Parnwell v Police [2015] NZHC 1214 (3 June 2015)

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Parnwell v Police [2015] NZHC 1214 (3 June 2015)

Last Updated: 13 June 2015

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2015-463-000020 [2015] NZHC 1214

BETWEEN	ANTHONY GRAHAM PARNWELL Appellant
AND	NEW ZEALAND POLICE Respondent

CRI-2015-463-000022

BETWEEN BRADLEY DOUGLAS LANG Appellant

AND NEW ZEALAND POLICE Respondent

Hearing:	15 April 2015
Appearances:	S R Franklin for Appellants R W Jenson for Respondent
Judgment:	3 June 2015

_{JUDGMENT OF COURTNEY J}

This judgment was delivered by Justice Courtney on 3 June 2015 at 2.00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

_{Date...........................}

PARNWELL v NZ POLICE [2015] NZHC 1214 [3 June 2015]

Introduction

[1] The appellants, Anthony Parnwell and Bradley Lang, each pleaded guilty to one charge of hunting without the express authority of the landowner¹ and one of wilful damage.² Judge Ingram ordered the confiscation of Mr Parnwell’s vehicle and destruction of all the hunting equipment in the men’s possession.³ He imposed sentences of 150 and 100 hours of community work on Mr Parnwell on the

respective charges together with a small amount of reparation. He imposed sentences of 250 and 100 hours of community work on Mr Lang and a small amount of reparation.

[2] Mr Parnwell and Mr Lang appeal these sentences on the ground that they are manifestly excessive in that:

(a) (in Mr Parnwell’s case) the confiscation of the car was unduly harsh;

(b) the starting point taken by the Judge was too high;

(c) the order for the destruction of the men’s hunting equipment was, coupled with the sentences of community work, excessive.

[3] The appeals were advanced together and it was not suggested that there was any difference between Mr Parnwell and Mr Lang in terms of their respective culpability. Save for the issue of the confiscation, I therefore deal with the appeals together.

The offending

[4] On 5 December 2014, Mr Parnwell and Mr Lang drove to Wairoa with two younger men, brothers Caleb and Jack Benson. The Benson brothers had suggested a hunting trip in the Maungataniwha Forest, which is private land owned by Ashland’s Investments Ltd and is currently being converted from pine to native

_{forest under the oversight of the Forest Lifeforce Restoration Trust. The Benson}

¹ _{Wild Animal Control Act 1977, s 8(2), the penalties for which appear at s 39.}

² Summary Offences Act 1981, s 11, carrying a maximum penalty of three months’ imprisonment

_{or a fine not exceeding $2,000.}

³ Police v Parnwell DC Whakatane [2015] NZDC 3797.

brothers had previously hunted on this land without authority and been trespassed from it.

[5] The men travelled in Mr Parnwell’s car (though on appeal it was asserted that the car actually belonged to Mr Parnwell’s father). They had hunting dogs and a substantial amount of hunting equipment. When they reached the forest, they taped the registration plates of the vehicle so as to prevent it being identified. They cut through a locked gate with a battery-powered grinder owned by Mr Parnwell and entered the forestry block with the car lights turned off.

[6] The forestry manager saw these events and called the police. The men were on the property for about five hours. They pleaded guilty on the basis of a summary of facts that asserted they were taking steps to actively avoid the police but on appeal maintained through counsel that they had no way of knowing whether the lights they could see were those of the police or simply other (unlawful) hunters. It appears that they did not kill any animals and were eventually located sitting in their vehicle close to the point they had entered the forest. They had with them five pig dogs, three rifles, knives and other assorted hunting equipment.

Changes to the penalty regime for unauthorised hunting

[7] The penalty for unauthorised hunting under the Wild Animal Control Act

1977 was substantially increased in 2013.⁴ Previously s 39(2) imposed a fine not exceeding $10,000 for an individual and $80,000 for a body corporate on any person who committed the offence of unauthorised hunting under s 8(2) “in carrying out a wild animal recovery operation”. A wild animal recovery operation essentially involved hunting with the use of aircraft.⁵ This is not the kind of offending that is the subject of this case. The penalty for unauthorised hunting of the kind the appellants were guilty of was provided for in s 39(3), which imposed a fine not exceeding $500 for a first offence and $1,000 for a second or subsequent offence by an individual, and $1,000 for a first offence and $2,000 for a second or subsequent

_{offence by a body corporate.}

⁴ Conservation (Natural Heritage Protection) Act 2013, Part 5, which amended s 39 of the Wild

_{Animal Control Act 1977.}

⁵ Wild Animal Control Act 1977, s 2.

[8] The 2013 amendment removed the distinction between unauthorised hunting in the course of a wild animal recovery operation and unauthorised hunting simpliciter. The maximum penalty for any offence against s 8(2) is now a term of imprisonment not exceeding two years, or a fine not exceeding $100,000 for an individual, and a fine not exceeding $200,000 for a body corporate.

[9] This appeal is, it appears, the first to consider the application of the new penalty provisions.

The District Court sentencing

[10] Judge Ingram treated deterrence as the primary consideration, placing considerable weight on the increase in penalty:⁶

Now it seems to me that I must take cognisance of Parliament’s recent increase in the penalties. In my view a substantial deterrent penalty is required for those who offend in the way that you have.

The first point to make is that I consider that the power of confiscation which can and should be exercised in all but exceptional cases to bring home to those concerned that they take a serious risk every time they step onto private land without a permit to hunt.

And later:⁷

For the benefit of everybody concerned, I simply want the community at large to understand. The penalties have been substantially increased under the legislation and taking my cue from the observations from the Court of Appeal and the High Court in all the occupational safety and health cases, I consider it my duty to impose a very substantial penalty when Parliament has very recently increased the penalties so substantially ... That means confiscation of everything, including the motor vehicle if you set out deliberately to hunt illegally on someone else’s land.

[11] The Judge considered that the circumstances of the offending justified confiscation of the vehicle. He noted in particular the steps taken to disguise the vehicle, the use made of it in evading patrols and the steps taken to cut the gate in order to get the vehicle onto the property. He regarded the issue of confiscation as analogous to the confiscation of boats in relation to fisheries offending. Further, whilst he acknowledged that, in general, confiscation of boats from first offenders is

_{unusual, he distinguished those cases from the present case where active steps had}

⁶ _{At [11]-[12].}

⁷ At [24].

been taken to disguise the vehicle and where the gate had been damaged in order to enter the property.

[12] Continuing his theme of deterrence, the Judge went on to conclude that confiscation of the hunting equipment was appropriate. He then turned to the question of penalty. The Judge considered that an appropriate fine for the offending would have been something in the order of $20,000 but rejected this as unrealistic, given the probable means of the offenders. He concluded that a sentence of community work was the right sentence and that 400 hours of community work was the appropriate starting point.

[13] The Judge then discounted the starting point to take account of the offenders’

guilty pleas and the fact that their property was being confiscated.

Confiscation of the car

[14] Mr Franklin invited me to approach this issue on the basis that the vehicle did not, in fact, belong to Mr Parnwell but to his father, and sought to produce the registration certificate. That was opposed by the Crown on the basis that it was not sufficiently reliable evidence and, furthermore, Mr Parnwell had approached the sentencing on the basis that the vehicle was his and had obtained a reduction in his community work sentence to reflect the confiscation of the vehicle.

[15] I note here that the Judge did not make it clear whether he was ordering forfeiture of the vehicle under s 13(2) of the Wild Animal Control Act 1977 or confiscation pursuant to s 128 of the Sentencing Act 2002. Mr Jenson, for the police, pointed out the practical difference between these two, namely that if confiscation was ordered under the Sentencing Act Mr Parnwell’s father would have the right of appeal under s 129EA on grounds of hardship. No similar provision exists under the Wild Animal Control Act. For the reasons I come to, this issue is not material to the present appeal and I note it only because it may be relevant in future cases.

[16] I am not satisfied that the Judge took the wrong approach as to ownership of the vehicle and do not intend to interfere with that aspect of the decision. There is, however, cause for concern about the confiscation itself. The Judge accepted

Mr Franklin’s submission that, in general, confiscation of boats under the fisheries legislation does not occur for first offenders and that, by analogy, it would be unusual for confiscation to occur in relation to a first offender in this context. Notwithstanding that acknowledgement, the Judge viewed confiscation as a step to be taken in all but exceptional cases. I do not think that this is correct. Confiscation is a significant step and one to be determined upon consideration of all the relevant factors in the particular case. I do not consider that the level of criminality of which Mr Parnwell was guilty justified this response.

[18] First, although the vehicle was, self-evidently, an essential element in the offending, providing the vehicle did not, in itself, make Mr Parnwell’s culpability so much greater than those of his co-offenders as to warrant a significant penalty of this kind. In particular, it was Caleb and Jack Benson who had the knowledge of the area and how to access it. I consider that they ought to be viewed as equally culpable with Mr Parnwell, even though they were younger. Secondly, Mr Parnwell has no previous convictions of any kind, a factor that was not identified by the Judge and for which, it appears, no specific credit was given. In these circumstances confiscation of the vehicle was unduly harsh. The appropriate sentence was one of community work at the same level as Mr Lang.

I do not, however, consider that the Judge erred in making the order for destruction of the hunting equipment. It was certainly open to him to do so and is a significant step in relation to the deterrent effect.

The starting point

[19] The next ground of appeal is that the starting point taken was too high. The Judge indicated that a notional starting point, had a fine been appropriate, would have been $20,000 or 20 per cent of the maximum penalty. The starting point actually taken, having regard to the defendants’ means, was 400 hours’ community work, the maximum number of hours possible.⁸

[20] In addition, Mr Franklin submitted that the sentences imposed were excessive

_{having regard to the sentence of 100 hours’ community work imposed on Caleb}

⁸ Sentencing Act 2002, s 55(2).

Benson, who had previous convictions for this very kind of offending. In the circumstances of the case that sentence is to be regarded as lenient and a lenient sentence imposed on another offender is not grounds for interfering with a sentence that is within range.

[21] As I discussed, the Judge identified deterrence as the major objective in sentencing for this offending, although he made no specific reference to the purposes of sentencing under s 7 of the Sentencing Act, nor of the principles under s 8. In my view the Judge was right to emphasise deterrence. Generally, a significant increase in penalty can be safely taken as a signal that Parliament intended greater deterrence as a result. In this case that is borne out by the Hansard record of the second reading of the Conservation (Natural Heritage Protection) Bill which records the following

comments by Nicky Wagner MP:⁹

The recommended penalty levels will deter potential offenders from carrying out illegal activity, result in similar offending facing similar consequences, be consistent with other relevant legislation, be consistent with international best practice and provide serious consequences for serious offending against our natural heritage ...

The Member acknowledges that a lot of conservation offending may be in the lower range of seriousness. However, we are determined to provide the courts with a suitable upper level to ensure that serious offending is treated seriously by the court. We have seen too many examples in recent times where penalty levels may have been insufficient to reflect the seriousness of the offending that happened.

The new higher penalty levels will provide courts with broader parameters for sentencing which will have most effect on serious offending. The Bill also increases flexibility and provides broader sentencing options by providing for community work as an alternative sentence. New penalties, with an option for imprisonment, also allow for sentences of imprisonment or a fine or both. This provides the courts with maximum flexibility to determine what is fair and appropriate in any particular circumstances.

[22] Baragwanath J’s decision in East Bay Heli Services Ltd v R also provides helpful comments on the approach to sentencing for this type of offending, though that case was decided under the previous penalty regime for unauthorised hunting while carrying out a wild animal recovery operation and involved much more serious

offending in that it was done for commercial gain.¹⁰ Baragwanath J viewed the

_{major sentencing consideration as being that of deterrence which carried with it the}

⁹ _{(4 September 2013) 693 NZPD 13280.}

¹⁰ East Bay Heli Services Ltd v R HC Rotorua AP53/03, 13 November 2003.

elements of denunciation, protecting the community and holding the offender accountable.

[23] In this case, although there was no error in the Judge’s emphasis on deterrence, I am not satisfied that all the relevant considerations were taken into account. In particular under s 8 the Court was required to take into account the gravity of the offending, including the degree of culpability of the offender and the desirability of consistency with appropriate sentencing levels.

[24] It must be said that the offending in this case was not of the most serious kind. It did have serious elements about it; the defendants and their associates forced their way onto the land and remained there for some five hours. However, there was no evidence of firearms being discharged or any animals shot. It was not asserted that there was any danger to those lawfully on the land. In the circumstances I would describe the offending as moderately serious.

[25] There is very little in the way of comparable cases. Bliss v NZ Police, which concerned similar offending, resulted in a $400 fine and the payment of police expenses.¹¹ However, that offending occurred in 2012 and therefore came under the previous sentencing regime. For that reason it is of little assistance. Mr Franklin also provided information drawn from media reports of more recent cases, two of which related to offending that occurred before the increase in penalty. However,

without the Judges’ sentencing notes it is difficult to draw anything meaningful from the media reports.

[26] I find the comparison of the notional fine with the 400 hours’ community works selected as a starting point to be unhelpful. The $20,000 fine was at the lower end of the spectrum of available fines, whereas 400 hours’ community work was at the top of the available penalty in terms of that sentence. It is difficult to identify a real correlation. Further, whilst a starting point of 400 hours’ community work is certainly stern, it is the final sentence that really matters and I do not consider that

_{the Judge erred in this.}

¹¹ Bliss v NZ Police [2014] NZHC 2472.

[27] There can be no complaint about the substantial discount given for the guilty pleas in either case. I consider that the end sentence of 250 hours’ community work imposed on Mr Lang was within the range that could properly have been imposed. In relation to Mr Parnwell, the quashing of the order confiscating his car must lead to an adjustment of his community work sentence upwards because the reduction to reflect that penalty is no longer warranted. I have already expressed my view that the culpability of the appellants is very similar and I consider that a sentence of 250 hours’ community work is appropriate for Mr Parnwell also.

[28] Overall I consider that these sentences of community work, coupled with destruction of the hunting equipment, are appropriate to reflect the appellants’ culpability in this case.

Result

[29] In relation to Mr Parnwell:

(a) The appeal against confiscation of the car is allowed. The order for confiscation of the car is quashed.

(b) The appeal against destruction of hunting equipment is dismissed.

(c) The sentence of community work is quashed and substituted with a sentence of community work of 250 hours.

[30] Mr Lang’s appeal against confiscation of the hunting equipment and against

_{the sentence of community work is dismissed.}

P Courtney J