Chen v Ministry of Fisheries HC Auckland CRI-2010-404-190 [2011] NZHC 1090 (26 August 2011)

Last Updated: 15 October 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2010-404-190}

BETWEEN XIAOGIANG CHEN Appellant

AND MINISTRY OF FISHERIES Respondent

Hearing: 23 May 2011

Appearances: P Heaslip for the Appellant

S Barr for the Respondent

Judgment: 26 August 2011 at 4:00 PM

_{RESERVED JUDGMENT OF PETERS J}

This judgment was delivered by me on 26 August 2011 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ........................................

Solicitors/Counsel:

Mr P Heaslip, Barrister, Auckland (email: [e-mail])

Luke Cunningham & Clere, Crown Solicitor, Wellington (email: [e-mail])

CHEN V MINISTRY OF FISHERIES HC AK CRI-2010-404-190 26 August 2011

Introduction

[1] The appellant seeks leave to appeal a sentence out of time and, if leave is granted, to appeal that sentence. The respondent opposes the appellant’s application for leave and, if leave is granted, opposes any variation of the sentence.

[2] On 22 September 2009 in the District Court at Manukau, the appellant was convicted on four charges brought pursuant to s 233(1) of the Fisheries Act 1996 (―Fisheries Act‖), being charges of obtaining a benefit by knowingly possessing and procuring paua otherwise than in accordance with the Fisheries Act. Those convictions followed a hearing of the charges before a Judge in early 2009. The hearing was in respect of charges against the appellant and against two co-defendants who were charged as parties.

[3] The maximum penalty which might have been imposed on the appellant on each charge was a term of imprisonment not exceeding five years or a fine not exceeding $250,000.00 or both.1 In addition, any property used in the commission of

the offence was forfeit unless the Court ordered otherwise.2

[4] On 19 January 2010, the Judge sentenced the appellant to 12 months’ home detention and 350 hours community work on each charge. The Judge also made an order for forfeiture of a set of electronic portable scales and of the appellant’s motor vehicle. The Judge sentenced one co-defendant to eight months’ home detention and

200 hours’ community work. The Judge sentenced the other, a teenager, to three months’ community detention and 250 hours’ of community work. The Judge ordered that all sentences be served concurrently.

[5] On 20 May 2010 the appellant filed a notice of general appeal against conviction. The appeal against conviction resulted from the High Court decision in Vu v Ministry of Fisheries.3 The decision cast doubt on the appellant’s convictions.

_{By consent, the appellant was released on bail in May 2010. Subsequent decisions}

1 _{Fisheries Act 1996, s 252(1)(c) and Summary Proceedings Act 1957, ss 6 and 7.}

2 _{Fisheries Act 1996, s 255D(2)(c).}

3 Vu v Ministry of Fisheries HC Auckland CRI-2009-404-263, 18 May 2010.

of the Court of Appeal and Supreme Court in Vu led the appellant to abandon his appeal against conviction.4 It was at that point that it became clear that the appellant proposed to appeal against sentence. The appellant has remained on bail by consent and, at the hearing of the appeal and again by consent, I varied his conditions of bail.

Facts

[6] The charges against the appellant arose from the visit of an undercover fisheries agent to a fish shop in Auckland in April 2008. The co-defendants were in charge of the shop at the time. The agent offered to sell paua to them. They declined but one of them obtained the agent’s contact details.

[7] Subsequently, the agent was asked to return to the shop. This led to the agent making four sales of paua to the appellant between 18 and 20 April 2008. The appellant purchased 20 kilograms, then 60 kilograms, then two lots of 50 kilograms, giving a total of 180 kilograms of paua, for which the appellant paid approximately

$5,200.00. The Judge found as a fact that the appellant knew the sales were illegal.

[8] The appellant sought to defend the charges on the basis that he had been entrapped by the agent. The Judge rejected the defence and convicted the appellant on each charge.

Judge’s approach to sentencing

[9] The Judge first identified the appropriate starting point. In doing so, the Judge referred to the substantial harm that the black market in seafood causes to New Zealand’s economic interests and to the risks which arise if seafood is sold for human consumption otherwise than in accordance with prescribed standards. The Judge referred to a statutory presumption of sale which arises if more than three

times the daily limit of a resource is procured, as it was in this case.5

[10] The Judge then referred to submissions that counsel had made regarding other sentencing decisions in respect of similar offending. The Judge considered that

4 _{See: Ministry of Fisheries v Vu [2010] NZCA 469; Vu v Ministry of Fisheries [2010] NZSC 162.}

5 Fisheries Act 1996, s 195.

the District Court’s decision in Ministry of Fisheries v Vu6 was the most relevant, as the weight of paua in issue was almost identical.

[11] The Judge adopted a starting point of two years’ imprisonment and her notes record that (then) counsel for the appellant said he could not dispute a starting point of that level.

[12] The Judge then considered aggravating and mitigating factors. With respect to the Judge, some of these matters were required to be taken into account in arriving at the starting point, not subsequently.

[13] The matters to which the Judge referred were that the appellant was a first offender and that there was a low risk of re-offending if she imposed a sentence with a deterrent element. The Judge referred to ss 7 and 8 of the Sentencing Act 2002 (―the Act‖) and the need to hold the appellant accountable for the harm done by his offending, to promote in him a sense of responsibility, to denounce his conduct and to deter him from further offending. The Judge took into account the gravity of the offending, including the quantity of paua involved, the element of premeditation and the repeated nature of the transactions. The Judge also said that the appellant did not accept responsibility for his actions and continued to blame the fisheries officer. The Judge took into account that the appellant’s family were dependent on him financially, for transport and for his English speaking skills.

[14] Having considered these matters, the Judge arrived at the sentence referred to in [4] above.

Leave to appeal

[15] The appellant’s application for leave to appeal sentence is well out of time. The appellant’s explanation is that he always intended to appeal sentence as well as conviction and that he believed he had done so. The respondent opposes leave being granted. However, I propose to grant the leave for two reasons. First, the High Court’s decision in Vu did cause some confusion as to the appellant’s

convictions. Secondly, I am satisfied that the appeal against sentence has some merit.

Approach to appeal

[16] The appellant has a general right of appeal against sentence. Such an appeal is by way of rehearing.7 The powers of the High Court on hearing an appeal against sentence are set out in s 121(3) of the Summary Proceedings Act 1957, which provides –

In the case of an appeal against sentence, the High Court may—

(a) Confirm the sentence; or

(b) If the sentence (either in whole or in part) is one which the Court imposing it had no jurisdiction to impose, or is one which is clearly excessive or inadequate or inappropriate, or if the High Court is satisfied that substantial facts relating to the offence or to the offender's character or personal history were not before the Court imposing sentence, or that those facts were not substantially as placed before or found by that Court, either—

(i) quash the sentence and either pass such other sentence warranted in law (whether more or less severe) in substitution therefor as the High Court thinks ought to have been passed or deal with the offender in any other way that the Court imposing sentence could have dealt with him on the conviction; or

(ii) quash any invalid part of the sentence that is severable from the residue; or

(iii) vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it.

[17] It is clear from this provision that for a sentence to be varied it must be shown to be clearly excessive or inadequate or inappropriate, or made without jurisdiction, or without substantial relevant facts before the Court. The High Court is not entitled to substitute a sentence which it considers might have been appropriate.

Appellant’s submissions

[18] Counsel for the appellant took no issue with a sentence of home detention but submitted that the appropriate length of sentence was six months’ home detention, given the forfeiture of the appellant’s vehicle. Counsel referred to various respects in which he submitted the Judge had erred. Some were specific to provisions of the Act and I will refer to them as I come to them.

[19] Counsel submitted however that the Judge erred generally in that she failed to follow the correct approach to sentencing required by R v Taueki.8 Counsel also submitted that the Judge failed to have regard to matters set out in ss 8(a) to (e) of the Act and mitigating factors arising under s 9(2) of the Act.

[20] There is merit in the submission that the Judge did not follow the correct approach in sentencing the appellant. The correct approach is to determine a starting point for the offending taking into account the purposes and principles of sentencing and such aggravating and mitigating factors as the offending presents. From that starting point the sentence may be increased or reduced according to such aggravating or mitigating factors as arise which are personal to the offender. I propose to undertake that assessment so as to determine the appeal.

[21] First, there was no dispute on appeal that the Judge had identified the purposes of sentencing which apply to this type of offending. In addition, the Court was required to take into account the purpose of the Fisheries Act, the difficulties inherent in detecting fisheries offences and the need to maintain adequate deterrents

against the commission of such offences.9 The purpose of the Fisheries Act is to

provide for the utilisation of fisheries resources while ensuring sustainability. Fisheries resources must be administered to meet the social, economic and cultural needs of future generations. Those who circumvent the requirements of the

_{Fisheries Act undermine that goal.}

8 _{R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372; (2005) 21 CRNZ 769 (CA).}

9 Fisheries Act 1996, s 254.

[22] Secondly, it is necessary to consider the principles of sentencing in s 8 of the Act. The quantity of paua was substantial but it was not at the highest end of offending. Cases involving much larger quantities have come before the Court. The offending was also short lived. Some cases before the Court have involved offending over many months.

[23] It is also necessary to take into account the desirability of consistency in sentencing levels as between those who commit the same or a similar offence in the same or similar circumstances.10 Counsel referred me to several cases relevant to determining the starting point.

[24] In Dewes v Ministry of Agriculture and Fisheries,11 the appellant was convicted on two charges, having sold a total of 81.5 kilograms of paua. The Judge said that illegal commercial activities might be small, medium or large in scale.12

The Judge considered a small commercial operation would justify consideration of a non-custodial sentence. Medium scale activities, and the Judge put the offending before him in that category, would justify a sentence of one to two years. A sentence of three years or more would be reserved for large commercial operations.13 In that case, the Judge adopted a starting point of one year.

[25] In Vu, the District Court sentenced a principal offender and a party in respect of the purchase and on sale of 185 kilograms of paua. The Judge adopted a starting point of two years in respect of the principal offender.

[26] Paenga v Ministry of Fisheries14 (decided after the Judge sentenced the appellant in the present case) was an appeal against sentence. The Judge at first instance adopted a starting point of two and a half years in respect of 15 charges, committed over a six month period and involving 257.3 kilograms of paua. The Judge in the High Court reduced the starting point to 21 months, principally to ensure parity of sentencing with other offenders convicted as part of the same

_{undercover operation. Those other offenders were:}

10 _{Sentencing Act 2002, s 8(e).}

11 _{Dewes v Ministry of Agriculture and Fisheries HC Gisborne AP20/02, 7 October 2002.}

12 _{Ibid at [16].}

13 _{Ibid at [18].}

14 Paenga v Ministry of Fisheries HC Wellington CRI-2009-485-150, 4 March 2010.

(a) Mr Pearse - nine charges, 222.75 kilograms of paua, starting point of two years, three months’ imprisonment;

(b) Mr Snowden - 14 charges, 478.75 kilograms of paua, starting point of

18 months’ imprisonment; and

(c) Mr Tuapara - 30 charges, 615.5 kilograms of paua, starting point of two years, two months’ imprisonment.

[27] Paul v Ministry of Fisheries15 was another appeal against sentence and again was decided after the appellant in this case was sentenced. The offender in that case had been convicted of selling 109 kilograms of paua on eight occasions over a six month period. The High Court adopted a starting point of 12 months’ imprisonment.

[28] I turn now to consider s 9 of the Act and whether this case presents features which aggravate or mitigate the offending. The Judge considered the offending was premeditated. Counsel for the appellant submitted that the appellant did not instigate the offending but took advantage of an offer he thought ―was too good to refuse‖, and that he did not know his actions constituted an offence under New Zealand law. Counsel for the respondent submitted that it was clear from the facts that the offending was deliberate. I agree but also consider that premeditation was a factor in the other cases to which I have referred.

[29] There are no mitigating factors relating to this offending.

[30] Taking all of these matters into account, and particularly the decisions to which I have referred, I am persuaded that the starting point which the Judge adopted was too high. The appellant was convicted on fewer charges than the offenders referred to in Paenga and the quantity of paua involved was less, substantially so when one considers the cases of Mr Snowden and Mr Tuapara. I consider a starting

_{point of 21 months’ imprisonment was appropriate.}

15 Paul v Ministry of Fisheries HC Wellington CRI-2011-485-02, 29 March 2011.

[31] The next issue is whether there are aggravating or mitigating factors which are personal to the offender. There are no such aggravating factors. I agree with the Judge that it is necessary to take into account the effect of the sentence on the appellant’s family and the financial consequences of the forfeiture of the vehicle. Counsel for the appellant submitted that the Judge failed to consider this matter and that the Judge did not ―factor remorse into the equation‖. I accept the submission of counsel for the respondent that the Judge did take these matters into account and that the appellant showed no remorse.

[32] I reduce the starting point by three months in respect of the matters to which I have referred in the previous paragraph, so as to arrive at a final sentence of 18 months’ imprisonment on each charge.

[33] Counsel for the appellant submitted that the Judge should have considered a

―criminogenic‖ programme to ensure ―straight thinking‖ as part of a ―rehabilitative package‖. I do not consider there is any basis for that submission. A sentence of home detention and community work was, in my view, appropriate.

[34] To conclude, I consider that a sentence of nine months’ home detention is appropriate, together with the 350 hours community work the Judge imposed and the orders she made for forfeiture.

[35] Counsel for the appellant submitted that it would be unduly harsh to require the appellant to complete his sentence of home detention, given that he has been on bail since 10 June 2010. I do not accept that submission. It was the appellant who sought bail. The appellant is required to complete his sentence and undertake the hours of community work which the Judge ordered.

Result

[36] I vary the sentence imposed by the District Court at Manukau on

19 January 2010 so as to sentence the appellant to nine months’ home detention. In all other respects the orders made by the Judge as set out in [26] of her decision are

confirmed. Counsel may apply if any issue arises as to the address at which the sentence of home detention is to be served.

..................................................................
PETERS J