Police v Hanafin [2020] NZDC 23606 (13 November 2020)

Last Updated: 9 July 2021

IN THE DISTRICT COURT AT TIMARU I TE KŌTI-Ā-ROHE KI TE TIHI-O-MARU

CRI-2019-076-001503 [2020] NZDC 23606

NEW ZEALAND POLICE Prosecutor

v

Nicholas George De Courcy HANAFIN Genevieve Claire DE SPA Nathan John PARKER Rosemary Anne PENWARDEN Defendants

Hearing:	13 November 2020
Appearances:	Sergeant I Howard for the Police Mr H Smith for the defendants
Judgment:	13 November 2020

ORAL JUDGMENT OF JUDGE J E MAZE

[1] The four of you occupied a vessel, used as a platform for oil drilling on the ocean floor, but at the time it was stopped in Timaru port. You were told to leave and refused to do so, and you declined to vacate when police attempted, for a significant period of time, to negotiate with you. You were arrested and charged with trespass. You were co-operative at that point.

[2] It seems as though the vessel was delayed in its departure by about 10 hours, although it is a little difficult to actually get to the bottom of that from the information

I have got. There was, originally, a suggestion of differing amounts of reparation sought, supposedly based upon the delays – some $10,700.00 from the defendants De Spa and Penwarden, and $6,800.00 odd for Parker, and $14,000 odd for Mr Hanafin. That appears, now, to have been resolved in any event, and I note the efforts that you have made towards to reparation and the making of amends.

[3] Three of you have no previous convictions. Mr Hanafin has one relevant conviction for trespass.

[4] Mr Smith has filed evidence from two experts as to the impact of continuing fossil fuel extraction upon the already well-identified consequences of mankind’s contribution to climate change. I have no difficulty, for today’s purposes, in accepting the evidence is overwhelming, and the labelling of this era is Anthropocene to reflect mankind’s abuse of the earth is unchallengeable on any logical or intelligent basis, but that is not really the point for today’s purposes.

[5] Mr Smith says that you took the action you did out of a genuine belief, founded on a basis of scientific consensus, as to the nature and effects of climate change saying this was necessary to respond to the continuing threats of harm. Your actions should be seen as environmental civil disobedience, genuinely motivated to address the danger of climate change and the lack of action from leaders around the world to mitigate it. The protest, he says, was peaceful and justified in that it was necessary to raise public awareness of an important environmental issue. He says that you all believe you had no option but to take direct action to interfere with the vessel in order to prevent it drilling into oil reserves that would be extracted and burned, contributing to climate change and its harmful consequences including injury, illness and death. He says I should bear in mind the fact that you pleaded guilty as soon as it was clear diversion would not be offered, and that has avoided the need for trial, and saved both time and valuable resources from the State. He also has provided a good deal of information through the affidavits of Julie Leigh McArthur and James Edward Hanson. He says that I should sentence on the basis of application of the Sentencing Act taking into account the personal background which is set out for each of the four of you, and I accept that each of you is, in all respects, a responsible and contributing member of this community. He says I should take into account the credit available to

each of you for prompt plea, bearing in mind that this matter could have been run to trial as much as anything else for its value in furthering what was your aim, which was to educate the public.

[6] The effects of mankind’s contribution to climate change and the effects of it on human habitation are, I accept, no longer challengeable. Many would say we have an urgent duty to stop the use and extraction of fossil fuel, especially within the countries who contribute disproportionately to climate change where the brunt of that change is borne, disproportionately in the first instance, often by those who contribute least but have little or no voice on the world stage. Your concern is probably not so much for the planet; it will survive, but not in the form that will be habitable for human beings. That, he says, is your concern.

[7] The right to speak out and challenge is undeniable. Freedom of responsible expression is a human right. No change will be effected by silence. There is an old legal saying “qui tacet consentit” or he who is silent, consents. I personally accept the observation that, without activism for urgency, change in this area may well be too late. But activism does not mean, necessarily, civil disobedience. Peaceful civil disobedience may be available, but it cannot be condoned where it infringes the genuine existing rights of another.

[8] Hohfeld’s Analysis of Rights remains good legal philosophy. Every right attracts obligations in balance. Here the obligation was not to interfere with another legal personality carrying out its rights where our current laws permit trade in the search for and extraction of fossil fuels. If the right to trade in fossil fuels is morally wrong, then the remedy is to seek change in the law and to educate the public to support your cause without breaching the law.

[9] I accept the submissions I have been given as to your motivation. I accept the submission that this is not a trespass of the worst of its kind and, under the Sentencing Act, the maximum penalty would be reserved for an offence of the worst of its kind. Given your motivation and the level of infringement upon the rights of the complainant, I accept it is at the lower end for culpability. I accept, as I have already said, that each of you is, in all respects, otherwise a responsible and contributing

member of your community, and I acknowledge the matters which are set out in the submissions as to that. I also accept that, in time, you may be referred to, or remembered, not as offenders, but as leaders in the same way as many advocates for women’s education and women’s suffrage were, in their time, seen as offenders and troublemakers, but are now seen as right-thinking leaders for change. But the fact remains that you could, and should, have achieved that peaceably without trespass. My only function here is to address what is the suitable penalty for committing a trespass, in these circumstances, applying the Sentencing Act.

[10] The aggravating features have to be the duration of the offending and the financial loss to the complainant. There are no personal aggravating features. Mr Hanafin’s one previous conviction for trespass does not make him a recidivist offender.

[11] The personal mitigating features include your genuine belief in the correctness of your course, the credit for your plea and your otherwise good character as responsible and contributing members of the community.

[12] On that basis, while I acknowledge the police are neutral as to the outcome, I accept the propriety of Mr Smith’s submissions and each of you will be convicted and discharged in respect of this trespass.

[13] I make no order for reparation, as none is sought, but at any event, I do bear in mind the fact I am obliged, when considering any reparation order, to bear in mind capacity to pay, and I am far from satisfied on the information available to me, at this point in time, as to the actual amount of loss.

[14] I decline the application for forfeiture of Mr Hanafin’s climbing equipment as it is an essential tool of trade and his only means of income. I order the forfeiture of the steel tubes.

Judge JE Maze

District Court Judge

Date of authentication: 17/11/2020

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