on because I am enjoined to look at the circumstances of this offence. What happened in the aftermath is, in my view, something that would be relevant should sentencing be required to ameliorate any otherwise appropriate sentence, in particular, for Sealord.

[26] Ms Proctor-Western says that I should look at a number of circumstances that might in combination become a special reason not to forfeit, and in her written submissions at page 43 she refers to a number of possibilities in that regard. She talks, as I have talked now, about the circumstances relating to the fishing operation. Secondly, that there was an aspect of acting on instructions, that is to say depending on who was in control of the ship one person was acting on the instructions of the other. Task fixation, which I have referred to. The immediate cessation and self-detection of the offending. Lack of intent to offend. That there was a single mistake. That there was immediate reporting to the authorities and loss of situational awareness.

[27] In terms of how the prosecution views these various matters, the examples which could in combination in the submission of the defence become a special reason for non-forfeiture are addressed in their submissions. One of the primary submissions that the prosecution makes is that one has to be careful about having regard to factors referable to the 1983 Act as it was amended or re-enacted in 1996. Ms Wotton says this because there are a number of cases referred to in defence submissions which come from the previous Act in 1983. Ms Proctor-Western says that in effect it will not make a huge difference because particularly matters relating to finding special reasons are not dissimilar.

[28] Now in terms of the prosecution position, Ms Wotton says that the statutory test, which is not in dispute, is that there must be special reasons, and it has been accepted in many of the Court’s decisions that forfeiture is indeed a harsh, drastic, draconian and a blunt instrument. This has been said on any number of occasions, but the reality is that Parliament has made it clear that this is an additional penalty and it must arise from a conviction regardless of the degree of culpability or value of the property unless those special reasons can be found. It is of course incumbent upon the

Court not to manufacture special reasons just to avoid what might be seen to be a disproportionate or unfair outcome.

[29] In the case of Basile v Atwill to which Ms Proctor-Western also referred it is said that:1

In the statutory context “special” is a limiting adjective. A special reason is one that is not found in the common run of cases. While not necessarily being categorised as “exceptional” or “extraordinary”, it is one that may properly be characterised as not ordinary or common or usual. Section 107B(2) does not employ and contrast both expressions “special reasons relating to the offence” and “special reasons relating to the offender”. Some considerations such as those relating to intent may affect both the offence and the offender. Those expressions are not mutually exclusive and where only one is used there is some room for overlap. In essence, to come within the exceptions (of the statutory provision as it was then) the special reasons must relate to the facts involved in or connected with the commission of the offence in the particular case.

[30] Further, it was said by the Court of Appeal in the decision of Croad v Hughes

by Gault J in the Court of Appeal:2

We do not think it necessary to engage in an over-analysis of what is a straight forward statutory test. The requirement clearly is for the Court to look at the offence or offences in the round and to determine whether there are matters that place the offending out of the ordinary run of cases so as to be categorised as special and for that reason call for the order arresting the statutory consequence.

The circumstances of the offender except insofar as they bear upon the offence are not material. That the consequence of refusing the order is harsh must be accepted as legislative policy.

[31] And so having regard to the matters that have been put forward by the defence as being either individually special or in combination so, the prosecution has set out its view of the circumstances relating to this operation. Here the prosecution says that the skipper was perhaps preoccupied or distracted with personal issues back on shore and may indeed have been suffering some fatigue given that it was a long fishing trip. The prosecution submission is that that could not be a special reason, they simply relate to the offender’s personal circumstances not to the offence, although one might say there could be some correlation between the two. But Ms Wotton’s submission is

1 Basile v Atwill [1995] 2 NZLR 537.

2 Croad v Hughes CA52/95, 21 June 1995.

that when one takes into the account the fact that these sea trips, particularly in larger vessels, are likely to be for weeks at a time, concerns about matters back at home or indeed fatigue could not be regarded as unusual, and in the words of Captain Burfitt in the affidavit filed by the defence he says:

There are numerous and other conditions that can contribute to a reduction in human performance. Preoccupation with matters not related to the task at hand is a common contributor to people performing poorly. Perhaps the most common and well researched is the effect of fatigue.

[32] Another matter raised was that of task fixation, and Ms Wotton submits that that may well be a further explanation for failure to realise that the vessel was fishing in the BPA but of itself she submits could not be a special reason. Again, it is a factor relating to the offender, not the offence, and is not, in her submission, anything out of the ordinary. Again, quoting from Captain Burfitt’s affidavit filed by the defence, he says, “Task fixation is a common threat to safe maritime operations,” and Ms Wotton’s reasoning is that if this is such a common occurrence as Captain Burfitt says, it would be difficult to regard that, therefore, as special.

[33] Ms Wotton deals with the question of acting on instructions by saying that this is really quite irrelevant because one person will often be in control of the vessel but the captain retains oversight of the vessel and has the final say which would be common to most, if not all, vessels, and this, if it is relevant at all, could only pertain to those tows where Mr Pope was in charge but, again, could hardly be regarded as a special reason.

[34] Again, loss of situational awareness is something that Ms Wotton says could not be a special reason, it is a matter personal to the offender, and, again, Captain Burfitt says, “Lacking or inadequate situational awareness has been identified as one of the primary factors in accidents attributed to human error,” and so, again, using similar reasoning, Ms Wotton says that that could not be regarded as a special reason or something out of the usual.

[35] Indeed, looking at the question of the immediate cessation of fishing, she makes the point that while there was such a cessation it had taken quite some time, given the summary of facts, for the realisation to set in, and the problem with the

submission that the defence makes is that of course at the point where it was realised that an offence was being committed, the offence indeed was already committed.

[36] Mr Goomes, and I have discussed this matter with Ms Proctor-Western at some length today, makes it clear in his view that there was a problem with the way the plotting was entered on the relevant document and he said that questions of zooming out and changing the colours on plot lines that happened in the aftermath of this shows that those relatively simple matters could have easily been put in place prior to this offending, they are not matters relating to any technological advances, they are simply matters that ought to have been within the contemplation of Sealord. And she reiterates that the realisation about where the vessel was when Mr Goomes realised it happened only after about 48 hours had transpired and it is supportive of the proposition that Mr Goomes, and in fact subsequently Mr Pope, did not check where they were until Mr Goomes did and realised the mistake and that is a proposition which arises in the defence submissions.

[37] Again, I agree that they would be matters of mitigation, there is a good deal of mitigation it seems to me on a purely sentencing rationale, but that does not mean it is a special reason relating to the offence. It highlights the human error aspect and it highlights the fact that there was no intention to offend which I have not questioned at any point. And that lack of intention of itself could not be a special reason. It is accepted there was no intent here but where a strict liability is imposed it is difficult to see how that lack of intention of itself could be a special reason. And I simply note that Sealord accepted that given the statutory framework it really was inevitable probably that they accepted responsibility for what has happened to it at the hands of their employees.

[38] Overall, Ms Wotton says that human error indeed is perhaps a hallmark of many of these cases and it is really a question of what was in place or could have reasonably been put in place to nullify or mitigate that happening. Here the position taken for the prosecution is that both of these defendants were experienced commercial fishermen, they were both aware of the BPA, but it seems, and this is taken partly at least from the defence submissions, that neither of these men checked the location at the outset of the trip and so for about 48 hours there was a repetition of bottom trawling

in the area without either checking the location of the BPA or the vessel position and they both should have checked that, ideally before the commencement of the fishing trip. The prosecution says it would have been reasonable to expect that these topics would be discussed during pre-departure and overall briefing that has been referred to by Mr Goomes and Mr Pope in their affidavits. At the latest it should have been checked when the vessel started fishing off the East Coast and that the failure to do so was unreasonable.

[39] In relation to the question of how I view the position of Sealord, Ms Proctor-Western has referred me to the case of Ministry of Agriculture & Fisheries v Modesto Holdings Ltd, a decision of His Honour Williamson J in 1993.3 There, there was a consideration of the position of principal and vicarious liability for the actions of its agent. Ms Wotton makes the point that that was decided of course under the previous legislation. The current legislation deems the actions of the master and crew to be the actions of the company and so there is no requirement of course to prove intention and it is not suggested otherwise. But what Ms Wotton submits is that the degree or otherwise of Sealord’s intention itself cannot be a special reason relating to the offence.

[40] I adopt, with respect, the reasoning of Judge Rea in Ministry of Fisheries v Mogford Fishing Ltd and he said:4

It would be extraordinary indeed if a situation such as this where the only matter that can be put forward is that it was an employee who made the mistake and not a director of the company was sufficient to give rise to special reasons.

[41] Ms Wotton also goes on to accept, as I do, that there have been a number of improvements to procedures in the aftermath of this, and I take all of that to be an entirely responsible response of this high level, high profile fishing company. But the point that Ms Wotton makes, which I have also discussed with Ms Proctor-Western, is that the matters that could have prevented this offending were relatively low-tech or indeed could be regarded as simply common sense.

3 Ministry of Agriculture & Fisheries v Modesto Holdings Ltd HC Invercargill AP4/93, 21 June 1993.

4 Ministry of Fisheries v Mogford Fishing Ltd DC Napier CRI-2005-041-3802, 7 April 2006.

[42] Ms Wotton says that the BPA boundaries should have been marked in a way so as to prevent mistake and, as I have already indicated, Mr Goomes takes issue with whether that was the case or not. He referred to, as I have already said, the BPA boundary as a” vague little green line”. Ms Proctor-Western today has challenged that to an extent but I simply take the view that what Mr Goomes said has to carry some weight about that because he also says that after the incident he himself inserted prominent red lines over the boundaries to highlight the BPA on the plotter to avoid the possibility of similar mistakes being made again and that, to my mind, is significant.

[43] One of the other changes that has been made by Sealord in the aftermath of this is to require that one SeaPlot remains zoomed out while a vessel is operating. This, again, would help to guard against the loss of situational awareness that occurred in this case and, again, is a matter to which Captain Burfitt makes note of in his affidavit, and Ms Wotton’s submission is there is no logical reason why that could not have been issued earlier, it is a matter of experience and is not a matter that would necessarily need to await some event so as to bring this to the attention of Sealord.

[44] Mr Goomes now notes that the briefing notes to which I have earlier referred have been updated since this incident and says that these boundaries in closed areas are now discussed in every handover. Again, that is commendable but, again, is not an update, as it were, that needed to await this type of event. It seems to me that that ought to have been part and parcel of these operations given the large area that these zones cover. All of these changes could and should have been put in place much earlier on.

[45] Ms Wotton does discuss some of the more technical possibilities, but I think that it would be wiser for me not to embark on that because I take account of Sealord’s position that some of that was ongoing. Some technological knowledge I think was available but, as Ms Wotton accepts, it may have been less than accurate. Whether that should have been nonetheless put in place despite limitations on its accuracy is not a matter I can determine here but I think it would be unwise to rely upon it in terms of whether there were special reasons or not.

[46] Having considered all of the affidavit evidence, having considered all of the submissions oral and written, my view of the matter is that I could not find that there are special reasons here to depart from the consequence of conviction.

[47] That does not mean that forfeiture is now ordered because I then have to consider whether if forfeiture is to take place, what effect that has on the prospect of a s 106 sentencing application. In my view, the Act is quite clear that it prevents me from entertaining such a discharge and so, for the sake of clarity, I make an order now that there will be forfeiture because conviction must now follow there being no ability of the Court to consider a s 106 discharge. It seems to me that there is no basis upon which I could come to different conclusions as to the vessel and the monies arising from the sale of the fish and so, for the reasons I have expressed, forfeiture will apply both to the vessel and to the sum set out in the summary of facts.

[48] Having determined the question of forfeiture and, therefore, the inability of the Court to consider a s 106 Sentencing Act discharge without conviction, I now have to turn to the sentencing. A forerunner of that of course, as I indicated earlier, is that now there must be a conviction entered for Sealord which is now done.

[49] The sentencing process then follows a conventional format where the Court arrives at a starting point and in terms of the recent Court of Appeal decision in Moses v R undertakes a two-step process rather than a three-step process as was previously employed by the Courts.5 That two step process involves setting a starting point and adding to it or subtracting from it matters that are aggravating or mitigating of the offending to arrive at what is termed in the Moses v R case as an adjusted starting point. From that adjusted starting point one then takes all matters of discount that are personal to the defendant and the discount available for guilty plea, indeed any other discounts that might be available, and really lump them together, rather than the previous situation which was to in a descending scale from the starting point set out various discounts and then subtract them from the ever decreasing end point and the discount for guilty plea was always regarded as coming last to give an overall end

5 Moses v R [2020] NZCA 296.

point. Sometimes the difference will be hardly significant, but I accept that there will be cases where it will be of some more significance.

[50] I think it appropriate to deal with Mr Goomes and Mr Pope first. Their positions are a little easier to grapple with. Both of them have filed affidavits, as I earlier referred to, but in the case of Mr Pope he has also filed, I record, a statement of means for which I am grateful. In both cases, however, Ms Proctor-Western has indicated to me, firstly, that both would be able to pay a fine, which is the only remedy available to the Court, and, as I have observed, both are able to go to the registry and make arrangements to pay such fines as may be levied on such terms as may be appropriate for them.

[51] In terms of a starting point in these cases, Ms Wotton has already provided me in the course of her own submissions with what she says is an appropriate starting point for each of these persons. What is of assistance here is that Ms Proctor-Western does not take issue with either of them.

[52] The position Ms Wotton takes is that Mr Goomes should have a starting point fine of $15,000 and Mr Pope $10,000. It is simply a demarcation arrived at by the fact that Mr Goomes was responsible for three of the tows and Mr Pope two. And so, there being no opposition to that, I then have to turn to assess in each case, there being no basis that I can see to uplift either of those sums for any aggravating feature over and above the matters canvassed in the summary of facts, just what should be deducted.

[53] Now the position that I take here is that both Mr Goomes, and indeed Mr Pope, are persons who come before the Court not only as first offenders in this regard, but also, as has been set out in the material to which I have previously referred in part, experienced, responsible fishermen. I have already determined, this was a matter of human error and mistake on their part, both of which they have been at pains to acknowledge and, as Ms Wotton indicates, there is no question here of intent. That is not a feature of this case at all. It was an error. And so I treat them both as coming before the Court perhaps in unfortunate circumstances. Mistakes do happen.

[54] I would have thought that from that initial starting point that one could readily arrive at the view that they would each be entitled to a considerable discount for their personal circumstances, including their lack of any previous appearances in this area.

[55] In terms of Mr Goomes, the discount I arrive at for his personal circumstances is 25 percent and the same for the discount according to the case of Hessell v R which is also to be 25 percent.6 That is an overall discount then of $7500 which is my intention that the fine be reduced by one half. And so Mr Goomes will be fined the sum of $7500 plus Court costs of $130.

[56] As to Mr Pope, the same considerations will apply, and his sum again will be reduced by the sum of $5000 to leave $5000 by way of a fine. He will, therefore, be fined the sum of $5000 plus costs of $130.

[57] That then brings me to perhaps the more involved calculations and submissions relating to Sealord, the matters relating to Mr Goomes and Mr Pope having been dealt with on the basis I have indicated.

[58] Here the starting point that is suggested for Sealord is one of $60,000. The reasoning behind that starting point is that having regard to a case with some similarities to this one there was a starting point there of $20,000. That all must be seen against the maximum penalty here of $100,000. Here Ms Wotton concentrates on the scientific information which indicates that incursion of this nature is likely to be serious and long lasting and, in her submissions, Ms Wotton has referred to other instances where such incursions have occurred and where even after some 15 years there has been no distinguishable or significant reparation shown in the environment where the incursion occurred.

[59] In the Hasson case to which she referred there was there a longer period of towing but there was no damage located, there was no illegal catch and no protected species harmed on the facts of that case.7 That led to the $20,000 starting point that in

6 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

7 Ministry for Primary Industries v Hasson and Antons Trawling Company Limited DC Wellington CRNs 12008500019-22, 27 January 2014.

that case Judge Hastings arrived at. That also was a case involving a benthic protection area, although not the one I am dealing with.

[60] In this case Ms Wotton points to not only the damage that is likely to have occurred to the environment, also the level of catch. There was some 1300 kilograms of sponge that was taken by way of bycatch perhaps, but it is likely, Ms Wotton says, that something in the order of 10 times that amount is likely to have been harmed. She also points to the scientific basis to suggest that the sponges are important in the food chain because they provide in many cases habitat for other species, including fish.

[61] And so here, given the trawl over some hours, five tows being involved and

$112,000 worth of catch, as well as the damage that is highly likely on the scientific information available to have been serious, puts this in a category, in Ms Wotton’s submission, that would justify a starting point for Sealord of $60,000.

[62] Against that submission, the submission by the defence is made that to increase the Hasson starting point by $40,000 to $60,000 is unsustainable and Ms Proctor-Western refers, firstly, to the fact that in the Hasson case the trawl was over a considerably longer period, but of course that rather overlooks the fact that, despite it being a longer trawl, it was not productive of any harm to the environment, and that is really the defining aspect that Ms Wotton relies upon.

[63] In terms of any discount once a starting point is determined it seems to me, that there could be no basis for any uplift to whatever that starting point should be. That is because I have read closely the affidavits put in by the defence which speak of the overall operation, if I can put it that way, of this company, its commitment to excellence, its partnership with iwi concerns, and its reputation on the national and international scene. I acknowledge the remedial matters that it has put in place in this case which shows to me an acceptance of responsibility and a commitment to the excellence that I have referred to. In all those circumstances it seems to me that in calculating this part of any discount including for lack of any previous such offending I should err on the high side. There will be also of course, the full discount for the guilty plea.

[64] In my view, although I accept that there is resistance to it, in my view against a maximum of $100,000, bearing in mind what I have been told without any real challenge is the likely environmental impact of all this, I would have thought that

$60,000 is in fact sustainable. I would grant for the excellence that I have referred to an overall discount of 35 percent of that figure. I would also from that initial figure grant a 25 percent discount and the total of those together is $36,000 and when, therefore, taken from the first figure amounts to a fine of $24,000 plus Court costs. That seems to me to be a fair reflection of the balance between the responsibility Sealord must take for the acts of its agents, the environmental matters for which it must take responsibility here but having regard as I have indicated, and I hope expressly indicated, to my view that Sealord is certainly, to put it colloquially, a giant in the industry in which it operates.

[65] So for all those reasons Sealord will be fined the sum that I have indicated plus Court costs $130, so that is a total of $24,000 plus Court costs.

Judge DC Ruth

District Court Judge

Date of authentication: 01/08/2020

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.