Grigson v Ministry of Fisheries HC Auckland CRI-2011-404-183

[2011] NZHC 1138

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-183

LARRY GRIGSON

Appellant

v

MINISTRY OF FISHERIES

Respondent

Hearing:         19 September 2011

Appearances: Appellant in person

N Walker for the Respondent

Judgment:      19 September 2011

(ORAL) JUDGMENT OF WOODHOUSE J

Solicitors / Parties:

Mr L Grigson, Papakura

Ms N Walker, Meredith Connell, Office of the Crown Solicitor, Auckland

GRIGSON V MINISTRY OF FISHERIES HC AK CRI-2011-404-183 19 September 2011

[1]     The appellant, Mr Grigson, pleaded guilty in the District Court to one representative  charge  under  s 257(2)  of  the  Fisheries  Act  1996  of  knowingly contravening an order prohibiting him from engaging in any activity associated with the taking of fish.   The charge was that Mr Grigson contravened the prohibition between December 2007 and April 2009.  The prohibition had been imposed by the District Court on 15 June 2007.  Mr Grigson also pleaded guilty to one charge of being  in  possession  of  fish  for  the  purpose  of  sale  contrary to  s 192(5)  of  the Fisheries Act.

[2]      On 13 May 2011 Judge Andrée-Wiltens sentenced Mr Grigson to four months home detention, with post-detention conditions, and 200 hours community work, ordered forfeiture of some items that I will come to, and imposed the mandatory further prohibition from being involved in the fishing industry for a further period of three years.

[3]      Mr Grigson has appealed against the home detention sentence on the grounds that it is manifestly excessive.  The submission as to the appropriate sentence is that there should have been home detention of three months rather than four months.  He does not challenge the sentence of 200 hours community work.

[4]      The essence of the Judge’s conclusions on Mr Grigson’s offending were as

stated as follows:

[3]       What you have done is that you have effectively hidden behind the corporate veil, with two commercial corporate entities being involved, and also hidden behind your daughter’s name to carry on in the fishing industry in contravention of the ban.  I accept what you have submitted through your counsel, that what you have done has not in any way affected either the fishing quotas or the other protections that exist within the industry for protecting New Zealand’s fish.  What you have done is you have breached the  order,  and  that  is  the  net  effect  of  your  offending  so  far  as  I  am concerned.

[4]       What the prosecution have submitted is right, in that there was a large amount of fish involved, that you have breached the ban continually for an extensive period of time, over 16 months, and that there was commercial gain involved as opposed to fishing for yr own domestic needs.  So there is an element of complication and surreptitiousness behind your breaching of the ban, but I do not see this at anywhere near the top end of possible offending under the section, which it would be if you were to simply ignore

the ban and to continue to fish and thereby affect the quotas and the other protections designed by the regulations.

[5]      Mr Grigson appeared on his own behalf.  He had been represented by counsel in the District Court but continued representation has not occurred because of difficulties over legal aid.   Mr Grigson helpfully and succinctly summarised the essential contentions he makes as to why the four months home detention is manifestly excessive.

[6]      The first point was that the Judge proceeded on the basis of a statement of facts agreed between counsel for the informant and counsel for Mr Grigson, but Mr Grigson had not had an adequate opportunity to review the statement.  It is clear that there  were  reasonably  extensive  discussions  between  counsel  in  respect  of  a statement of facts.  A draft statement prepared for the informant was substantially amended.  Mr Grigson has not suggested that his counsel in the District Court did not have his authority or instructions in the matter. Although there may be particular items in what was presented as the final agreed statement of facts which Mr Grigson may take issue with to an extent, I am satisfied that nothing material turns on that aspect for the purposes of this appeal.

[7]      Mr Grigson’s second point was that two cases referred to by the Judge on the question of sentence were substantially more serious than Mr Grigson’s offending. These were Ministry of Fisheries v Wikaira[1]  and Ministry of Fisheries v Samuels.[2]

From the sentencing notes it appears that the informant put these cases forward on the basis that Mr Grigson’s offending was more serious.   However, the Judge concluded that Mr Grigson’s offending was, as the Judge put it, on a par with the offending  in  the  other  cases.    I  accept  that  there  are  differences  between  the offending in those other cases and Mr Grigson’s offending, but I am not persuaded that  the  differences  are,  in  the  end,  material  to  the  question  as  to  whether  the sentence of home detention is manifestly excessive.

[1] Ministry of Fisheries v Wikaira DC Kaikohe, CRI-2010-027-001763, 3 February 2011.

[2] Ministry of Fisheries v Samuels DC Dargaville, CRI-2010-011-000188, 6 May 2010.

[8]      Mr Grigson submitted that the Judge failed to make proper allowance for the orders of forfeiture.  There were four items in respect of which forfeiture orders were

made.  The first was a 20' fishing vessel.  There was no evidence before the Judge as to  the  value  of  this  vessel.    Mr  Grigson  said  to  me  today  that  it  is  worth approximately $20,000.  Ms Walker advised me that the fisheries officer concerned understands the value to be around $5,000 based on other proceedings he has been involved in.   What is particularly relevant in relation to the boat is that there had already  been  orders  for  forfeiture  in  respect  of  it  before  there  was  the  further forfeiture order made on the prosecution of Mr Grigson.  The earlier orders had been made in respect of charges against Ms Higginson and Mr Sheridan.  The second item is a Toyota truck which Mr Grigson advised me was worth approximately $2,000. His daughter, he says, is the owner.  The third item is the proceeds of sale of fish which was seized by the Ministry and sold, the proceeds being some $1,400.  This arose from the charge against Mr Grigson of unlawful possession of fish.   There were also some 14 fish bins that were forfeited.

[9]      The Judge expressly stated that Mr Grigson was entitled to some credit for the consequence of forfeiture.  The essence of Mr Grigson’s submission is that in the end the Judge failed to give any allowance.  I am not persuaded that the Judge failed to give any allowance.   The question is whether there was adequate allowance. Relevant to this question is that Mr Grigson advised me that he is not in fact the owner of any of these items.  He says that there are consequences for him because of forfeiture arising from the offending to which he pleaded guilty.  However, having regard to the matters outlined above it is not apparent that Mr Grigson will in the end bear all of the financial consequences of the forfeiture.  That applies in particular to the boat because of the forfeiture which occurred separately on the prosecution of others.  What is more, as Mr Grigson has responsibly acknowledged, there are rights to apply for relief against forfeiture which have been exercised to a point but not fully exercised.  I am not persuaded that there was any material error by the Judge on the question of credits for forfeiture.

[10]     The next point made by Mr Grigson is that he had endeavoured to ensure that he did comply with the prohibition order.  It is not, as I understand it, in issue that he did make some enquiries as to the full scope of the order. The Judge adverted to this, although not to all of the matters put to me by Mr Grigson.  Mr Grigson did present to me today a statement from a fisheries officer in support of his submission that he

had endeavoured to ensure he complied with the prohibition.  It does appear that this statement was not available to the District Court Judge, but it does not contain information which I consider would have resulted in any material alteration to the sentence imposed by the Judge had he been aware of the statement.

[11]     The maximum sentence for this offence is 12 months imprisonment or a fine of $100,000.   The Judge indicated that the starting point for his sentencing was a term of imprisonment of eight months.  It may be that this could be regarded as a severe starting point and perhaps beyond the limits for this particular offending; this is particularly so because, as the Judge himself said at [11], Mr Grigson’s breaches of the ban  were “more  technical  than  attacking the quota system”.    However,  the essential question is whether the end sentence imposed is manifestly excessive, not whether the process by which that sentence was reached might be open to question in some matters of detail.  Having regard to the matters summarised by the Judge at [3] and [4] and as set out above, when considered in relation to the maximum penalty that could be imposed, and having reviewed the particular points made by Mr  Grigson,  I  am  not  persuaded  that  the  end  sentence  of  four  months  home detention, with the further post-detention conditions, is manifestly excessive.

[12]     As  I indicated  to  Mr  Grigson  during  the  course  of  his  submissions,  the question is not whether another Judge might have imposed a slightly different sentence but, as I have said, whether this sentence is manifestly excessive.  The fact that it is not in my judgment manifestly excessive is, to an extent, indicated in fact by Mr Grigson’s submission that the appropriate sentence would have been one of three months home detention together with the community work sentence.  I agree with Ms Walker’s submission that to alter the sentence from one of four months home detention to one of three months home detention would essentially amount to tinkering with the sentence rather than the imposition of a new sentence to avoid manifest excess.  And I make that observation without overlooking the fact that a reduction  from  four  months  to  three  months  represents  25%  of  the  sentence originally imposed.

[13]     For all of these reasons the appeal is dismissed.

[14]     Following  the  filing  of  the  appeal  the  home  detention  sentence  was suspended and Mr Grigson was granted bail.   The balance of the home detention sentence (approximately two months) is to be completed commencing from tomorrow, 20 September 2011, and, of course, on the terms as imposed by the District Court Judge.  Mr Grigson’s bail is to continue until tomorrow morning when

the home detention sentence resumes.

Peter Woodhouse J