Tenbeth v Ministry of Fisheries [2012] NZHC 1832 (19 July 2012)

Last Updated: 23 August 2012

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2012-412-000023

CRI-2012-412-000024 [2012] NZHC 1832

BETWEEN LIAM GARY TENBETH Appellant

AND MINISTRY OF FISHERIES Respondent

CRI-2012-412-21

AND BETWEEN BRETT DAVID HOUSTON Appellant

AND MINISTRY OF FISHERIES Respondent

Hearing: 19 July 2012

Appearances: C D Savage for the Appellant Tenbeth

L A Andersen for the Appellant Houston

R P Bates and L M Matehaere for the Respondent

Judgment: 19 July 2012

ORAL JUDGMENT OF PRIESTLEY J (Appeal against sentence)

Counsel:

C D Savage, Barrister, Dunedin. Email: [e-mail]

L A Andersen, Barrister, Dunedin. Email: [e-mail]

R P Bates, Crown Solicitor, Dunedin. Email: [e-mail]

L Matehaere, Solicitor for Ministry for Primary Industries. Email: [e-mail]

TENBETH & HOUSTON V MINISTRY OF FISHERIES HC DUN CRI-2012-412-000023 [19 July 2012]

Introduction

[1] These appeals, argued together with the consent of all counsel, raise interesting aspects of appropriate sentences to be imposed for offending under the Fisheries Act 1996.

[2] The appellant, Mr Tenbeth was sentenced by Judge Crosbie to a term of two years imprisonment in the Dunedin District Court on 1 May 2012. Sentenced with him was the appellant Mr Houston who was sentenced to a term of 13 months imprisonment. In respect of both appellants the Judge declined to impose the lesser sentence of home detention.

[3] The presentence report before the Judge recommended imprisonment so far as Mr Tenbeth was concerned. The presentence report for Mr Houston, however, recommended the much more lenient sentence of community detention and community work.

[4] The Judge’s sentencing notes are, with respect, extremely well structured and touch all relevant bases so far as the Sentencing Act 2000 is concerned. The Judge also considered and indeed applied the most recent Court of Appeal authority on sentencing under the Fisheries Act 1996 being Tonga v R.1 The sole issue, raised by both appellants, is whether the Judge’s sentences were manifestly excessive. Both counsel urged on this Court a substituted sentence of home detention.

[5] It is not necessary to set out the offending in any detail. It involved extensive paua poaching off the Otago coast and the subsequent sale of the illegal paua green meat to fish and chip shop owners in the region. The summary of facts ran to some

34 pages. Approximately 2,500 paua were involved, or 1.5 tonnes of green meat. The commercial retail value of the poached paua was in the region of $79,000, with the additional commercial attraction of the shells.

[6] The principal alleged offender is still before the courts and there has been no disposition of the charges against him. The appellants, to their credit, however, pleaded guilty.

[7] The roles of both appellants were somewhat different. Mr Tenbeth’s role included diving activity during the second half of 2010, and taking an agreed percentage of the profits of the entire operation. Mr Houston’s involvement during much the same period (July 2010 to March 2011) involved assisting the sale of the illegal catch to the fish and chip shop operators I have mentioned. Mr Tenbeth was involved in marine activities on approximately six occasions. The alleged ring leader had obtained misleading or false customary authorisations to guard against the possibility of being apprehended.

[8] Both appellants were charged under different sections of the Fisheries Act. The maximum penalty in respect of the charges Mr Houston faced was five years imprisonment and/or a fine not exceeding $10,000. Similar penalties attached to the charges Mr Tenbeth faced. Unlike Mr Houston, however, Mr Tenbeth faced additional charges of an unrelated and dishonest nature, including amongst others the theft of his parents' motor vehicle and two charges of obtaining money by deception which involved a scam using receipts to obtain refunds from retailers.

Personal circumstances

[9] I have already mentioned the presentence reports for both appellants. Both appellants are in their early 30s. Mr Tenbeth was aged 30 years, lived at the time with his parents, had a gambling addiction, and had accumulated a large number of previous convictions (many of which I accept would have been driven in part by his gambling addiction), for offences involving dishonesty. The presentence report lists

60 previous dishonesty convictions to which the Judge was alert.

[10] Given the understandable pessimism of Mr Tenbeth’s parents, their home in Dunedin, which initially would have been available as a home detention address, was unsuitable. However, steps have been taken to obtain for Mr Tenbeth a home detention address at Piha, on Auckland’s west coast, at a camping ground under the

general supervision of a supporter who has a clear track record of helping people at that venue with addiction problems. On appeal Mr Savage submits that would be the appropriate address (if the appeal succeeds) where Mr Tenbeth could serve out a home detention sentence.

[11] Mr Houston’s situation is somewhat different. He and his partner (a seven year relationship) live in Dunedin. They have three children of their own and a teenage child from a previous relationship of the partner. There was a home detention annex obtained in respect of Mr Houston which made it clear the partner’s address would be suitable. It is to that address that it is proposed Mr Houston be released should I quash the sentence of imprisonment and substitute a sentence of home detention.

[12] Mr Houston has 49 previous convictions, including disorderly conduct, driving whilst disqualified, and breach of periodic detention. However, there have been no convictions since 2004. The presentence report interestingly describes Mr Houston’s remorse as being “low” because he apparently considered his offending to be minor.

Judge’s approach.

[13] The Judge rejected home detention for both appellants, as I have said. He referred to Tonga.2 The Judge considered that deterrence was an important sentencing factor to weigh. He did not, however, fall into the error of considering that all offending under the Fisheries Act must be met by a custodial sentence. The Judge, inter alia, said:

[20] I now turn to consider the purposes and principles of sentencing you today. In addition to the purposes and principles in the Sentencing Act 2002, particular regard is required to be had to s 254 Fisheries Act and that provides mandatory matters for the Court to take into account in imposing a sentence in relation to Fisheries offending. Those matters are the difficulties inherent with detecting Fisheries offences and the need to maintain adequate deterrence against the commission of such offences.

...

[52] I am obliged to impose a sentence that is the least restrictive outcome. I accept both of you have addresses that are identified as suitable for home detention. The Ministry’s responsible submission is that ultimately any sentence is a matter for the Court and I note the recommendations in the Probation report. The issue is always one of exercise of the Court’s discretion on a case-by-case basis.

...

[54] The Court of Appeal in Tonga held that a sentence of imprisonment can be imposed only if denunciation of the offending, accountability of the offenders and both specific and general deterrence cannot be achieved through a sentence other than imprisonment and that no other sentence would be consistent with the application of sentencing principles. The Court also held, as already noted, that it is a real alternative to imprisonment with in each case it being necessary to make an assessment of whether a sentence of imprisonment is required to meet relevant sentencing goals.

[55] In Tonga, the Court of Appeal found there were serious aggravating factors. In this case I have found your offending cannot be described as incidental. It was integral. You were necessary links in the chain. More than that, involvement by both of you in texting and communication demonstrates knowledge of the modus operandi and efforts of the alleged principal offender. In my view there are serious aggravating factors and, like the Court of Appeal in Tonga, I agree it is necessary to respond firmly to the offending in order to deter offenders and others from committing the same or similar offences.

[56] In addition, it is necessary to denounce your conduct and hold you accountable, and like the Court of Appeal in determining whether ultimately a sentence of imprisonment is required, it is highly appropriate to take into account the difficulties inherent in detecting this type of offending and a sentence of imprisonment is more likely to be seen as a deterrent to others than home detention.

[14] There is no challenge to the start points which the Judge fixed nor is there any challenge to the end sentence which resulted. So in terms of R v Taueki3 the Judge’s approach attracts no criticism from counsel. I agree.

Deterrence

[15] The Judge, as apparent from the above extracts, was directed to s 254 of the

Fisheries Act which provides:

254 Matters to be taken into account by Court in sentencing

If any person is convicted of an offence against this Act, the Court shall, in imposing sentence, take into account the purpose of this Act and shall have regard to—

(a) The difficulties inherent in detecting fisheries offences; and

(b) The need to maintain adequate deterrents (sic) against the commission of such offences.

[16] Mr Andersen points out that this provision predates the Sentencing Act 2000. Deterrence and denunciation are s 7(1) purposes. Clearly the Sentencing Act must be interpreted against the background of s 254 which is earlier legislation. However, I consider that for sentencing purposes the Sentencing Act and s 254 in combination require courts to give some weight to the aspect of deterrence, particularly for the stipulated reasons of difficulties of detention and adequate deterrence.

[17] In Tonga4 the Court of Appeal relevantly said:

[24] The amount harvested is substantially in excess of the legal limit and brings into play s 254 of the Act. That section requires a sentencing court to have regard to factors additional to those mentioned in the Sentencing Act

2002:

...

[30] A sentence of imprisonment can be imposed only if (in the context of this case) denunciation of the offending, accountability of the offenders and both specific and general deterrence cannot be achieved through a sentence other than imprisonment and no other sentence would be consistent with the application of sentencing principles.

Submissions

[18] All counsel have been succinct and focused with their submission. On behalf of Mr Tenbeth, Mr Savage submitted that in terms of the appellant’s rehabilitation and in particular in terms of assisting him to come to grips with his gambling addiction, the Piha location and the assistance which would have been available to him there were preferable to what he might receive in prison. Mr Savage candidly acknowledged that the further dishonesty convictions which the Judge was dealing with could point against home detention. Clearly, previous non-custodial sentences

imposed on the appellant for his dishonesty have not worked. Nonetheless, Mr Savage reminded me of the need to impose the least restrictive outcome and to assist in rehabilitation. Thus, it could be argued that the two year custodial sentence was manifestly excessive.

[19] Mr Andersen’s submissions for Mr Houston were robust. He pointed to possible disparity between the monetary penalties inflicted on the fish and chip shop owners (who were not charged with the same offences as Mr Houston). Although accepting the need to deter and the impact of s 254, Mr Andersen submitted the Judge had erred by looking at aggravating features which related to the poaching operation as a whole, rather than focusing instead on Mr Houston’s role as a middleman. His involvement was limited solely to assisting with the ultimate sales of the poached catch.

[20] In Mr Andersen’s submission the passages of Tonga,5 did not lead to the conclusion that the deterrence purpose led to imprisonment across the board.

Conclusion

[21] As I indicated to counsel at the outset (having read their submissions with care in advance), I leaned to the view that possibly the imposition of imprisonment on Mr Houston was an excessive sentence. Although the Judge had before him the personal circumstances of Mr Houston, outlined in the presentence report to which I have referred, I initially took the view that he had not tempered the sentence with sufficient regard to Mr Houston’s personal circumstances.

[22] I record for the sake of completeness that Ms Poulgrain, Mr Houston’s partner, was in Court today and with counsel’s consent I asked her some questions about her living conditions. I note in particular Mr Andersen’s submission that Mr Houston’s parents (as well as Ms Poulgrain) are very supportive of him and would clearly prefer the imposition of a home detention sentence.

[23] So far as the appellant Mr Tenbeth is concerned, I am of the view that the sentence imposed by Judge Crosbie was appropriate. Not only was Mr Tenbeth’s involvement in the poaching operation significant and repeated, but additionally he had a large number of dishonesty convictions. Even if one were to sever off the Fishing Act offending, any significant dishonesty offending by Mr Tenbeth would probably justify the imposition of a custodial sentence, given his past. I accept counsel’s submission that the Piha home detention address might be more beneficial for Mr Tenbeth than a custodial sentence. Nonetheless, I consider the Judge was right to reject the home detention option. It is my intention therefore to dismiss his appeal.

[24] The position of Mr Houston is more problematic. I record Mr Bates’s submission (sparked by an observation of my own), that although the sentence imposed on Mr Houston could be termed severe, it was nonetheless within range. Mr Andersen is correct when he points out that the aggravating features of the poaching operation as a whole cannot all be laid at Mr Houston’s door. Nonetheless Mr Houston was involved as an essential link in the poaching chain.

[25] Although his own financial reward was extremely low, his offending was repetitive. The reality is that Mr Houston was willing to be used as a pawn on a number of occasions so that the plundered paua catch could be sold on. The Judge, with respect, ought to have referred to and weighed in the balance Mr Houston’s personal circumstances and perhaps given some consideration to the impact of imprisonment on his partner and three children. I note that at the time of his imprisonment Mr Houston was not employed and the family seem to have been financial dependent on Social Welfare benefits.

[26] Although, as I have indicated, I initially had some unease about the sentence imposed on Mr Houston, I consider that the totality of his offending and his repetition bring deterrence into play, both as that purpose is relevant in the Sentencing Act and also having regard to s 254. If Mr Houston was not in the chain, distribution might have been more difficult for his co-offenders including the alleged ringleader. His role was therefore critical.

[27] Thus, after considerable thought and a degree of agonising, I have reached the view that although the 13 months imprisonment imposed on Mr Houston is a severe sentence (particularly for him and his family) it was nonetheless within range for the Judge and cannot properly be described as “manifestly excessive” which is the test. The Judge’s conclusion to impose imprisonment was, in the exercise of his sentencing discretion, an available conclusion reflecting the need for general and

specific deterrence as the Court of Appeal stipulated in Tonga at [30].6

Result

[28] For the reasons I have given therefore both appeals are dismissed.

..........................................
Priestley J