Harvey v Ministry of Primary Industries

[2020] NZCA 519

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA361/2020
 [2020] NZCA 519

BETWEEN	STEPHEN GRAHAM HARVEY Applicant
AND	MINISTRY OF PRIMARY INDUSTRIES Respondent

Court:	Gilbert, Mallon and Ellis JJ
Counsel:	E J Forster for Applicant S K Barr and T R Simpson for Respondent
Judgment: (On the papers)	21 October 2020 at 3.30 pm

JUDGMENT OF THE COURT

The application for leave to bring a second appeal against sentence is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

1. This is an application for leave to bring a second appeal against a fine imposed under the Fisheries Act 1996 (the Act).

2. Mr Harvey was employed as the master of a commercial fishing vessel targeting tuna using the surface longline method.  He pleaded guilty to two unrelated sets of offending in two distinct periods, close in time.  The first set of offending occurred during the period from 2 May 2016 to 8 June 2016 — 17 charges of failing to deploy bird scaring devices to minimise bird bycatch when trawling.[1]  The maximum penalty for each of these offences was $100,000.[2]   On 23 July 2018, Mr Harvey was fined a total of $13,500 for this offending.  The second set of offending occurred on 15 occasions on three separate trips during the period from 16 July 2016 to 2 September 2016 —misreporting of bycatch, an offence under s 230(1)(b) of the Act carrying a maximum fine of $250,000.[3]  In particular, Mr Harvey grossly under‑reported shark and other bycatch returned to the sea dead or unlikely to survive.  This false reporting reduced the catch attributed against the fishing permit holder’s annual catch entitlement.  On 17 March 2020, Judge Butler fined Mr Harvey $24,472 for this offending.[4]

   [1]Fisheries (Commercial Fishing) Regulations 2001, regs 58 and 84(3).

   [2]Regulation 85(4).

   [3]Fisheries Act 1996, s 252(3)(m).

   [4]Ministry of Primary Industries v Harvey [2020] NZDC 4886.

3. Mr Harvey appealed against the fine of $24,472 for the second set of offending. His appeal was dismissed by Churchman J in a judgment delivered on 16 June 2020.[5] 

   [5]Harvey v Ministry of Primary Industries [2020] NZHC 1357 [High Court judgment].

4. Mr Harvey now applies for leave to bring a second appeal against this fine.  He contends that the courts below made an error of approach in failing to allow a totality adjustment taking account of both sets of offending and this resulted in the fine being disproportionately high for the second set of offending.  Mr Harvey argues that the correct application of the totality principle raises a matter of public importance justifying the grant of leave for a second appeal.

5. This Court must not give leave for a second appeal against sentence unless satisfied that the appeal involves a matter of general or public importance or a miscarriage of justice may have occurred, or may occur, unless the appeal is heard.[6]  It is rare for leave to be given for a second appeal against sentence. 

   [6]Criminal Procedure Act 2011, s 253(3).

6. The totality principle in sentencing is given statutory recognition in s 85 of the Sentencing Act 2002.  It specifically applies where the court is considering imposing sentences of imprisonment for two or more offences.  However, the principle is sometimes applied more broadly than this, including, for example, where reparation is ordered in addition to a fine.[7]  The rationale for a totality discount and the circumstances in which it may properly be applied are well-established.

   [7]Adams on Criminal Law — Sentencing (online ed, Thomson Reuters) at [SA 85.05]; and Hall’s Sentencing (looseleaf ed, Lexis Nexis) at [SA 85.14].

7. Churchman J accepted there was theoretically room for the application of the totality principle in circumstances such as the present case where successive fines are imposed for offending occurring proximately in time.  However, the Judge considered the overall fine imposed on Mr Harvey for both sets of offending was “well within ... range” and no further adjustment for totality was required.[8] 

   [8]High Court judgment, above n 5, at [24]–[28].

8. We are unable to identify any error in the High Court’s analysis.  By any measure, the fines imposed on Mr Harvey for each set of offending were set at a low level, near to the bottom of the permissible range.  The offending in each case was serious and persisted over an extended period.  The fines imposed were less than 10 per cent of the maximum penalty.  This could only be justified if Mr Harvey’s level of culpability was assessed as being low.  We note there is no suggestion in the sentencing notes that Mr Harvey did not have the means to pay an appropriate fine.

9. Even if the application of the totality principle in a case such as the present could raise a matter of general or public importance, we are satisfied this is not an appropriate case for that issue to be considered.  The proposed appeal has insufficient prospects of success to justify the grant of leave.  We see no risk of a miscarriage of justice occurring if leave is not granted for a second appeal.  There is therefore no basis for this Court to grant leave for a second appeal against the fine imposed for the second set of offending.  The application must accordingly be declined.

Result

1. The application for leave to bring a second appeal against sentence is declined.

Solicitors:
Crown Law Office, Wellington for Respondent