D'Esposito v Ministry for Primary Industries
[2018] NZHC 1529
•25 June 2018
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI 2017-441-23
[2018] NZHC 1529
BETWEEN ANTONIO GIOVANNI DʼESPOSITO
Appellant
AND
MINISTRY FOR PRIMARY INDUSTRIES
Respondent
Hearing: 4 September 2017 and 2 May 2018 Counsel:
R B Squire QC and K Proctor-Western for Appellant Mitchell for Respondent
Judgment:
25 June 2018
JUDGMENT OF ELLIS J
[1] Part 12 of the Fisheries Act 1996 (the FA) establishes an observer programme. The purposes of the programme are important. They are stated in s 223 to be the collection of reliable and accurate information:
(a)for fisheries research, fisheries management, and fisheries enforcement;
(b)about vessel safety and employment on fishing vessels; and
(c)about compliance with maritime rules relating to pollution and the discharge of waste material from vessels.
DʼESPOSITO v MINISTRY FOR PRIMARY INDUSTRIES [2018] NZHC 1529 [25 June 2018]
[2] Section 224 requires that, before placing one or more observers on a vessel, the Chief Executive of the Ministry of Primary Industries (MPI) is required to give reasonable notice of his intention to do so. Once such notice is given, it is an offence to cause or allow the vessel to put to sea without having on board the specified observers.
[3] On 19 July 2014 Danielle 32841 (the Danielle), a vessel owned by a company of which the appellant, Mr D’Esposito, was the Managing Director, was put to sea without an observer, in apparent breach of a s 224 notice. Charges were laid against Mr D’Esposito, Mr Robert Harvey (the skipper), Mr Wakefield (the vessel manager) and others. After a trial before Judge Henwood, Mr D’Esposito and Mr Harvey were convicted.1 The Judge ordered Mr D’Esposito to pay a fine of $5000.2 The Danielle was forfeit to the Crown as an automatic consequence of the convictions.3
[4] Mr D’Esposito appeals his conviction and, in the event that that appeal does not succeed, the forfeiture of the Danielle and the refusal of his application for a discharge him without conviction.
Background
[5] Mr D’Esposito is the managing director of Esplanade No 3 Ltd (Esplanade), the managing director of Danielle Fishing Enterprises Ltd (Danielle Fishing) and other companies in the Hawke’s Bay Seafoods group of companies (the HBS Group). Any fishing done by the Danielle was pursuant to a fishing permit issued to Esplanade.
[6] Mr Wakefield was employed by the HBS Group as a vessel manager. He was responsible for vessel operations, safety, maintenance, and assisting skippers with compliance for the HBS Group fleet.
1 Ministry for Primary Industries v Antonino Giovanni D’Esposito [2017] NZDC 8579 [conviction decision].
2 Ministry for Primary Industries v Antonino Giovanni D’Esposito [2017] NZDC 15700 [sentencing decision].
3 The Judge declined to find any “special circumstances” that might have justified declining to make the forfeiture order.
[7] After several unsuccessful attempts to have observers placed on vessels owned and operated by members of the HBS Group by consent, on 9 July 2014 a notice of intention to place an observer on the vessel Danielle was emailed to Mr Wakefield, copied to Mr D’Esposito. As noted earlier, the notice was issued pursuant to s 224 of the FA, which provides:
224 Chief executive to give notice of intention to place observer on vessel
(1) Before placing any observer on a vessel, the chief executive shall give the owner, master, operator, or licence holder, of or in respect of the vessel, reasonable notice of his or her intention to place observers on the vessel.
(2) Upon receipt of a notice given under subsection (1) of this section, no person shall cause or allow the vessel to which the notice relates to put to sea without having on board the number of observers specified in the notice given under that subsection.
(3) Every person commits an offence and is liable to the penalty set out in section 252(3) of this Act who contravenes subsection (2) of this section.
(4) For the purposes of this section, the term reasonable notice means a notice in writing that specifies a date, not earlier than 5 days after the date of service of the notice, on or after which the vessel is not to be put to sea without having on board the specified number of observers; or such other period or type of notice as may be agreed between the chief executive and the owner, master, operator, or licence holder.
[8] There is no dispute that the notice was received by Mr D’Esposito and Mr Wakefield, although Mr D’Esposito said he did not open the notice of intention attached to the 9 July email. He did, however, discuss its requirements with Mr Robert Harvey and Mr Wakefield.4
[9]The notice advised (inter alia):
The requirement for placement of an observer on the vessel applies to all fishing trips from the first port departure of the vessel on or after the 14th of July 2014.
To avoid delays in the vessel’s departure, please inform the Fisheries Observer Officer James Andrew of the intended date, time, and Port of the vessel’s departure on 021 915 623 01 or DDI 04 894 3484.
4 Conviction decision, above n 1, at [54] – [55].
Please note that upon receipt of this notice, the vessel cannot be put to sea without having an Observer on board, unless expressively authorised to do so in writing by MPI. It is an offence under section 224(3) of the Act to fail to comply with this notice and the vessel owner, master or operator may be liable for a maximum fine of $250,000 and the vessel may be forfeit to the Crown.
[10] The usual skipper of the Danielle was Mr Steve Harvey but it seems that at the material time he was ill and had been admitted to hospital in Gisborne. His brother Robert (who had been engaged on contract as a skipper for the HBS group since 2010) agreed to take over as skipper during his absence.
[11] On receipt of the notice, Mr Wakefield emailed Mr Andrew from MPI’s Observer Services Unit (OSU) advising him of the Danielle’s change in skipper, and that he would update OSU when the next sailing was arranged. That email was also copied to Mr D’Esposito. However, on 19 July the vessel sailed from Napier without an observer on board. Mr Robert Harvey was the skipper on that day.5
[12] Charges under s 224(3) of allowing the Danielle to put to sea without an observer on board were subsequently laid against:
(a)Esplanade;
(b)Mr D’Esposito;
(c)Mr Wakefield; and
(d)Mr Robert Harvey.
The trial in the District Court and Judge Henwood’s decision
[13] A statement under s 9 of the Evidence Act 2006 was agreed between the prosecution and the defence prior to trial. It recorded (inter alia) that:
(a)the owner and operator of the Danielle was Danielle Fishing, against whom no charge had been laid;6
5 It is not in dispute that an Observer was taken on the Danielle’s next voyage.
6 This conflicted with other information presented during the trial which suggested that Esplanade
(b)Mr D’Esposito was a director of Esplanade and “has at all material times held the position of Managing Director within the HBS Group including the Danielle Fishing Enterprises Limited Company”; and
(c)the s 224 notice was received by the Mr D’Esposito “as a director of the first defendant company” (Esplanade).
[14] At [7] of her judgment, Judge Henwood said that the issues for determination were:
(a)Was there a valid notice in force issued under s 224 of the Fisheries Act when the Vessel Danielle sailed on 19 July 2017 and if so
(b)Did the defendants “allow or cause the” the vessel to be put to sea without the observer on board?
[15]Then (at [8]) she noted that:
The offence is one of strict liability:
(a)No notice has been given by any of the defendants that they wish to turn [sic] the matter on the basis of the defence for violating strict liability,
(b)They raise matters relating to the issues of the individual defendants whether or not they are liable to be prosecuted under s 224 as the prosecution are doing in this case.
…
[16] At [8(a)] the Judge appears to be referring to s 241 of the FA, which confers a potential defence to a charge under s 224. It relevantly provides:
(1)Subject to this section, it is a defence in any proceedings for an offence against this Act (other than an offence against section 231 or section 233 or section 235 or section 257(2) or section 296B(5) or section 296ZC(3)(b) or (c)), if the defendant proves—
(a)That—
(i)The contravention was due to the act or default of another person, or to an accident or to some other cause beyond the defendant's control; and
was the owner and operator of the Danielle.
(ii)The defendant took reasonable precautions and exercised due diligence to avoid the contravention; and
…
(3) A defendant is not, without leave of the Court, entitled as part of a defence provided by this section to rely on any of the matters specified in subsection (1)(a) of this section unless the defendant has, not later than 7 days before the date on which the hearing of the proceedings commences, served on the prosecutor a notice in writing identifying the person or the nature of the accident or cause relied on by the defendant.
[17] As regards [8(b)], my understanding is that Mr D’Esposito’s contention at trial was that he could not have committed an offence under s 224(2) because its operation was limited to any of those persons specifically referred to in s 224(1) by whom a notice had been received. In other words, the offence provision could not apply to him because he was he not either the owner, master, operator or licence holder of the Danielle.
[18] Judge Henwood found that the notice dated 9 July 2016 was a valid notice under the FA. But she also found that:
(a)based on the s 9 statement, Esplanade was not the owner of the Danielle
and so could not be guilty of an offence under s 224; and
(b)Mr Wakefield was neither the owner, master or operator of the Danielle
and so also could not be guilty of an offence under s 224.
[19]There is no challenge by the Crown to those findings on appeal.
[20] As a matter of logic, the same point would operate to exonerate Mr D’Esposito; he was not the owner, master or operator of the Danielle either. But when the Judge came to consider his position there was a change of tack. After setting out the evidence about Mr D’Esposito’s knowledge of the notice and what he said or did in response to it, the Judge’s findings were as follows:
[61] So there can be no doubt that [Mr D’Esposito] is a director of the company, Danielle Fishing Enterprises Limited. He knew about the observer notice, he was served with it. The observer notice was addressed to Mr Wakefield, but it clearly was about the boat Danielle, which is one of the
boats that fish to the fishing permit of Esplanade No 3 Limited and the owner of the boat, Danielle Fishing Enterprises Limited. [Mr D’Esposito] is the director of both companies;
[62] He said in his evidence that he did not open the letter of notice, nor did he read it, nor did he know until after the event that there was any sort of penalty for not complying, which seems extraordinary given the level of responsibility that the director of this fishing company has.
[21] It is at this point that matters take a new turn. At [63], the Judge refers for the first time to s 246 of the FA, which (as she records) provides:
246 Liability of directors and managers
(1)If a body corporate commits an offence against this Act, every director, and every person concerned in the management of the body corporate, also commits an offence if it is proved that—
(a) The act or omission that constituted the offence took place with the director's or person’s authority, permission, or consent; or
(b) The director or person knew or should have known that the offence was to be or was being committed and failed to take all reasonable steps to prevent or stop it.
(2)Every person to whom subsection (1) applies is liable on conviction to the appropriate penalty specified by this Act in respect of the provision creating the offence.
(3)A person may be convicted of an offence against this section even though the body corporate has not been charged with that offence or a similar offence.
[22] No reference had been made to s 246 in the relevant charging document. It is also important to record that, while the Judge makes no mention of this in her judgment, the prosecutor had filed a memorandum (after the trial finished) in which she expressly eschewed any reliance by MPI on s 246.
[23]The Judge then went on:7
[64] [Mr D’Esposito] is a director of Esplanade No 3 Limited, but because Esplanade No 3 Limited is shown in these proceedings as the permit holder and it has now not been proven that it is the operator of the vessel due to the quality of the evidence. The Body Corporate in terms of s 246 is the company Danielle Fishing Enterprises Limited as the owner and operator of the vessel. It is clear that the second defendant can be prosecuted as a director of Danielle Fishing Enterprises Limited because he is a director of that company. Section 246(3) states that a person may be convicted of an offence even though the Body Corporate has not been charged with the offence or similar offence.
[65] Mr Wakefield took service of the notice. He was the go-to person for the OSU in managing the vessel Danielle, but not to make him personally liable on this unique occasion.
[66] The director of the company, [Mr D’Esposito], however, is in a different position. He is a director of the company which the s 9 evidence agreement states is, the owner and operator of the vehicle, Danielle Fishing Enterprises Limited. So he can be prosecuted and a conviction can be entered against him pursuant to s 46(3) [sic], even though Danielle Fishing Enterprises Limited is not being prosecuted as owner of the vessel…
[67] On the facts and before the Court listening to all the evidence of the second defendant, including his interview with Fisheries Officer Powhiri [sic], the Court has, reached the conclusion that the second defendant could not be said to have taken all reasonable steps to prevent or stop the offence being committed; that is the boat leaving without an observer in terms of the notice. I have to note that the second defendant was served with the notice, but did not even read the document and so did not take adequate responsibility for the contents of it, even though the email was addressed to him and the notice concerned the boat Danielle, registered no. 32841. The Court has a clear view, and finds as a fact, that there were some conversations that took place between the skipper and the second defendant, when the skipper told him he did not want to take an observer on the vessel He knew there were issues of possible non-compliance around this notice.
[68] The Court accepts that the second defendant told Mr Wakefield and Robert Harvey that he had to take an observer, but there is a very clear doubt in the nature of the conversations with either of them that the skipper was formally and absolutely compelled to take the observer out on this particular occasion. The notice is very clear about the dates and the notice gave in a very explicit instruction as to what to do, or to notify OSU for some change in arrangements. The director issued no instructions to Mr Wakefield to take action to formalise anything beyond the vaguest of conversations that cannot be taking all reasonable steps to prevent or stop the boat Danielle leaving without an observer. He [sic] Court finds that he “allowed the vessel to be put to sea without an observer on board on19 July 2017".
[69]So the case is proven beyond any doubt against the second defendant.
7 Emphasis added.
The grounds of appeal
[24] Mr Squire QC submitted that the Judge found Mr D’Esposito guilty of an offence with which he had not been charged and which he did not have an opportunity to defend (for example, by relying on s 246), in breach of natural justice.
[25] Mr Squire’s other criticism of the Judge’s analysis was that the conviction of an officer or director under s 246 is predicated on the Court first satisfying itself that the relevant body corporate also committed an offence against the Act (albeit that the body corporate does not itself need to be charged with an offence). Although it might reasonably be assumed that the Judge thought that Danielle Fishing (as the owner and operator of the Danielle) did commit an offence under s 224, she nowhere records that view or her reasons for it.
The first appeal hearing and the Court of Appeal’s decision
[26] Mr D’Esposito’s appeal was scheduled for hearing before me on 4 September 2017. During the hearing, my attention was drawn by Mr Squire to a recent decision by Simon France J which addressed the operation of s 246 in relation to another appeal by Mr D’Esposito. Essentially, he held that s 246 did not create a discrete offence provision but was, rather, a “gateway” to liability under other sections of the FA. Mr Squire advised that his decision was the subject of an application by Mr D’Esposito for leave to appeal to the Court of Appeal. Simon France J’s judgment was not made available to me until after the hearing.
[27] After the conclusion of the hearing and while I was in the course of writing this judgment I issued a minute expressing the view that, for reasons it is unnecessary to detail here, it would be preferable to await the decision of the Court of Appeal on the s 246 issue. I expressed the view that my preference would be to permit counsel to make further submissions (if necessary) at a resumed hearing after the release of the judgment.
[28] The Court of Appeal’s decision was released on 21 February 2018.8 The Court disagreed with Simon France J’s conclusions, saying:
[34] The consequence is that the appeal must be allowed. Section 246 creates an independent offence and requires distinct charging. It is common ground that if s 246 is a distinct offence, the charges are not properly drawn for the purposes of ss 16 and 17 of the Criminal Procedure Act 2011.
[35] However, we leave open the question of whether the present charges can be amended. That was not addressed in the Court below. It is a matter to be determined if and when it arises. A decision on any such application is subject to full rights of appeal and those should not be subverted by speculation at this juncture.
[29] The Court had earlier noted that charges laid under provisions other than s 246 but relying on s 246 as a deeming provision attributing criminal liability “may” be nullities.9
[30] Further submissions were filed responding to that judgment by both sides prior to the resumed hearing before me on 2 May 2018. The central planks of Mr D’Esposito’s conviction appeal, however, remained the same.
Discussion: conviction appeal
[31] The starting point is the charging document itself. It describes the offence as “contravenes notice by causing or allowing vessel to be out to sea without an observer on board”, and refers to ss 224(2) and (3) and 252(3) of the FA.10 Unlike the charging document that was considered by the Court of Appeal, it does not refer to s 246 at all.
[32] Next, it is necessary to ascertain what Judge Henwood actually found in her conviction decision. Counsel could not agree about that. The alternatives are that:
(a)she found Mr D’Esposito guilty of an offence under s 224 via the deeming “gateway” of s 246; or
(b)she found Mr D’Esposito guilty of an offence under s 246.
8 D’Esposito v Ministry for Primary Industries [2018] NZCA 9 at [1].
9 At [1] and [33].
10 Section 252 is the penalty provision.
[33] But in either event, Mr Squire said that she should first have amended the charge that Mr D’Esposito faced under s 136 of the Criminal Procedure Act 2011 (the CPA) after giving Mr D’Esposito an opportunity to be heard and satisfying herself that he was not prejudiced by such an amendment.11
[34] In my view, it is option (a) that appears best to capture the Judge’s reasoning here. I think that view sits best with the structure of her reasoning but, more importantly, her final words on the matter. The Judge’s express conclusion that she finds that Mr D’Esposito “allowed the vessel to be put to sea without an observer on board on 19 July 2017” because (inter alia) “he did not take all reasonable steps to prevent or stop the Danielle from leaving” clearly indicates the use of s 246 as a pathway to a finding of liability under s 224.
[35] As well, option (a) is consistent with what appears to have been the prevailing approach of the Ministry at the time. That approach is evident from the decision of Judge Courtney,12 which gave rise to the appeal before Simon France J.
[36] The starting (and possibly end) point is, therefore, that Mr D’Esposito was found guilty of a charge under s 224, not s 246. The absence of any appeal on the Judge’s findings that he did not meet the prerequisites for direct liability under s 224 suggests that his conviction must therefore be quashed.
[37] Even if it can be assumed that the Judge implicitly amended the charge to include reference to the s 246 “gateway”, that would not remedy matters. Putting to one side the points made by Mr Squire noted at [33] above, the Court of Appeal has found that s 246 is not a deeming provision and charges laid that rely on it in that way are not properly drawn.
[38]Mr D’Esposito’s conviction must be quashed accordingly.
11 As required by s 136(2) of the Criminal Procedure Act 2011.
12 Ministry for Primary Industries v D’Esposito [2017] NZDC 3598. This decision was released prior to Judge Henwood’s decision.
Consequential orders
[39] The question then arising is what orders should follow. The standard range of options here are set out in s 233 of the CPA. Those options include the exercise of the powers conferred by s 234, which relevantly provides:
…
(2) The first appeal court may direct that a judgment of conviction for a different offence (offence B), including an offence that the trial court could, in accordance with section 136(1), have substituted for offence A, be entered if satisfied that—
(a)the person could have been found guilty, at the person's trial for offence A, of offence B; and
(b)the trial judge or the jury, as required, must have been satisfied of facts that prove the person guilty of offence B.
…
[40] MPI’s position is that I can and should exercise those powers to substitute a conviction for an offence under s 246 for the quashed conviction under s 224. As the reference (in s 234(2)) to s 136(1) makes clear, in order to do so I must be satisfied not only that the elements of a direct charge under s 246 were proved in the District Court but also that there would be no (retrospective) prejudice to Mr D’Esposito’s defence arising from the substitution.13
[41] As to the first, it is clear from her reasons that Judge Henwood did consider the operation of s 246 and essentially concluded that the elements of that section were made out. That is unsurprising because as noted by the Court of Appeal, viewing s 246 as creating a distinct offence rather than a deeming provision “… does not alter the substantive elements that must be proved. They remain entirely unchanged”.14
13 The power to amend under s 136(1) is contingent on the Court being satisfied of the matters referred to in s 136(2), namely that the defendant will not be or has not been misled or prejudiced by the amendment. If an amendment under s 136 can be made, it also follows that the original charges were not “nullities”. As the Supreme Court’s decision in Dotcom v Attorney-General [2014] NZSC 199, [2015] 1 NZLR 745 at [129] makes clear, whether or not a defect in a document or process is serious enough to take it beyond the protection of s 379 of the CPA and render the document or process a nullity will also depend on whether the defect has caused significant prejudice to the person affected.
14 D’Esposito v Ministry of Primary Industries, above n 8, at [33].
[42] Mr Squire nonetheless submitted that this was not so here, because the prerequisite to conviction under that s 246, namely that a body corporate of which Mr D’Esposito was a director had committed an offence against the FA, had not been met.
[43] Here, the relevant body corporate was plainly Danielle Fishing and the relevant offence provision is s 224. As noted earlier, Danielle Fishing has never been charged under that section but s 246(4) makes it clear that it is not necessary for a charge to have been laid.15 But Mr Squire’s position was that no offence had been committed by Danielle Fishing because no notice had been given to that company in terms of s
224. Although he acknowledged that Mr D’Esposito had received the notice, he said it was only in his capacity as a director of Esplanade, to whom the notice was directed. That was reflected (he said) in the s 9 statement which expressly states that Mr D’Esposito received the notice in that capacity.
[44] I am unable to accept that submission. Mr D’Esposito plainly did receive the notice. He was indisputably a director of Danielle Fishing; he accepted that under cross-examination. He accepted that he had had discussions about the notice with Mr Wakefield. His evidence at trial was that he told Mr Wakefield that the notice was to be complied with. The Danielle was, nonetheless, permitted to put to sea without an observer on board.
[45] Whether, in terms of s 136(2), Mr D’Esposito would have been misled or prejudiced in his or her defence if the charge were to be substituted on appeal is a slightly less straightforward issue.
[46] As recorded earlier, Mr D’Esposito’s defence to the original charge was simply that he did not fall within the ambit of s 224, properly interpreted. As it turns out, he was right about that. Mr Squire says, and I accept, that had he known that he was in jeopardy of a charge under s 246, he might have chosen to run a defence under s 241(1)(a), which excuses liability if a defendant proves that:
(i) The contravention was due to the act or default of another person, or to an accident or to some other cause beyond the defendant’s control; and
15 Presumably this invites the kind of inquiry with which the Courts are familiar in the context of the Criminal Proceeds (Recovery) Act 2009, where “significant criminal activity” rather than any conviction is the relevant threshold inquiry.
(ii) The defendant took reasonable precautions and exercised due diligence to avoid the contravention;
[47] Section 241(3) provides that notice “identifying the person or the nature of the accident or cause relied on” must be served by a defendant on the informant seven days prior to the hearing.
[48] At first glance, the availability of this defence points against substituting a conviction. But in my view the evidence at trial makes it clear that such a defence could not be made out and the Judge made express findings of fact supporting that conclusion. That is because liability under s 246 (which, as I have said, was effectively considered and determined by the Judge) required the Court to be satisfied either that:
(a)the act or omission that constituted the offence took place with Mr D’Esposito’s authority, permission, or consent; or
(b)Mr D’Esposito knew or should have known that the offence was to be or was being committed and failed to take all reasonable steps to prevent or stop it.
[49] The overlap between (b) and the prerequisite for a s 241 defence under subs (1)(a)(i) of that provision could not be clearer. In other words, a finding under
(b) (that Mr D’Esposito failed to take all reasonable steps to prevent or stop the offence being committed) would inevitably preclude a defence under s 241 (because it could not be said that that Mr D’Esposito took reasonable precautions and exercised due diligence to avoid the contravention).
[50] And in the present case it is plain from [67] and [68] of Judge Henwood’s decision that she found (b) to be proved. The second precondition for a defence under s 241 could not, therefore, be met. The steps that Mr D’Esposito could and should have taken to avoid the contravention were explored at trial and the Judge found them wanting. It is not therefore possible to conclude that there is any genuine risk of prejudice arising from the absence of any direct focus on s 241. Accordingly, I consider that a charge under s 246 should be substituted under s 234 because:
(a)Mr D’Esposito could have been found guilty, at his trial for an offence under s 224, of an offence under s 246; and
(b)the trial judge was satisfied of facts that prove Mr D’Esposito guilty of an offence under s 246.
[51] It is therefore necessary to consider the appeal against penalty (sentence and forfeiture).
Sentence/penalties appeal
[52]Section 254 of the FA states that:
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 against the commission of such offences.
[53] Section 246(2) makes it clear that the penalty for an offence against that section is the same as for the relevant offence committed by the body corporate of which the defendant is a director or manager which, here, is s 224. Thus, the relevant penalty is that which is contained in s 252(3), namely a fine not exceeding $250,000. The same provision governed Mr D’Esposito’s original sentencing following his conviction under s 224.
[54] For offending where the maximum fine is greater than $100,000 forfeiture is dealt with under s 255C(2), which relevantly provides:
The following are forfeit to the Crown unless the Court for special reasons relating to the offence orders otherwise:
…
(c)any property used in the commission of the offence; …16
16 Section 255 defines “property used in the commission of the offence” as including any vessel used in respect of the commission of the offence.
[55] General rules relating to forfeiture are set out in s 255E. Subsection (4) imposes specific additional requirements in relation to applications for a discharge without conviction in forfeiture cases. It provides:17
No person may be discharged without conviction in respect of an offence referred to in any of sections 255A to 255D unless the Court for special reasons relating to the offence considers that the property, illegal fishing gear, fish, any proceeds from the sale of such fish, and quota should not be forfeit.
Judge Henwood’s decision
[56] At sentencing in the District Court, Mr D’Esposito submitted both that there were “special reasons” under s 255 which would justify making a non-forfeiture order and that he should be discharged without conviction.18
[57]Judge Henwood held there were no special reasons. She noted:19
… I scoured the case, but I could see no special reasons here whatsoever. It seemed to me, just business as usual. The notice was served, you people discussed it, did not do much about it, no action was taken by Mr Wakefield. Mr Harvey was determined to go with the boat and he said he had no obligation to ring Mr Wakefield to say when he was leaving. So the whole thing was taken, I think, a very casual way considering the penalties that are likely to flow on something such as this.
[58] In response to the submission that a special reason existed because “there was no intention on [Mr D’Esposito’s] part to offend”. In response to this, she said:20
… I am not making explicit finding that you deliberately set out to flout the Primary Industries over this matter, but my decision speaks for itself that I was less than impressed with the steps that were taken and so I cannot find that a special reason. I cannot see any special reasons, it is just business as usual and very ordinary. Bad outcome but that is just what happened.
[59] The Judge then addressed the question of a discharge without conviction pursuant to s 106 of the Sentencing Act 2002. In finding that it was not, she noted that “… There can be no s 106. You have got previous convictions under the Act and
17 By ‘additional” I mean over and above the usual requirements for such a discharge contained in s 106 of the Sentencing Act 2002.
18 Sentencing decision, above n 2, at [10].
19 At [11].
20 At [12].
indeed you need special reasons for that to come into play”.21 She then went on to say:
[14] So what I have taken into account is that your convictions were a long time ago, but there they are, and then there has been another breach of regulation in 2010 which is disappointing now we have this which will be inevitably a conviction. It is the first time whenever your companies have offended against this section. It is an unusual section, and maybe there was some confusion or lack of clarity, but just how serious the consequences of failing to make sure that this action was adhered to.
[60] After fining Mr D’Esposito $5000 plus court costs of $130 she said, “there is an order for forfeiture unfortunately under the Fisheries Act and that is my decision”.22
[61] For reasons that will become evident it is also relevant to note that, in sentencing Mr Harvey on the same day, the Judge also refused to discharge him without conviction and fined him $5000. But she noted that there would be no order for forfeiture because Mr Harvey did not own the boat.23 Mr Squire submitted, and I accept, that that statement was wrong in law; absent special circumstances, s 255C(2) makes it clear that forfeiture is an automatic consequence of his conviction, irrespective of who owns the property in question.
The forfeiture appeal
[62] Mr Squire submitted that the Judge’s refusal to order non-forfeiture was wrong because:
(a)The sentencing decision rather than the forfeiture order itself, identified the particular property that was to be forfeit.
(b)The Judge did not formally enter a conviction against Mr D’Esposito, either in her conviction decision on 20 June 2017, or in her sentencing on 17 July 2017. Rather, she simply records that the charge against him has been “proven”. This infringes s 255E(3) of the FA, which requires
21 At [13].
22 At [16].
23 Ministry of Primary Industries v Harvey [2017] NZDC 15588 at [7].
determination of items forfeited to the Crown “at the time of conviction”.
(c)In the absence of a conviction being formally entered the Judge did not have the power to make the forfeiture order because (absent special reasons) forfeiture is an automatic consequence of conviction under s 255C(2)(c). This point is underscored by the Judge’s failure to appreciate that forfeiture of the Danielle was also the automatic on Mr Harvey’s conviction.
[63] Mr Squire further submitted that, in any event, the Judge was wrong not to find the existence of “special reasons”. He said that while a “special reason” is, necessarily, one that is not found in the common run of cases it is not to be equated with extraordinary or exceptional.24 In this case, he submitted that the threshold was met by a combination of the following factors:
(a)Mr D’Esposito was unable to comply with the law because of Mr Harvey’s safety concerns. The evidence was that Mr Harvey was unfamiliar with the Danielle, which was bigger than the vessels he usually skippered, and putting an observer at risk may well, itself, have constituted an offence.
(b)Mr D’Esposito did not intend to commit the offence and, indeed, had (reasonably and properly) employed Mr Wakefield specifically to manage compliance matters.
24 Basile v Atwill [1995] 2 NZLR 537 (CA) at 539.
(c)Mr D’Esposito’s conviction under s 246 was predicated on Danielle Fishing having committed an offence which, in turn, depended on the operation of s 245, whereby Danielle Fishing was merely deemed to be liable for the offence under s 224 committed by Mr Harvey.25
(d)There was no benefit accruing to Danielle Fishing or Mr D’Esposito as a result of the offending because the Danielle had an observer on board on the next trip.
[64] Lastly, although Mr Squire accepted that an absence of proportionality between the gravity of the offending and the forfeiture is not, by and of itself, a “special reason”, he said that it was relevant to the exercise of discretion and favoured its exercise in Mr D’Esposito’s favour here.
[65] These issues can, I think, be dealt with relative quickly. As Mr Squire pointed out, despite what the Judge may have said, forfeiture was an automatic statutory consequence of Mr Harvey’s conviction. Mr Harvey has not appealed either his conviction or his sentence. It seems to me that the vessel would remain forfeit even if I were persuaded that some or all of the special circumstances advanced on Mr D’Esposito’s existed.
[66]But even if I am wrong in that, I consider:
(a)the deficiencies identified at [62] above are cured by ss 376 and 379 of the CPA;26
(b)in any event, it can be inferred from the Judge’s refusal to discharge Mr D’Esposito without conviction that she did, in fact, convict him;
(c)the “special reasons” advanced and recorded at [63] above are inconsistent with the Judge’s factual findings. More particularly:
25 See MAF v Modesto Holdings Ltd HC Invercargill AP4/93, 21 June 1993.
26 Section 376 specifically provides that a person who is sentenced is deemed to be convicted.
(i)There was no evidence to support the defendants’ contention that there would have been a risk to the observer’s safety had he travelled on the Danielle with Mr Harvey.
(ii)The “double deeming” point is undermined by the fact that Mr D’Esposito was, on the evidence, far from without fault. The Judge very clearly found that he was, at best, wilfully blind to the possibility of an offence being committed. Regardless of whether it can fairly be said that he “intended” to contravene the FA, one’s overwhelming sense is that he was cavalier about that prospect.
(iii)Mr D’Esposito knew about the notice and that Mr Harvey might not comply with it. He could have taken steps to ensure that that did not happen but chose not to do so. Mr D’Esposito was undoubtedly in charge; the employment of Mr Wakefield did not give him permission to wash his hands of any compliance issues.
[67]In my view, there were no special circumstances here.
The discharge without conviction appeal
[68] There is no dispute that Judge Henwood considered she was precluded from discharging Mr D’Esposito without conviction by her finding that the special circumstances exception from forfeiture did not apply. That view was based on the wording of s 255E(4) which, to reiterate, provides that no person may be discharged without conviction for an offence such as the present unless the Court for special reasons relating to the offence considers that the property should not be forfeit.
[69] Mr Squire submitted that the Judge’s approach was wrong. He said that in a case such as the present, where the conviction of any one of the original four defendants could have led to the automatic forfeiture of the vessel, a more nuanced approach was required. In a case such as the present, where more than one person is charged in relation to his or her role in the same incident, the Judge’s black and white
approach did not permit appropriate account to be taken of differences between each defendant and the charges they individually faced. And here, even if Mr Harvey’s offending might have warranted forfeiture, it should not follow that Mr D’Esposito’s did. Mr Squire said the use of the word “considers” in s 255E(4) allows for a more flexible interpretation.
[70] At a hypothetical level, there may be some force in that submission. There might be a case where different defendants face different charges based on their own distinct roles in relation to the same incident and there exist special reasons of a mitigating kind in relation to one such offender but not another. But I do not need to determine that now. That is because I have already found that no special circumstances exist in relation to Mr D’Esposito. That conclusion must mean that there can be no special “reasons” for non-forfeiture under s 255E(4).27
[71] And again, even if I am wrong in that, I do not consider that an ordinary application of s 106 of the Sentencing Act would warrant a discharge without conviction here. While Mr D’Esposito was not directly involved in the offending he was, nonetheless, responsible. The underlying objects of the observer regime are important and, it seems, easily thwarted. The buck must stop with those who are best placed to ensure compliance, those such as Mr D’Esposito who are in control of the fishing companies. On any analysis, it could not, in my view be said that the consequences of a conviction outweigh the gravity of the offending here.
Result
[72] Mr D’Esposito’s conviction appeal is allowed, to the extent that his conviction under s 224 of the Fisheries Act 1996 is quashed. But pursuant to s 234 of the CPA a conviction under s 246 of the Fisheries Act 1996 is substituted.
[73]The appeal against forfeiture of the Danielle is dismissed.
27 It is beyond me why the word “reasons” instead of “circumstances” is used.
[74] The appeal against Judge Henwood’s refusal to discharge Mr D’Esposito without conviction is dismissed.
Rebecca Ellis J