Bush v Ministry of Agriculture and Forestry HC Palmerston North CRI-2011-454-39

[2011] NZHC 1883

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2011-454-39

NATHAN JON BUSH

Appellant

v

MINISTRY OF AGRICULTURE AND FORESTRY

Respondent

Hearing:         25 October 2011

Counsel:         P Coles for Appellant

E Killeen for Crown

Judgment:      25 October 2011

JUDGMENT OF WILLIAMS J

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 2:00pm on the 25 October 2011.

NATHAN JON BUSH V MINISTRY OF AGRICULTURE AND FORESTRY HC PMN CRI-2011-454-39 25

October 2011

[1]      Mr Bush was sentenced by His Honour Judge Callander in the District Court to four months’ imprisonment for acquiring a carpet python in contravention of the Biosecurity Act 1993.  Mr Bush argues that the sentence was manifestly excessive.

[2]      The evidence is that Mr Bush acquired this serpent in early 2011.  He kept it in a special glass terrarium in his sleep-out at his mother’s address in Fielding.  On

10 February Mr Bush was arrested on drugs charges and was subsequently sentenced to a term of imprisonment in that respect.   Sometime after Mr Bush’s arrest the serpent escaped the terrarium.  The supposition is that this was made possible by the police search of the sleep-out on the day of Mr Bush’s arrest.  There is no way of knowing whether that was in fact the case.  The snake was found about a month later by Mr Bush’s mother.  She contacted the authorities and the snake was subsequently collected and euthanazed.   It was less than a year old, and, being a constrictor by profession, was not poisonous.

[3]      Mr Bush admitted the snake was his but refused to identify his supplier.

[4]      Mr Bush pleaded guilty to the relevant offence at the earliest opportunity and it was agreed that he should be sentenced immediately.

[5]      His Honour Judge Callander applied a District Court sentencing decision (the only comparable case anyone could find) in Ministry of Agriculture and Fisheries v Mullany.[1]    In that case the offender was convicted of two charges; one of having unauthorised goods in his possession in breach of the Biosecurity Act 1993; and one of knowingly importing a new organism in breach of the Hazardous Substances and New Organisms Act 1996.

[1] DC North Shore CRI-2010-44-972, 9 July 2010.

[6]      Judge McElrea adopted a starting point of two months for the importation count and four months for the knowing possession count.  Credit was then given for the offender’s youth – a discount of 25 per cent – followed by a full one-third

discount for early guilty plea. The end point was three months.

[7]      In this case, as I have said, a final sentence of four months was imposed.  As a starting point this would have been in line with Mullany and, I think, a proper starting point in this case, but His Honour gave no discount for early admission and guilty plea. This seems to have been an oversight.

[8]      This offending is different in kind to the drug offending for which Mr Bush is already  serving  a  term  of  imprisonment.    There  is  no  argument  therefore  that Judge Callander’s imposition of a cumulative sentence in respect of the snake cannot be faulted.

[9]      The  appeal  is  allowed  accordingly  with  the  end  sentence  reduced  by

25 per cent  to  three  months’ imprisonment  to  be  served  cumulatively  with  the

appellant’s sentence for drug offending.

Williams J