Cooper v Ministry of Primary Industries
[2020] NZHC 141
•12 February 2020
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE
CRI-2019-416-18
[2020] NZHC 141
BETWEEN MOREHU SHANE COOPER
Appellant
AND
MINISTRY OF PRIMARY INDUSTRIES
Respondent
Hearing: 11 February 2020 Appearances:
L A Scott for the Appellant
L M Marshall for the Respondent
Judgment:
12 February 2020
JUDGMENT OF COOKE J
[1] Mr Morehu Cooper pleaded guilty at the District Court at Gisborne to one charge of inciting the possession of paua taken in contravention of the Fisheries Act 1996.1 Mr Cooper appeared for sentencing in June 2018 and sought to be discharged without conviction. Judge Cathcart declined the application and a conviction was entered.2 Mr Cooper was fined $750.
[2] Mr Cooper appeals the decision declining his s 106 application on the grounds the District Court failed to properly the consequences of a conviction.
Factual background
[3] Customary non-commercial fishing is regulated under the Fisheries (Kaimoana Customary Fishing) Regulations 1998. The Regulations delegate management
1 Fisheries Act 1996, s 232, maximum penalty $10,000 fine and Crimes Act 1961, s 66(1)(d).
2 Ministry of Primary Industries v Cooper [2019] NZDC 11848.
COOPER v MINISTRY OF PRIMARY INDUSTRIES [2020] NZHC 141 [12 February 2020]
authority to tangata whenua, defined under the Regulations as the hapū or iwi who hold mana whenua mana moana over the area.3 Each tangata whenua may nominate Tangata Kaitiaki (guardian) and specify the boundary for the coastal marine area for which the kaitiaki will have jurisdiction.4 After notification and confirmation of the appointment by the Minister, the Kaitiaki have the power to authorise the taking of fisheries resources for customary food gathering pursuant to r 11:
11Power to authorise taking of fisheries resources for customary food gathering
(1) A Tangata Kaitiaki/Tiaki appointed under these regulations may authorise any individuals, in accordance with this regulation, to take any fish, aquatic life, or seaweed for customary food gathering purposes from within the whole or any part of the area/rohe moana, for which the Tangata Kaitiaki/Tiaki has been appointed.
(2) An authorisation made under subclause (1) may require that the taking of fisheries resources is consistent with the tikanga of the tangata whenua of that customary food gathering area/rohe moana.
(3) No authorisation made under subclause (1) has any effect unless it has been made in form 2, and specifies—
(a)the date or dates that the species may be taken; and
(b)the persons who are authorised to take the species; and
(c)the species that may be taken; and
(d)the quantity of each species that may be taken; and
(e)size limits relating to each species to be taken; and
(f)the method by which each species may be taken; and
(g)the area or areas in which the species may be taken; and
(h)the purpose for which the species may be taken; and
(i)the venue at which the catch may be used; and
(j)any other matters concerning customary food gathering the Tangata Kaitiaki/Tiaki may reasonably specify, including instructions for the disposal of any fish, aquatic life, or seaweed taken as an inevitable consequence of taking the fish, aquatic life, or seaweed to which the authorisation relates.
(4) Despite subclause (2), if the Tangata Kaitiaki/Tiaki and the chief executive agree to a process and form of authorisation other than that
3 Fisheries (Kaimoana Customary Fishing) Regulations 1998 s 2 definition of “tangata whenua”.
4 Regulation 9.
prescribed in subclause (2) (which may include, but is not restricted to, the granting of oral authorisations), that process and form of authorisation replaces that prescribed in subclause (2) from an agreed date and for the area/rohe mana described in regulation 9(2)(b), and every authorisation made in that form has the same effect as an authorisation made under subclause (1).
(5) Any authorisation granted under subclause (4) must specify the matters referred to in paragraphs (a) to (j) of subclause (3).
(6) The holder of an authorisation granted under subclause (1) must produce it when reasonably requested to do so by a fishery officer.
(7) Any person to whom an authorisation is granted under subclause (4) must provide details which verify that authorisation when reasonably requested to do so by a fishery officer.
(8) A Tangata Kaitiaki/Tiaki must not accept payment of any kind in exchange for an authorisation.
[4] Mr Cooper is 55 years old and has lived in the Mahia region for the last 15 years. He was nominated as Kaitiaki by the Apa Apa A-Rangi Marae and appointed Kaitiaki to the Mahia Peninsula in 2010.
[5] On 26 December 2015 Mr Cooper issued two customary permits. Each permit allowed for the gathering of 80 pāua for the whānau hui and were required to be harvested between 26 December 2015 and 2 January 2016. The permit holders were recorded as being Jane Ormond and Ryan Ormond.
[6] Mr Jose Ormond and Ms Juneallen Spark, two rumoured poachers, were present at the time the permits were issued. The Summary of Facts records Mr Ormond and Ms Spark had been stood down from receiving authorisations for a three month period. Mr Cooper did not record their names on the permit as associated harvesters but told them that they could gather pāua pursuant to the authorisation as long as they accompanied a permit holder at the time of gathering. This advice was incorrect as only those named and recorded on the customary authorisation are permitted to gather pursuant to the authorisation.5
[7] On 27 December fisheries officers were conducting fisher inspections at a remote beach in the Mahia Peninsula. Mr Ormond and Ms Spark had been diving and when inspected, presented two customary authorisation permits issued by Mr Cooper.
5 Regulation 11(3)(b).
The pair had a total of 107 pāua in their possession. When questioned, Ms Spark explained she had been informed by the Kaitiaki that she was allowed to gather seafood under the permit but could not get one herself as she had been stood down. Mr Ormond said he was helping others named on the customary authorisation to gather.
[8] When interviewed Mr Cooper said he knew she should not have given Mr Ormond and Ms Spark advice that they could gather seafood under the authorisation. He explained he did not record their names on the authorisations as they were stood down from receiving authorisations at the time.
District Court decision
[9] The Judge outlined the facts of the offending and noted Mr Cooper had originally faced additional charges but was discharged on those matters pursuant to s 147 of the Criminal Procedure Act 2011. The Judge then turned to an assessment of the gravity of the offending.
[10] The Judge examined the legal regime for customary fishing and noted it was largely a self-governing regulatory regime placing Kaitiaki at the cornerstone. He observed that “uprightness of kaitiaki is vital to the integrity of the permit system”6 and Mr Cooper’s conduct had to be assessed in that light. The offending “undermined the integrity of the scheme” and his conduct breached that guardianship role.7 The Judge rejected Mr Cooper’s submission that his actions attempted to avoid potential abuse of the system and characterised the offending as the deliberate inciting of two known poachers to circumvent the regulatory regime.
[11] The Judge summarised Mr Cooper’s personal circumstances and noted he was of good character with no previous convictions and had pleaded guilty on the morning of the trial in the context of the withdrawal of the other charges. In terms of mitigating factors, the Judge accepted there was no impact on the fishery given all the seized pāua was returned live to the sea. But he noted that was due “entirely to the intervention of
6 Ministry of Primary Industries, above n 2, at [11].
7 At [12].
the fisheries officer”.8 Overall, the Judge assessed the offending as low to medium level offending.
[12] Turning to the assessment of the direct and indirect consequences of the offending, the Judge accepted there was “a real risk Mr Cooper might be unfairly removed as kaitiaki”.9 That carried with it a loss of reputation within the local marae and extended community. Mr Cooper also argued that if was removed as kaitiaki those with customary entitlements would face difficulty in receiving permits easily as the remaining six kaitiaki for the Mahia peninsula were not as accessible as Mr Cooper. The Judge rejected that was a factor Mr Cooper could advance under s 106 as the focus of the test was on direct and indirect consequences for Mr Cooper, not indeterminate third parties.
[13] Overall the Judge was not satisfied the consequences of a conviction were not out of all proportion to the gravity of the offending.
Relevant law and approach to appeal
[14] Section 106 of the Sentencing Act 2002 provides that if a person who is charged with an offence is found or pleads guilty, the court “may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence”. The application of s 106 is guided by s 107:
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[15]More recently, the Court of Appeal, speaking of the s 107 test, said:10
[11]It is settled that a court considering a discharge under s 106 of the Sentencing Act 2002 should follow a three-step process addressing the guidance given in s 107. These steps are:
8 At [17].
9 At [26].
10 Prasad v R [2018] NZCA 537 (citations omitted).
(a)identification of the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender;
(b)identification of the direct and indirect consequences of conviction; and
(c)a determination of whether those consequences are “out of all proportion” to the gravity of the offence.
Only if that threshold is met can the court move to consider the residual discretion under s 106. There must be a “real and appreciable” risk that any given consequence will happen. This standard recognises that the court is assessing the likelihood of something that may happen in the future.
[16] The appeal is brought under ss 231 and 248 of the Criminal Procedure Act 2011. An appeal against the refusal to grant a discharge without conviction is an appeal against conviction and sentence.11 The basis for determining an appeal against a refusal to grant a discharge without conviction is whether a miscarriage of justice has occurred:12
(a)by virtue of a material error by the sentencing judge in entering a conviction; or
(b)as a result of an error by the judge in applying the principles of discharging an offender without conviction under s 107 of the Sentencing Act 2002.
[17] The Court of Appeal in R v Hughes noted that such an appeal is not an appeal against the discretion of the Court.13 It is a matter of fact requiring judicial assessment and the discretionary power of the court to discharge without conviction arises only if the s 107 threshold has been met.14 Accordingly the normal appeal principles apply as set out in Austin, Nichols & Co Inc v Stichting Lodestar.15
11 Jackson v R [2016] NZCA 627 at [6]–[16].
12 At [12].
13 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.
14 At [28].
15 Austin, Nichols & Co v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141. This approach was confirmed in Brown v New Zealand Police [2019] NZHC 2348; and Sharma v New Zealand Police [2018] NZHC 2471.
Assessment
[18] On appeal Ms Scott for Mr Cooper contends that the District Court was wrong to reject Mr Cooper’s explanation for the offending provided in an affidavit, and also erred in not accepting that the adverse consequences of the conviction were disproportionate given the low seriousness of the offending.
Seriousness of offending
[19] An assessment of the seriousness of the offending is an important aspect of a potential discharge under s 106. Here the Judge correctly identified that he was not confined to the agreed facts set out in the Summary of Facts, and that he was entitled to draw inferences provided they were grounded on established primary facts.16 Applying that approach the Judge did not accept the characterisation of the offending that Mr Cooper had set out in his affidavit. Rather he held that Mr Cooper had “… intentionally incited two known poachers to circumvent the regulatory regime”.17
[20] I accept that the Judge went too far in this description, which is repeated elsewhere in the judgment.18 It is unfair to conclude that the permits were being issued to “two known poachers”. That was not in the Summary of Facts, and there was no information before the Court that suggested that the two persons were known poachers
— for example that they had prior convictions for poaching. Rather the information before the Court was that it was known that there were allegations that they had been selling seafood to undercover Fisheries Officers — that is that they were suspected poachers. Because of those allegations Kaitiaki in the region had decided that their right to be issued permits should be suspended, or as it is recorded in the Summary of Facts that “… they had been stood down from receiving authorisations for a three month period”.
[21] But I also have difficulty with Mr Cooper’s characterisation of his offending as being limited to providing incorrect advice that the persons could take seafood under the permits. I agree with the District Court Judge that he was not obliged to
16 Pokai v R [2014] NZCA 356 at [30]–[31].
17 Ministry of Primary Industries v Cooper, above n 2, at [16].
18 At [4] and [9].
accept that characterisation. The evidence before the Court was that Mr Cooper was one of 28 Kaitiaki in the area, although only six issued permits for customary fishing, and that Mr Cooper was more active given that he was more accessible to people seeking such permits. What is apparent from the Summary of Facts is that it had been determined by the Kaitiaki that permits should not be issued to Jose Ormond and Juneallen Spark because of the allegations that had been made about them which were being investigated. As the Judge concluded, what Mr Cooper did was nevertheless issue permits to allow them to engage in customary fishing.
[22] In addition he issued those permits in the name of their relatives. It seems to me that the obvious inference was that he did so to conceal the fact that he was issuing permits to persons who should not have been issued with them. Ms Scott argued that he was only allowing them to harvest seafood for others. But if that were so they could simply have been named in the permits as people entitled to harvest for the permit holder as the standard form contemplates. As the Summary of Facts records they were not so recorded as fishers as they had been stood down. So the true seriousness of this offending lies in the fact that Mr Cooper was acting inconsistently with the decisions of the Kaitiaki, and that he then hid what he was doing so by issuing the permits in other names. The integrity of the system was accordingly undermined. It seems to me that Mr Cooper’s affidavit does not fully accept the significance of his wrongdoing. The District Court Judge was right to dismiss Mr Cooper’s characterisation.
[23] Ms Scott emphasised that the offending was comparatively minor, reflected in the $500 fine the prosecutor sought, and that the Judge had wrongly re-characterised it as more serious. I accept that from a fisheries resource perspective it may not be regarded as particularly serious offending. Permits were still issued, and if any seafood had been taken under them it would count against the overall customary quota for the region. But the offending is still of significance as it involves an undermining of the integrity of the regime.
Are the consequences out of proportion?
[24] The next consideration is to assess whether the consequences of a conviction are out of all proportion with the gravity of the offence. The main consequence relied upon was that Mr Cooper would be removed as a Kaitiaki if he remained convicted.
[25] The Court received affidavit evidence from Mr Arthur Bowan, one of the Kaitiaki of the Mahia Māori Committee who is the notifying authority for the Mahia Rohe. He explained that whether Mr Cooper would continue in his role as a Kaitiaki would be a decision of the Mahia Māori Committee, but that the Committee would likely follow the recommendation of Mr Cooper’s Marae, the Apa Apa A-Rangi Marae. Mr Hohepa Cooper, the Chairman of the trustees of the Apa Apa A-Rangi Marae explained in his affidavit that whether Mr Cooper was convicted would be of particular importance to their decision. He says his removal as a Kaitiaki was highly likely if convicted, but “… if the Court’s approach is that he is not convicted, then the perception is that it would not warrant him being stood down”.
[26] This evidence was assessed by the Judge. He set out the general background to the Regulations, and the self-governing role of Māori under them. He accepted there was a cognisant risk the defendant would be removed as Kaitiaki, and that there would be a loss of reputation and potential flow-on effects. These included the potential that he would not be able to be issued with fishing permits himself. In his affidavit filed for this appeal Mr Cooper also said that he had been told he should not stand for re-election on the Rongomaiwahine Iwi Trust panel. The possible impacts for the wider community were also referred to given that Mr Cooper is understood to be the most accessible Kaitiaki, albeit the Judge noted that third party impacts were not relevant to the s 107 assessment.
[27] Ultimately the Judge was not convinced that the risk of adverse implications was sufficient to warrant a discharge. He noted that “whether the Marae Committee wishes to allow Mr Cooper to continue his role as Kaitiaki should be based on illegal conduct rather than the entry of conviction alone”.19 I agree with the Judge on this point. The potential consequences of Mr Cooper’s wrongdoing, including any
19 Ministry of Primary Industries v Cooper, above n 2, at [32].
conviction, is a matter for the Mahia Māori Committee and the trustees of the Apa Apa A-Rangi Marae. Further decisions of those bodies will be involved. Mr Cooper’s conviction does not automatically lead to his removal as a Kaitiaki.
[28] The Courts are increasingly recognising the importance of Māori autonomy, and the relevance of tikanga Māori. As the Judge outlined, that autonomy is a key aspect of the Regulations. The Mahia Māori Committee and the trustees of the Apa Apa A-Rangi Marae have the responsibility for deciding whether Mr Cooper should continue as a Kaitiaki. It is right that they should make the decision. When doing so they can be expected to apply the principles of tikanga Māori.
[29] That these bodies should make the decision is particularly appropriate given that the wrongdoing involved Mr Cooper acting inconsistently with the decisions made by the Kaitiaki, and that he concealed that he was doing so by issuing permits in other names. Moreover as the Judge held, this approach undermined the integrity of the system under the Regulations administered by the Kaitiaki. These will no doubt be relevant considerations when the Committee and the trustees make their decisions. These considerations arise whether or not the Court decides to discharge Mr Cooper under s 107. It should not be thought that it is a decision for the Courts to make.
[30] It is of course relevant for the Court’s assessment under s 107 that these adverse consequences may flow from a conviction. But as the Judge recorded these consequences flow from the wrongdoing, and not just the conviction. The essence of the s 106 decision is a finding that the consequence of a conviction are out of all proportion to the seriousness of the offending. Without wishing to prejudice the ultimate decisions made in this case in any way, it might not be thought to be disproportionate for a decision to be made that Mr Cooper no longer be responsible for issuing such permits. But as I emphasise, that is not a matter for this Court. It is for the relevant Māori authorities to decide.
[31] Ms Scott emphasised that the reality was that unless Mr Cooper was discharged he would be removed as Kaitiaki, and that this was the likely affect of dismissing the appeal. She said allowing the appeal would leave these bodies free to make the appropriate decision. But in my view they are free to make this decision whether or
not the conviction remains. It is ultimately a question for them. I am not persuaded that dismissing the appeal removes the possibility that a decision in Mr Cooper’s favour might still be made, or that he might not be removed even if the appeal were allowed.
[32] In his affidavit sworn for this appeal Mr Cooper raises another potential adverse consequence, being the negative impact that the conviction may have on his ability to obtain employment. He is currently unemployed and speaks of a recent job interview where his conviction caused potential concern. But for the moment the extent of such adverse consequences is unclear. Potential employers can be expected to also take into account Mr Cooper’s undoubted good service to the community for many years, and his general good character. He has no previous convictions. This offending was clearly an aberration. It is a one-off matter in the context of a person who otherwise presents as a person of integrity. I accept this factor is relevant, but by itself does not demonstrate that a conviction is out of proportion to the seriousness of the offending.
Conclusion
[33] For these reasons, whilst there are some aspects of the reasoning of the Judge that I do not share, I agree with much of his reasoning, and also agree with the conclusion that he reached. For these reasons the appeal is dismissed.
Cooke J
Solicitors:
Quay Legal, Wellington for the Appellant Crown Solicitors, Gisborne for the Respondent
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