Harrison v Ministry of Primary Industries

[2017] NZHC 146

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-002 [2017] NZHC 146

BETWEEN

JOSHUA HARRISON

Appellant

AND

MINISTRY OF PRIMARY INDUSTRIES Respondent

Hearing:	13 February 2017
Appearances:	P Pati and B Ropati for Appellant A Devathasan for Respondent
Judgment:	14 February 2017

JUDGMENT OF LANG J [on appeal against sentence]

This judgment was delivered by me on 14 February 2017 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

HARRISON v MINISTRY OF PRIMARY INDUSTRIES [2017] NZHC 146 [14 February 2017]

[1]      Mr Harrison pleaded guilty in the District Court to one charge of knowingly attempting to possess unauthorised goods,1 and one charge of trading in a threatened species without a permit or certificate.2    On 7 December 2016, Judge Wiltens sentenced Mr Harrison to 250 hours community work.3   Mr Harrison appeals against sentence on the basis that the Judge erred in principle by failing to impose a sentence

of intensive supervision coupled with a lesser sentence of community work.

Background

[2]      The factual basis on which the Judge sentenced Mr Harrison was contained in an agreed summary of facts. This recorded that in November 2013, Customs officers intercepted a parcel sent from Poland that was found to contain ten live cacti plants. These had whole root systems intact that contained small amounts of soil.   The species of the plants were identified on labels attached to the plants, and the parcel did not have the required importation documentation attached to it.

[3]      Subsequent enquiries revealed that the plants had been purchased overseas using  an  account  held  by Mr  Harrison’s  father  with  the  global  internet  trading platform Ebay.   When Customs officers interviewed Mr Harrison’s father, he told them that his son had used his Ebay account to make purchases in the past.   Mr Harrison’s father also told the Customs officers that his son had admitted purchasing the cacti plants using the Ebay account and his father’s credit card.

[4]      Mr Harrison was interviewed in March 2014.  Although he said he had no specific recollection of purchasing the plants, he admitted that it was fair to say he would probably have purchased them and that he had used his father’s Ebay account to purchase items from abroad in the past.

[5]      The present offending was aggravated by the fact that a similar incident had occurred in March 2013.  On that occasion Mr Harrison had imported seahorses and cacti into New Zealand in three separate parcels that were intercepted by Customs

officers at Auckland International Airport.  Mr Harrison had purchased these items

1      Biosecurity Act 1993, s 154O(15) and 157(1).

2      Trade in Endangered Species Act 1989, s 44(1)(b) and (3).

3      R v Harrison [2017] NZDC 1485.

over the internet from vendors overseas.  Customs officers interviewed Mr Harrison about these importations in August 2013.  He admitted he had imported the items, and subsequently received a formal written warning in relation to the importation of restricted items from overseas.

The Judge’s decision

[6]     The Judge’s decision is encapsulated in the following excerpt from his sentencing remarks:4

[3]       Bringing in plants that are unauthorised and that have dirt around the roots, as yours did, exposes New Zealand’s economy significantly.   You know that because you were warned about that three months before you did this and yet you still arranged for this to occur.  I do not [know] why you are shaking your head, you have made admissions to this.

[4]      Previous cases have been decided by the Courts and the main consideration here is deterrence, to try and stop others from behaving in this way  in  future  and  to  stop  you  behaving  in  this  way  in  future.    The appropriate penalty is either a significant fine, and I think I indicated to you back  in  January  this  year  that  the  file  would  be  between  $15,000  and

$21,000 which you obviously do not have, or a significant period of community work, between 200 and 33 hours.  Despite what Mr Ropati says

about your personal situation it seems to me that people who expose New

Zealand to risks of this type need to repay something to our community.

[5]       So on both of these charges the least restrictive outcome that is available is concurrent sentences of 250 hours of community work.   The cacti are to be destroyed.  In the meantime you can do your community work and, if you do it again the chances are it will be a term of imprisonment.  I warn you of that now.

Grounds of appeal

[7]      On Mr Harrison’s behalf, Mr Pati does not quarrel with the proposition that the offending warranted a deterrent sentence.  He submitted, however, that a report prepared  by a  psychologist  prior  to  sentencing  indicated  that  Mr  Harrison  was extremely depressed at the time of the offending and this explained why he had little or no insight into the harm that his offending was likely to cause.  He submitted that this fact, coupled with difficulties in Mr Harrison’s family background, meant that a rehabilitative sentence was also necessary.   Mr Pati submitted that a sentence of

intensive supervision would provide Mr Harrison with the structure and guidance necessary to ensure that he does not offend again in the future.

Decision

[8]      Like the Judge, I am satisfied that a deterrent sentence was warranted in the present  case  because  of  the  seriousness  of  the  offending.    The  gravity  of  the offending was also aggravated significantly by the fact that Mr Harrison had engaged in similar conduct just a few months earlier.

[9]      I also accept, however, that the report from the psychologist identified several factors that were relevant to the issue of sentence.  The Judge did not refer to these in his sentencing remarks.  First, Mr Harrison has grown up within a difficult family environment.  Although he is now 25 years of age he still resides with his parents, and this has created significant issues in relation to his feelings of self-worth and self-esteem.  Secondly, the report makes it clear that Mr Harrison was in a depressed state at the time of the present offending, and this was probably exacerbated by his daily use of cannabis during this period.  Reading the report as a whole, I consider that the issues identified by the psychologist provide a demonstrable link to the offending because they provide an explanation for the fact that Mr Harrison was prepared to offend again in a similar way so soon after being warned not to do so.

[10]     As matters currently stand, Mr Harrison will be required to complete his sentence  of  community  work  but  will  be  subject  to  no  other  form  of  official oversight in the future.  I consider that this may well increase the prospect that he may choose to offend again in the future.

[11]     For that reason I am satisfied that a sentence of intensive supervision is appropriate, even though it stands higher in the sentencing hierarchy than a sentence of community work.5   A sentence of intensive supervision will enable the authorities to maintain oversight in respect of Mr Harrison’s activities over the next two years. That sentence,  coupled with a significant sentence of community work, will be deterrent  in  nature  but  will  also  provide  for  Mr  Harrison’s  rehabilitation.    In

particular, it will provide him with such assistance as may be required from psychologists and counsellors.   It will also enable the authorities to ensure that he takes whatever steps may be necessary to remove his present dependency upon cannabis.

Result

[12]     The  appeal  against  sentence  is  allowed.     The  sentence  of  250  hours community work is quashed and is replaced with a sentence of 190 hours community work.  In addition, Mr Harrison is sentenced to intensive supervision for a period of two years on the following special conditions:

(a)      Mr   Harrison   is   to   undertake   and   complete   an   appropriate psychological assessment and to complete any treatment and counselling as directed through the psychological assessment.

(b)Mr Harrison is to attend and complete an appropriate alcohol and drug abuse programme to the satisfaction of a probation officer.   The specific details of the appropriate programme are to be determined by a probation officer.

(c)      Mr Harrison is to reside at an address approved by a probation officer and not to move to any residential address without the prior written approval of a probation officer.

[13]     The standard conditions of intensive supervision pursuant to s 54F of the

Sentencing Act 2002 are also applicable.

Lang J

Solicitors:

Kayes Fletcher Walker, Auckland