Daleszak v Ministry for Primary Industries

[2013] NZHC 2602

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2013-441-000014

[2013] NZHC 2602

BETWEEN

ROBERT DALESZAK

Appellant

AND

MINISTRY FOR PRIMARY INDUSTRIES

Respondent

Hearing:

25 September 2013

Appearances:

M J Phelps for Appellant

K Laurenson for Respondent

Judgment:

7 October 2013

(RESERVED) JUDGMENT OF ANDREWS J

This judgment is delivered by me on 7 October 2013 at 3:30pm pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Solicitors/Counsel:

M J Phelps, Barrister, Hastings (Appellant) Elvidge & Partners, Napier (Respondent)

DALESZAK v MINISTRY FOR PRIMARY INDUSTRIES [2013] NZHC 2602 [7 October 2013]

Background

[1]   Mr Robert Antoni Daleszac (“Mr Daleszac”) admitted breaching the Fisheries Act 1996 (“the Act”) on 28 February 2011, at Wairoa, by fishing when he was subject to a prohibition order. Mr Daleszak was sentenced to 100 hours community work. Pursuant to s 255C of the Act, the items he was using at the time, that is, a Yamaha Big Bear quad bike, two surfcasting rods and a chilly bin, were forfeited to the Ministry of Primary Industries, (“the Ministry”) which administers the Act.

[2] Mr Patrick Daleszak (the appellant) was Mr Daleszak’s son.1  He applied for relief against forfeiture, on the basis that he owned all of the forfeited items, but stored them at his mother’s property, and that his father has used them without his permission.

[3] The application for relief was heard before Judge G M Ross in the District Court at Hastings on 10 April 2013. The Judge’s decision was delivered on 2 May 2013 (“the District Court judgment”).2 The Judge held that  the  appellant  was entitled to partial relief, and made an order for the sale of the quad bike by public auction, and for half of the proceeds to be paid to the appellant and the other half retained as forfeited proceeds. No relief was granted in respect of the fishing rods.

[4]     The appellant has appealed, on the grounds that the Judge erred in declining to order relief, by introducing an element of deterrence that is not provided for in the Act.

The District Court judgment

[5]   The Judge first referred to the provisions of s 256 of the Act, which set out the procedure for deciding an application for relief against forfeiture under the Act. In essence, the Judge was required to:

(a)determine the value of the forfeited property;

1       Counsel advised that the appellant had passed away after the District Court judgment, which is the subject of this appeal, was delivered. The appeal is pursued by his estate.

2       Daleszak v Minister of Primary Industries DC Hastings CRN 110825-00023, 2 May 2013.

(b)determine the nature, extent and value of the appellant’s interest in the property;

(c)determine the costs of the prosecution; and

(d)consider whether to make an order for relief, either in whole or in part, from the effect of forfeiture on the appellant.

[6]  The Judge determined the value of the quad bike as being between $3,000 and $4,000, and the value of the rods to be $250. Having heard evidence from the appellant, the Judge was satisfied that he owned the forfeited items. The Ministry’s costs were in the order of $220. The Judge then turned to consider whether to make an order for relief. The matters to be taken into account were listed in s 256 (7). The relevant matters focussed on by the Judge were:

(a)There was no commercial flavour to the fishing. However, Mr Daleszak was a repeat fisheries offender, and posed a greater danger to the sustainability of fisheries than did other offenders.3

(b)The social and economic effects of forfeiture on the appellant were that unless relief were granted, the loss of property would effectively punish him, an innocent party, as a result of his father’s offending. 4

(c)Mr Daleszak’s previous offending history was a factor of real significance. The Judge referred to eight occasions on which he had been convicted on fisheries-related offending in the period since March 2006. Several convictions had resulted in forfeitures, one of which, in respect of which he was sentenced in March 2011, was of a dinghy owned by the appellant.   The Judge noted that this was a

serious list  of serious  convictions for breaches  of the Act  over  a lengthy period of time, by a persistent and recidivist offender.5

3       At [11](b).

4       At [11](f).

5       At [11](h) and [12].

[7] The Judge then turned to consider s 256(8), which provides that the Judge could not make an order for relief unless he was satisfied that it was necessary to avoid manifest injustice. He referred to the judgment of Rodney Hansen J in Macedonski v Ministry of Fisheries, as to the meaning of “manifest injustice”:6

There can be no serious dispute about what is meant by manifest injustice.  It is clear or obvious injustice.  It is not the same as special reasons.

[8] The Judge then weighed the relevant factors to determine whether manifest injustice would result from forfeiture. Regarding Mr Daleszak, the Judge said that as a recidivist offender he had learned nothing, and posed an ongoing threat to the goals and purposes of the Act. He had used the quad bike against the appellant’s instructions.7 Regarding the appellant, the Judge said that he had not gained anything from the offending, and if relief were not granted, he would lose the value of the forfeited property.  However, he concluded that any enforcement of the appellant’s “do not use” warning to his father would be on an arbitrary basis, and certainly would not be possible when the appellant was away at work.8

[9] The Judge concluded that, in all the circumstances, some relief was appropriate in order to avoid manifest injustice to the appellant. However, the Judge also concluded that as a matter of deterrence, and to ensure that the quad bike was not available to Mr Daleszak, the appropriate order pursuant to s 256(11)(c) of the Act, was to direct that it should be sold at public auction.  The Judge directed that

half of the proceeds of sale were to be paid to the appellant, and half retained as forfeit proceeds.9    No order for relief was made in respect of the rods.10

The procedure for determining applications for relief against forfeiture

[10] Pursuant to s 255C of the Fisheries Act, forfeiture of the property used in the commission of his offence was automatic on Mr Daleszak’s conviction. Section 256 of the Act establishes a staged procedure for determining applications for relief against forfeiture.  The first stage is to determine the value of the forfeited property,

6       Macedonski v Ministry of Fisheries HC Hamilton DRI 2005-419-62, 26 August 2005, at [12].

7       District Court judgment, at [15](a).

8       At [15](b).  (The appellant was employed in commercial fishing, and spent lengthy periods of time at sea.)

9       At [15] and [16].

10 At [17].

pursuant to s 256(6)(a). This is to be the amount the property would realise if sold at public auction. The second step is to determine the nature and extent of the applicant’s interest in the property, pursuant to s 256(6)(b). The third step is to determine the costs to the Ministry of prosecuting the offence, and in seizing and holding the property.

[11] Section 256(7) then provides that after having had regard to the matters set out in sub-paragraphs (a) to (k) of the subsection, the Court may make an order for relief, in whole or in part, from the effect of forfeiture. However, s 256(8) provides that the court may not make an order for relief unless that is necessary to avoid manifest injustice, or to satisfy particular interests relating to quota, unpaid wages of fishing crew, or costs incurred by a third party relating to foreign crews.

Can deterrence be taken into account?

[12] As Mr Phelps, counsel for the appellant put it, the real issue in this appeal is the Judge’s conclusion that forfeiture and sale of the quad bike was required for deterrence. He submitted that the Judge fell into error in concluding that as a matter of deterrence, he could not order the return of the forfeit property to the appellant, an innocent party. He submitted that the Act does not allow the Court considering an application for relief to take deterrence into consideration.

[13] Mr Phelps further submitted that the Judge erred in concluding that forfeiture and sale were necessary in order to ensure that Mr Daleszak would not have ongoing access to the quad bike and rods. In this respect, he submitted that the Judge failed to take account of the appellant’s evidence that if the items were returned to him, they would be stored at a different address.

[14] For the Ministry, Ms Laurenson submitted that the Judge was able to consider deterrence as a factor in the context of an application for relief, as part of considering the purposes of the Act (under s 256(7)(a)), one of which is ensuring sustainability). She also submitted that the Judge was entitled to consider deterrence as part of his consideration of Mr Daleszak’s previous convictions. She further submitted that, in any event, the Judge only turned to consider deterrence after he had concluded that manifest injustice would result if the quad bike were forfeited in its entirety, and was

considering how best to remedy the injustice. At that point, she submitted, deterrence could be considered as a relevant factor in determining the extent of relief required.

[15] This appeal turns on whether the Judge made an error of law in applying the terms of s 256 of the Act. The issue is whether the Judge erred in considering deterrence of Mr Daleszak at two stages: first, when considering whether relief was necessary to avoid injustice (under s 256(7) and (8)); and secondly when considering the nature and extent of relief (under s 256(11)).

Section 256(7) of the Fisheries Act 1996 and its predecessor, s 107C(3)(b) of the Fisheries Act 1983

[16] The forfeiture provisions of the Act are contained in Part 13. Forfeiture after fisheries prosecutions was previously dealt with under ss 107B to 107F in Part VII of the Fisheries Act 1983 (“the 1983 Act”), as amended by s 52(1) of the Fisheries Amendment Act 1990. Under the 1983 Act, as amended, forfeiture was under the jurisdiction of the Minister of Fisheries. Section 107B provided that upon conviction for an offence against the Act, any property used in the commission of an offence was forfeited to the Crown, unless the court for special reasons relating to the offence ordered otherwise.

[17] Under s 107C provided that a person whose property had been forfeited could apply for release of the property, on payment of a sum representing the value of the property, if sold at auction. Section 107C(3)(b) set out, as one of the factors the Minister could consider in relation to releasing forfeited property:

The need for adequate deterrents against the commission of offences against this Act and regulations made under this Act.

[18] The first version of the Fisheries Bill which was ultimately enacted as the Fisheries Act 1996 retained substantially the same provision as s 107C, except that it did not provide for the forfeiture of quota. The explanatory note to the Bill stated that

it substantially re-enacted the provisions of Part VII of the 1983 Act.11 Clause 256 (3)(b) of the Bill amended s107C(3)(b) to read:

(b)           Whether adequate deterrents against the commission of offences against this Act and regulations made under it can be maintained if some or all of the property is returned

[19]    Thus the power of retaining property was specifically directed at deterrence.

[20] When the Primary Production Committee reported on the Bill, it recommended substantial changes to the forfeiture provisions, as follows: 12

We are recommending the addition of clause 254 to provide guidelines to the Court when sentencing offenders. Clause 254 provides for the Courts to take into account the purposes of the Act and have regard to the difficulties in detecting fisheries offences and the need to maintain adequate deterrents against the commission of such offences, when sentences.

... We recommend that the forfeiture provisions in the Bill be restructured and clearly linked to the sentence imposed by the Court.

[21] Section 256 was enacted in the form recommended by the Primary Production Committee. It does not contain any express reference to deterrence. Deterrence is, however, referred to in s 254, in relation to sentencing:

254      Matters to be taken into account by Court in sentencing

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.

[22] In his judgment in Sanderson v Ministry of Fisheries, Judge D J McDonald observed that the need for deterrence had been moved from being a matter that the Minister could take into account on forfeiture (under the 1983 Act) to being, under the current Act, a matter to which the court is to have regard at sentencing.13 His Honour concluded that Parliament had deliberately removed deterrence from the forfeiture stage to the sentencing stage.   He further concluded that, as the list of

factors in s 256 is exhaustive, there is no general provision allowing the court to

11      Fisheries Bill 1994 (63-1) (explanatory note) at (v)–(vi).

12      Fisheries Bill 1994 (63-2) (select committee report) at (xxxii)–(xxxiii).

13      Sanderson v Ministry of Fisheries, DC Whangarei CRI-2005-027-2371, 8 June 2007 at [21].

consider deterrence on forfeiture. His Honour went on to observe that unless deterrence can be sheeted home under one of the provisions of s 256(7), it is not a matter that can be considered on forfeiture.14

[23] Mr Phelps submitted that Parliament intended that deterrence is not to be included as a factor considered at the forfeiture/relief stage, and the Judge in this case was wrong consider it. He further submitted that the sentence of 100 hours community work imposed on Mr Daleszak had reflected the need for deterrence.

[24] Ms Laurenson submitted that the absence of an express reference to deterrence in s 256 does not prevent it from being considered in an application for relief against forfeiture.  She submitted that the regime under s 256, being directed at a court, is quite different from the regime under the 1983 Act, which was directed at the Minister.

[25] I have concluded that Parliament, in enacting the current Act, intended to remove deterrence as a discretionary factor to be considered at the stage of an application for relief, and intended it to be a factor required to be considered at sentencing. The list of factors set out in s 256(7) is exhaustive – the factors are not said to “include” those set out in sub paras (a) to (k), and there is no general provision allowing “other factors” to be taken into account. On the other hand, s 254 expressly requires consideration of deterrence at sentencing. Parliament appears to have deliberately provided for deterrence to be a “sentencing” factor, but not a “relief” factor.

[26] Accordingly, I accept that deterrence was not a factor to be considered in the decision under s 256(7) and (8), whether relief against forfeiture should be allowed in order to avoid a manifest injustice.

Section 256(11)

[27] The issue then is whether the Judge was entitled to consider deterrence when deciding what relief to allow, pursuant to s 256 (11). The Judge concluded that:15

Nonetheless, in all of the circumstances of this case, some relief to [the appellant] as the owner of the quad bike forfeit to the Crown is appropriate to avoid manifest injustice to him. It would appear to be manifestly unjust if, as the owner the machine which facilitated the prohibited fishing, and in ignorance of that fishing, he should be visited with a penalty in financial terms measurably greater than the penalty opposed upon [Mr Daleszak] for the actual offending itself. Equally, however, as a matter of deterrence, and ensuring the unavailability of the particular machine to [Mr Daleszak] for prohibited or other illegal fishing at any stage in the future, the manner of dealing with this matter by an order should ensure that the property is sold, with directions as to the manner of sale and dispersal of the proceeds, in terms of s 256(11)(c) of the Act. …

[28] I accept Mr Phelps’ submission that in deciding what relief should be given to the appellant, the Judge considered the need to deter Mr Daleszak from further offending. I also accept Ms Laurenson’s submission that the Judge was balancing the need for deterrence against reducing the manifest injustice as against the appellant.

[29]     Section 256(11) provides:

(11)Without limiting subsection (7), any order under that subsection may order 1 or more of the following:

(a)the retention of the forfeit property by the Crown;

(b)the return of some or all of the forfeit property to the owner at the time of forfeiture, with or without the prior payment to the Crown of a sum of money;

(c)the sale of some or all of the forfeit property, with directions as to the manner of sale and dispersal of proceeds:

(d)the delivery of some or all of the forfeit property to a person with an interest in the property, with or without directions as to payment of a sum of money to specified persons (including the Crown) prior to such delivery:

(e)the reinstatement (notwithstanding the forfeiture) of any interest that was forfeit or cancelled as a result of a forfeiture.

[30] Subsection (11) does not limit subs (7). The court’s consideration of the orders that may be made as to relief under subs (11) does not limit or restrict in any way the factors required to be taken into account before the Court exercises the discretion as to whether relief should be granted under subs (7). Equally, however, subs (11) is not subject to subs (7). The factors set out in subs (7) do not limit or restrict the order the Court may make under subs (11).

[31] It is significant that subpara (a) of subs (11) provides that one of the orders the Court may make is for the forfeited property to be retained by the Crown.  Thus it appears to be possible for the Court to conclude, after considering the subs (7) factors, that an order for relief is necessary to avoid manifest injustice, but to make an order pursuant to subs (11)(a) that the forfeited property is to be retained by the Crown. Further, the Court could conclude that relief is necessary but order, pursuant to subs (11)(c) that the property is to be sold, and make directions as to the distribution of the proceeds, as occurred in the present case.

[32] The Act does not set out any factors to be considered when the Court is deciding what, if any, relief to order. Subsection (11) does not restrict the Court to the subs (7) factors. Can a need for deterrence be taken into account at this stage when it cannot (as I have concluded) be taken into account when the Court is considering the subs (7) factors?

[33] The Act must be interpreted from its text and in the light of its purpose.16 The purpose of the Act is “to provide for the utilisation of fisheries resources while ensuring sustainability”.17 Deterrence of a recidivist offender under the Act may well be seen as promoting the purpose of ensuring sustainability. Against that, however, deterrence is an express, and mandatory, consideration when the offender is sentenced under the Act.

[34] I have concluded that, as for subs (7) deterrence of the offender may not be considered by the Court which it is deciding what order, if any, to make under subs (11). Parliament’s intention appears to be clear. Any need for deterrence of the offender is to be taken into account on sentencing. It follows that it should not also be taken into account when determining an application for relief against forfeiture.

[35] That conclusion does not render the options available under subs (11) meaningless. There may be reasons, other than a need to deter the offender, which would lead a Court to conclude that forfeited property should be retained by the

16      Interpretation Act 1999, s 5(1).

17      Fisheries Act 1996, s 8(1).

Crown, or that relief in part, only, should be granted. No such reasons were put forward in this case.

Result

[36] I have concluded that the Judge erred in taking deterrence of Mr Daleszak into account when determining the application for relief against forfeiture. Deterrence was, in the context of that process, an irrelevant consideration.

[37]   Accordingly, the appeal must be allowed.  I order that the forfeited property is to be returned to the appellant, subject to the payment of the Ministry’s seizure cost ($220.10) being paid prior to the return.

Andrews J