Thomas v Wellington Fish and Game Council [2014] NZHC 1276 (6 June 2014)

Last Updated: 25 July 2014

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI 2014-483-7 [2014] NZHC 1276

BETWEEN	GRAEME IVAN THOMAS Appellant
AND	WELLINGTON FISH AND GAME COUNCIL Respondent

Hearing:	6 June 2014 (by AVL)
Counsel:	Appellant in person P S Coles for respondent
Judgment:	6 June 2014

_{ORAL JUDGMENT OF MALLON J}

[1] Mr Thomas, you were caught fishing in the Rangitikei River without a licence. You were also using a worm as bait which was prohibited. A notice on the bridge from which you were fishing provided clear notice that a licence was needed and the use of bait was prohibited.

[2] You have a previous conviction for fishing without a licence that was in

1999. You were fined a total of $600 and your fishing equipment was forfeited on that occasion.

[3] The background to you appearing today is a little complicated. The matter began in the District Court. As was the position prior to the enactment of the Criminal Procedure Act 2011, you wrote in a letter to the Court accepting that you

_{were guilty and, on the basis of that, you were convicted. The District Court Judge}

THOMAS v WGTN FISH AND GAME COUNCIL [2014] NZHC 1276 [6 June 2014]

imposed a total penalty for this offending of $1,760.¹ That sum was made up as follows:

(a) On the charge of fishing for sports fish without a current sports fish licence:²

Fine	$650
Offender’s levy	50
Court costs	130
Other costs	200

(b) On the charge of fishing for sports fish using bait in an area where

_{such is prohibited:}³

Fine	$400
Court costs	130
Other costs	200

[4] In addition, a forfeiture order was made in respect of your fishing gear.

[5] You then appealed against your convictions and sentence. The appeal against your convictions was on matters which do not amount to defences. Trout, regardless of size, are classified as sports fish so the charge of fishing for sports fish without a licence was the correct charge. You were not charged with taking fish when not permitted, but rather with using bait which was prohibited. It appears that you may have been confused about the charge because the charging document differed from the original information. But in any event, the point is that the two charges on which you were convicted were the correct charges.

[6] In the hearing today, counsel for the Fish and Game Council has advised the Court that the procedure in the District Court was no longer correct and that it was necessary for you to appear in the District Court to enter your guilty plea. That

_{arises because community work is an available sentence and that puts these charges}

¹ Wellington Fish and Game Council v Thomas DC Taihape CRI-2014-067-009, 17 February

_2014.

² _{Conservation Act 1987, s 26ZI(1)(a).}

³ Section 26R(4)(c).

in what are called category two offences under the Criminal Procedure Act.⁴ The consequence of this is that your appeal should be allowed as a miscarriage of justice on the basis of a procedural irregularity.⁵

[7] In discussion with counsel and with you, it was proposed that an alternative course to sending this back to the District Court, was for me to deal with the matter de novo.⁶ You agreed that that was the best course. You advised that you did not need legal advice and that you remained content to plead guilty because you accept that you are guilty of the offences. The charges were put to you and pleas were entered.

[8] I have listened to what you have had to say and to what Mr Coles has said in response. The fine of $650 that the District Court Judge imposed in respect of the first offence was appropriate when one looks at the schedule of other fines that have been imposed for similar offending in the Southland and Rotorua areas.⁷ So I am imposing a fine of $650 on the first charge of fishing for sports fish without a current sports fish licence. On the second charge of fishing for sports fish using bait in an area where such is prohibited, that is an aggravating factor and warrants a sum in addition to the fine of $650. However, in view of the totality principle, I set the fine

on that offence at $200. In addition, because this was, in reality, one incident with two aggravating factors, rather than two discrete and separate matters occurring, for example, on different occasions, I consider it is appropriate to impose one set of Court costs of $130 and one set of prosecution costs of $200. So that is the sentence I am imposing on you.

[9] I note that you submitted that it would be preferable if you could pay those sums to charities of your choice – Rescue Helicopter and St John’s. I understand the sentiments behind that but I consider that it is more consistent with the legislative scheme for these fines to be paid as fines. Then, in accordance with the

_{Conservation Act 1987, they will be remitted in full to Fish and Game for the}

⁴ _{Conservation Act 1987, s 44A; Criminal Procedure Act 2011, ss 6 and 37 (compare with s 38).}

⁵ _{Criminal Procedure Act 2011, ss 229 and 232.}

⁶ _{Criminal Procedure Act 2011, s 70.}

⁷ Schedule of fines provided to the District Court when sentencing Mr Thomas.

management of the conservation estate, which is obviously appropriate for offending of this kind.

[10] I also note that you have indicated that you are in a position to meet a fine because you are in employment and that also makes fines the appropriate sentence in this case. A forfeiture order in respect of your fishing gear is sought and is made.

[11] Postscript: I formally record that the convictions and sentence in the District Court are set aside. They are replaced with convictions which I enter on Mr Thomas’s guilty pleas and the sentence set out at [8] above.

Mallon J

Solicitors:

Peter Coles, Palmerston North for respondent

Copy to:

G I Thomas