Ho v Ministry of Fisheries
[2012] NZHC 516
•22 March 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2010-404-144 [2012] NZHC 516
BETWEEN THU THUY HO Appellant
ANDMINISTRY OF FISHERIES Respondent
CRI-2010-404-216
AND BETWEEN KIM CORE Appellant
ANDMINISTRY OF FISHERIES Respondent
Hearing: 14 December 2011
Appearances: P Heaslip for Appellants
S Barr for Respondent
Judgment: 22 March 2012
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 22 March 2012 at 4:30 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
Solicitors:
Luke Cunningham & Clere, Crown Solicitor, Wellington – email: [email protected]
Counsel:
P Heaslip, Barrister, Auckland – email: [email protected]
HO V MINISTRY OF FISHERIES HC AK CRI-2010-404-144 [22 March 2012]
Introduction
[1] The appellants, Ms Ho and Mr Core, each appeal their conviction and sentence for offences under the Fisheries Act 1996 (“the Act”).
[2] For reasons set out below, I do not consider there is any merit in their appeals against conviction but I do propose to make some reduction to the sentences imposed.
[3] Ms Ho was convicted on seven charges arising out of what are referred to as transactions 1, 3, 4, 5 and 6. On each transaction, Ms Ho was convicted of obtaining a benefit by knowingly possessing and procuring ordinary paua other than in accordance with the Act.[1] On transactions 1 and 3 Ms Ho was convicted of knowingly permitting a particular address to be used for an offence against the Act.[2]
[1] Fisheries Act 1996, s 233.
[2] Ibid, s 235.
[4] Mr Core was convicted on three charges of “knowingly possessing and procuring”, arising out of transactions 4 to 6, or of being a party to Ms Ho’s offending in this respect.
[5] A District Court Judge at Manukau heard the case against the appellants in a judge alone trial in mid 2009. The Judge convicted the appellants in February 2010 and in March 2010 she sentenced both to terms of imprisonment.
[6] Ms Ho filed an appeal against conviction and sentence within time. Mr Core’s appeal was out of time, but followed the High Court decision in Vu v Ministry of Fisheries.[3] That decision cast doubt on the appellants’ convictions. Accordingly, Mr Core requires leave to appeal out of time. There is no suggestion of
any prejudice to the respondent as a result of the delay, and I grant leave accordingly.
[3] Vu v Ministry of Fisheries HC Auckland CRI-2009-404-263, 18 May 2010.
[7] By consent, because of the Vu decision, the appellants were released on bail in May 2010. Subsequent decisions of the Court of Appeal and Supreme Court in Vu led the appellants to abandon the aspect of their appeals that depended on Vu.[4] The appellants remained on bail by consent pending determination of the remaining points on appeal.
[4] See: Ministry of Fisheries v Vu [2010] NZCA 469; Vu v Ministry of Fisheries [2010] NZSC 162.
[8] The appeal was part heard in May 2011. It became apparent that it would be necessary to obtain transcripts of legal discussions before and during the trial in the District Court. Counsel for the appellants did not represent either of them at trial. Unfortunately the material that was required from the District Court was not made available until November 2011. The balance of the appeal was then heard.
Grounds of appeal
[9] The grounds of appeal on which the appellants rely are:
Against conviction
(a) that the Judge failed to determine an objection that counsel for Ms Ho made to evidence of statements of Mr Saravuthy Mao (“Mr Mao”), and the Judge failed to require the prosecution to produce Mr Mao for cross-examination; and
(b)that in any event the evidence on certain counts was insufficient to warrant conviction; and
Against sentence
(c) the sentence was manifestly excessive.
Background
[10] Each transaction arose from an illegal sale in Wellington of a substantial quantity of paua by Mr Stevens, an undercover Fisheries Officer, to Mr Mao commencing in January 2008. As a general rule, Mr Mao paid the purchase price to Mr Stevens, although there was one important exception, referred to below. Mr Stevens or Mr Mao or both would then drive the paua to Auckland and deliver it to third parties. The prosecution alleged, and the Judge determined, that on occasion those third parties included the appellants.
First ground
[11] The contentious evidence on this ground of appeal is Mr Stevens’ account at trial of directions that Mr Mao gave him, and which led Mr Stevens to Ms Ho and Mr Core.
[12] Counsel for the appellants submitted that this evidence was inadmissible, that objection was taken at trial, that the evidence ought to have been excluded and that, had it been so excluded, there would have been insufficient evidence on which to convict the appellants on some if not all of the charges.
[13] There was dispute on appeal as to whether any objection to the evidence had ever been taken, and that gave rise to the need to obtain transcripts and other material from the District Court. I note also that counsel for the respondent’s position throughout was that, even if objection had been taken, the evidence was admissible pursuant to s 12A of the Evidence Act 2006 (“the Evidence Act”). The effect of s 12A is to preserve the rules of the common law relating to the admissibility of statements of co-conspirators or persons involved in a joint criminal enterprise. Counsel also submitted that, whatever the admissibility of the evidence, there had been ample admissible evidence of the appellants’ guilt and the evidence of Mr Mao’s statements was immaterial.
[14] Having considered all the relevant material, I do not consider there is any substance in this ground of appeal for the following reasons.
[15] First, I am not satisfied that any objection to the evidence was ever taken based on s 12A or, more to the point, on the criteria at common law governing admissibility of a co-conspirator’s statement. There was ample opportunity for such objection, because some six or seven weeks before trial the respondent gave notice that it proposed to lead evidence of oral statements made by Mr Mao and that it was relying on s 12A. By this time, Mr Mao had been convicted of various charges for his offending in the course of the various transactions and the Crown also gave notice that it proposed to adduce copies of certificates of Mr Mao’s convictions.
[16] Counsel for Mr Core did not object to the evidence at any time, on any basis. Counsel for Ms Ho objected at the pre-trial stage, but based the objection on s 22 of the Evidence Act. The objection based on s 22 was misconceived, because a party seeking to adduce evidence of a co-conspirator’s statement is not required to comply with s 22.
[17] Secondly, coming to the trial itself, the Judge herself stopped proceedings on the first morning of the trial and asked counsel whether there was any objection to evidence that Mr Stevens had just given, namely evidence of a statement or statements that Mr Mao had made to him. Section 12A was discussed and it was agreed that the Judge should hear the evidence and put it to one side if she considered it inadmissible.
[18] After the prosecution closed, each appellant made a submission of no case to answer. Counsel for Ms Ho repeated his objection based on s 22. The Judge did not refer expressly to the admissibility of the evidence in her written ruling, but I consider it implicit in that ruling that she considered the evidence admissible or of no real consequence, or both.
[19] After ruling on the no case to answer submissions, the appellants elected not to call evidence. There was no suggestion that their decision was affected by the admissibility of the evidence of Mr Mao’s statements. Moreover, it was open to them to call Mr Mao if they wished.
[20] Thirdly, I am satisfied that the evidence against the appellants was overwhelming in respect of the transactions on which they were convicted. The evidence as to Mr Mao’s statements was no more than part of the narrative.
Second ground
[21] The second ground of appeal against conviction concerns an alleged insufficiency of evidence. Again, I am satisfied that there is no substance in this point on appeal.
Transactions 1, 4 and 5 – 26 February, 26 March and 2 April 2008
[22] In respect of transaction 1, Ms Ho was convicted of offences under each of ss 233 and 235 of the Act, and in respect of transactions 4 and 5 she was convicted of offences under s 233. Mr Core was convicted in respect of transactions 4 and 5, under s 233.
[23] On each of these transactions, Mr Stevens with or without Mr Mao brought a minimum of 200 kilograms of paua from Wellington to Auckland.
[24] On transaction 1, under Mr Mao’s direction, Mr Stevens drove to 102 Naylors Drive, Auckland. There is no dispute this was Ms Ho’s address and that the paua was unloaded at the address.
[25] On transaction 4, Ms Ho met Mr Stevens at a service station in Mangere. Mr Stevens’ evidence was that Ms Ho directed him to follow her to 6 Tamaki Avenue, which he did, where the paua was unloaded at her direction. This was late in the evening, after 10:40 pm. Mr Core was identified as the driver of a Nissan vehicle BSA788 (“Nissan vehicle”) which arrived at the address some time afterwards.
[26] Transaction 5 saw Mr Mao directing Mr Stevens to the same service station in Mangere, arriving after midnight. Mr Core and Ms Ho arrived shortly thereafter and, at Mr Core’s request, Mr Stevens followed their vehicle to the Tamaki Avenue
address where, again, the paua was unloaded. Ms Ho also gave Mr Stevens
$2,500.00 in cash, being the balance of the purchase price that was due.
[27] Counsel submitted that the identification evidence of Mr Core in respect of transaction 4 was insufficient. I do not accept that submission. There was ample evidence at trial to suggest that Mr Core was the driver of the Nissan vehicle on that occasion, including evidence from a resident of the Tamaki Avenue property to the effect that Mr Core had arrived at the address that evening in the Nissan vehicle, and other evidence that Mr Core and Ms Ho returned to 102 Naylors Drive together after leaving 6 Tamaki Avenue.
[28] Ms Ho acknowledged that she was involved in each transaction. Although Ms Ho did not give evidence at trial, she maintained when interviewed that she believed she was involved in a legitimate transaction.
[29] It is inconceivable that anyone who played the role that Ms Ho did, including accepting or arranging the delivery of such a quantity of paua, to domestic addresses, meeting someone at a service station late at night and on one occasion paying them
$2,500.00 in cash, could believe that the transaction was legitimate. The Judge found that the mental element of the offence was proven in Ms Ho’s case, and I see no reason to depart from her finding.
Transaction 3 – 13 March 2008
[30] Ms Ho was convicted of offences pursuant to ss 233 and 235 of the Act in respect of this transaction. This time Mr Mao drove the paua from Wellington to Auckland. Mr Mao’s car was observed turning into a drive at a house in Naylors Drive. The following morning Ms Ho was observed driving the Nissan vehicle from her Naylors Drive address to 6 Tamaki Avenue, where paua was located subsequently. The Judge considered it a logical, reasonable and fair inference from the evidence that Mr Mao had delivered the paua to Ms Ho at 102 Naylors Drive and that she had committed offences pursuant to ss 233(1) and 235(1) of the Act accordingly. I do not consider the Judge erred in drawing the inference that she did.
Transaction 6 – 25 May 2008
[31] Mr Stevens drove 200 kilograms of paua from Wellington and was ultimately directed to an address in Otara, where he unloaded the paua. Mr Core and Ms Ho arrived at that address shortly after 4 pm that afternoon, driving the Nissan vehicle.
[32] The Judge considered it a fair inference that Ms Ho and Mr Core had each committed an offence pursuant to s 233(1) of the Act.
[33] Counsel for Ms Ho submits that that inference was not open to the Judge and that it was equally plausible that the appellant had no connection with the activities at the Otara address. With respect, that explanation is not plausible and the inference that the Judge drew was entirely open on the evidence.
[34] For these reasons, the appeals against conviction fail.
Appeals against sentence
[35] I turn now to the appeals against sentence. It is for the appellants to satisfy me that the sentences imposed were manifestly excessive, inadequate or inappropriate. Each charge carries a maximum term of imprisonment of five years and/or a fine of up to $250,000.00.
[36] The Judge adopted a starting point for each offender, having referred to the relevant purposes and principles of sentencing; to the requirement to impose the least restrictive outcome possible; to the particular facts of the offending, namely the number of transactions in which each appellant had played a part, the total weight of the paua and its commercial value; and to the sentences imposed on other offenders for similar offending.
[37] The Judge did not refer expressly to s 254 of the Act but she did refer to similar expressions of principle in the Sentencing Act 2002 (“Sentencing Act”). Section 254 provides as follows:
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.
[38] The significance of s 254 is self evident.
Ms Ho
[39] In Ms Ho’s case, the Judge adopted a starting point of four years’ imprisonment and imposed a final sentence of three years, two months’ imprisonment.
[40] Ms Ho received paua on five separate occasions. The total weight involved exceeded 1,159 kilograms. The permitted daily maximum of paua that a member of the public may take as of right is 10. The wholesale price of the quantity in Ms Ho’s case, if purchased legitimately, would have been more than $150,000.00. The Judge did not consider Ms Ho to be “the boss” of the enterprise but, amongst other things, was satisfied that the offending was for commercial gain.
[41] The Judge reduced the starting point by 10 months for mitigating factors personal to Ms Ho, principally that she was a first offender and that the Judge intended to order the forfeiture of the Nissan vehicle and other items.
Mr Core
[42] In Mr Core’s case, the Judge adopted a starting point of three years’ imprisonment and imposed a final sentence of two years eight months’ imprisonment. The quantity of paua involved in the transactions in which Mr Core played a part was approximately 761 kilograms. I add that those 761 kilograms were included in the amount attributed to Ms Ho. The wholesale price of that quantity, if purchased legitimately, would have been just less than $99,000.00.
[43] The only mitigating factor relating to Mr Core personally was that he had no relevant convictions. The Judge deducted four months on account of that factor.
Submissions on appeals against sentence
[44] Counsel for the appellants submitted that the sentences were manifestly excessive and that the appropriate sentences were periods of home detention. Counsel’s principal submissions were that the Judge placed too much emphasis on the quantity of paua involved; gave too little weight to several of the factors in s 8 of the Sentencing Act 2002, including that this was not the “worst case” of its type; the need for consistency in sentencing levels; and gave too little weight to mitigating personal factors.
[45] Counsel submitted that a starting point of between two to two and half years was appropriate for Ms Ho, with deductions of six to 12 months on account of mitigating factors relating to the offending and of six to 12 months on account of mitigating factors relating to the offender. Counsel argued for a greater deduction for personal factors, submitting that the Judge wrongly characterised Ms Ho as seeking to “minimise” her involvement and submitting that the Judge failed to give sufficient consideration to a relevant personal circumstance, namely that Ms Ho has six children, and to Ms Ho’s remorse. Counsel submitted that the end sentence for Ms Ho should not have exceeded 18 months’ imprisonment.
[46] In relation to Mr Core, counsel submitted that a starting point of two and a half years’ imprisonment was appropriate, with two sets of deductions, each of six months, for mitigating factors relating to the offending and relating to the offender. This would mean an end sentence of 18 months’ imprisonment, with a sentence of home detention to be imposed.
[47] As a matter of principle, counsel’s submission as to the need to reduce the starting point for mitigating factors relating to the offending is incorrect. The starting point arrived at is to reflect all aggravating and mitigating factors relating to the offending.
[48] The starting point adopted in any given case reflects the circumstances of that case and some variation is only to be expected. For the purposes of considering the starting point adopted by the Judge, I have reviewed the authorities to which both counsel referred me, being Dewes v Ministry of Agriculture and Fisheries, R v Zhang, R v Te Kaha and Karaitiana, Paenga v Ministry of Fisheries, Paul v Ministry of Fisheries, Ministry of Fisheries v Mao, Ministry of Fisheries v Miller, Ministry of
Fisheries v Ly & Vu, Chen v Ministry of Fisheries and Ministry of Fisheries v Smith.[5]
I have recent experience of sentencing levels for this type of offending, having decided the appeal in Chen.
[5] Dewes v Ministry of Agriculture and Fisheries HC Gisborne AP20/02, 7 October 2002; R v Zhang CA153/04, 13 July 2004; R v Te Kaha and Karaitiana CA49/05, 5 July 2005; Paenga v Ministry of Fisheries HC Wellington CRI-2009-485-150, 4 March 2010, Paul v Ministry of Fisheries HC Wellington CRI-2011-485-02, 29 March 2011; and Ministry of Fisheries v Mao DC Wellington CRI-
2009-032-2249, 9 April 2009; Ministry of Fisheries v Miller DC Wellington CRI-2008-032-2310, 20
April 2010; Ministry of Fisheries v Ly & Vu HC Auckland CRI-2009-404-263, 18 May 2010; Chen v Ministry of Fisheries HC Auckland CRI-2010-404-190, 26 August 2011; and Ministry of Fisheries v Smith DC Lower Hutt CRI-2008-032-2255, 4 September 2008.
[49] New Zealand’s fish stocks are a valuable natural resource, the taking of which is controlled. Offending of this nature affects the extent of the present and future resource and so the weight of paua involved is a most important matter in determining the starting point.
[50] Of the authorities to which I was referred, six involved a total quantity of less than 260 kilograms, namely Te Kaha and Karaitiana, Dewes, Paul, Vu and Paenga. In Paenga, a case involving 257 kilograms, the starting point adopted was
21 months’ imprisonment.
[51] The quantity involved in Smith was 900 kilograms, and Mr Smith had participated in 28 transactions. In that case, the Judge adopted a starting point of three and half years’ imprisonment. The Judge in Miller adopted a starting point of three years’ imprisonment in respect of eight charges, involving almost twice the weight of paua involved in Mr Core’s offending which, as I have said, was
761 kilograms. Mr Miller and Mr Mao (see below) were part of the same group as
Ms Ho and Mr Core.
[52] The weight involved in Ms Ho’s case was more than in Smith but less than in Miller and substantially less than the 2,500 kilograms in Mao. Mr Mao was convicted on 16 charges and the value of paua involved was estimated to be
$325,000.00. The Judge adopted a starting point of four and a half years’
imprisonment.
[53] Zhang also involved a very substantial quantity of paua, but is not possible to draw comparisons between the present case and Zhang, as the sentence was affected by matters which do not arise in this case. What is relevant in Zhang, is the statement from the Court that, had the offending in that case occurred in 2004 (rather than in 2001), greater official and public awareness of the seriousness of the offending would have meant a “much stiffer” sentence. The Court also said:[6]
... In the case of large scale commercial operations, sentences of three or four years, in really serious cases, would not be inappropriate given the public interest in the protection of this fish stock.
[6] R v Zhang CA153/04, 13 July 2004 at [42].
[54] I have no doubt that the nature of this type of offending and the need for deterrence warrants the starting points that the Judge adopted. I am conscious, however, of the desirability of consistency with the starting points adopted for Mr Miller and Mr Mao. For this reason alone, I propose to reduce each starting point by three months.
[55] I am satisfied that the deductions the Judge made for mitigating factors relating to each offender were within the appropriate range. I consider that the Judge took sufficient account of the fact that Ms Ho was a first offender. I have difficulty accepting that Ms Ho is remorseful for her offending. Ms Ho’s persistence with submissions that on occasion she believed she was involved in legitimate transactions does not indicate remorse.
[56] Counsel submitted that I might also take into account the fact that the appellants were released from prison, following the High Court decision in Vu. I do
not consider it appropriate to reduce the sentences imposed because Ms Ho and
Mr Core sought and were granted bail whilst on appeal. I am conscious, however, that the delay in making available the material from the District Court was vastly longer than anyone expected. For that reason I propose to reduce each sentence by a further period of three months.
Result
[57] For the reasons given above, I vary the sentence imposed on Ms Ho to two years, eight months’ imprisonment and I vary the sentence imposed on Mr Core to two years, two months’ imprisonment. All other orders that the Judge made are confirmed. The appellants are to present themselves at the Police Station at 42 Wiri Station Road, Manukau at 9 am on 27 March 2012, at which time their bail is revoked.
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Peters J