Hona v Ministry for Primary Industries
[2021] NZHC 2156
•17 August 2021
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2021-443-29
[2021] NZHC 2156
BETWEEN JESSE JACOB HONA
Appellant
AND
MINISTRY FOR PRIMARY INDUSTRIES
Respondent
Hearing: 17 August 2021 Counsel:
J M Woodcock for Appellant L A Blencowe for Respondent
Judgment:
17 August 2021
JUDGMENT OF SIMON FRANCE J
[1] Mr Hona appeals the refusal of the District Court to discharge him without conviction in relation to two charges that can generally be described as obstructing a fisheries officer in the execution of duty.1 He was convicted and fined $300 on each charge.2
Offending
[2] Mr Hona was taking pāua in excess of the daily limit. Twenty-six pāua were involved against a daily limit of 10. Mr Hona says he was taking them to be a koha for an upcoming family event. Normally his partner and daughter accompanied him which he believes means he can take more but they were unable to on this occasion.
1 Ministry for Primary Industries v Hona [2021] NZDC 9916.
2 Ministry for Primary Industries v Hona [2021] NZDC 12575.
HONA v MINISTRY FOR PRIMARY INDUSTRIES [2021] NZHC 2156 [17 August 2021]
[3] The charges flow from Mr Hona’s reaction when confronted by a fisheries officer. First he provided false particulars; this is the first charge. Then, contrary to instructions not to, he threw some pāua back into the sea, and then ran off. This is the second charge of not following directions.
[4] When fisheries officers and police visited the provided address, they learned he lived across the road. Mr Hona eventually answered that door in disguise (a beanie hat with long hair) and denied being the offender. He was arrested.
Further information about Mr Hona
[5] Mr Hona is 31 years old. He lives with his partner and his children aged six and one. At the time of sentencing he was unemployed but nearing the completion of an 18-month diploma course in Health and Safety Management. This would enable him to be employed as a trainer of others.
[6] Mr Hona is a qualified scaffolder and rigger and is able to work part-time at that. He has previously been in mining in Australia and oil and gas in New Zealand.
[7] Mr Hona expresses remorse for his offending. He participated in what appears to be a successful restorative justice meeting with the fisheries officer. The record of the meeting indicates Mr Hona said he was doing voluntary community service but then continues “and hope to do that within my iwi”. I note this as some issue arose as to whether this was misleading as suggesting, incorrectly, Mr Hona was already doing community service. In a subsequent affidavit filed for the appeal, Mr Hona says he had indicated he intended to do some, and since has.
[8] Mr Hona affiliates to Taranaki and Te Āti Awa Iwi. He is building up his understanding of his whakapapa and is learning Te Reo.
[9] Mr Hona has eight previous convictions from when he was a teenager. His last conviction was in 2009, and all are presently covered by the clean slate legislation. That would end should the convictions remain.
Decision under appeal
[10] The Judge set out the facts as contained in the summary. These included the events when first confronted, the events at his house and a discussion of “the environmental impact of the offending”. This latter aspect sets out the impact on the environment and pāua stocks of excessive fishing. I observe the pāua offending was dealt with by infringement notice and involved a set fine for taking more than two times and less than three times the daily limit.
[11] The Judge assessed the overall gravity of the offending as moderately serious. Of the offending itself the Court observed:
This is serious offending. It might not look particularly serious but when one sees repeated plundering of the paua, in particular, around the Taranaki coastline and the environmental impact, the sustainability of this natural resource is very much in jeopardy.
(Although not disagreeing with the sentiment, it is necessary to observe at this point that the fishery offending was dealt with by infringement notice which was not the subject of the discharge application.)
[12] The Judge noted uncertainty over the size of the pāua because Mr Hona’s actions did not allow analysis. Overall, bearing in mind Mr Hona’s efforts to improve his own circumstances, the gravity was moderately serious.
[13] Concerning consequences, the Judge identified the direct consequences as being a potential barrier to employment prospects, embarrassment and stigma. The Court noted that Mr Hona’s earlier convictions had not been a barrier to employment and queried whether Fisheries Act convictions would be any more so. The assessment was that there was potential for them to be a block, but they were not an absolute barrier.
[14] Given these two assessments, the consequences of a conviction were not considered to be out of all proportion to the gravity of the offending.
Further evidence on appeal
[15] Mr Hona has filed a further affidavit explaining the outcome of a recent job application. One opportunity which had been explored from March 2021 (the offending was 13 February 2021; the discharge hearing 25 May 2021) was with a training organisation. It would have been a product of the diploma work. Mr Hona completed the application to be a contracted provider and was offered a role. This was on 30 April 2021. At that stage his situation was governed by the clean slate legislation; it is not said what Mr Hona wrote, nor what information he provided about his current situation.
[16] It seems Mr Hona took part in further training, activity consistent with him working with the organisation. However, in June 2021 he was told there were issues with the police vetting aspect of his application. By then he had been convicted on the two obstruction charges. He was also no longer “clean slated” as a consequence. The opportunity has now been withdrawn.
[17] The day before this hearing, further information was proffered. It confirms Mr Hona has done community work with some organisations.
Submissions on appeal
[18]On Mr Hona’s behalf, Ms Woodcock submits the District Court:
(a)erred in its assessment of the gravity of the offending as moderately serious;
(b)erred in its assessment of the impacts on employment; and
(c)overweighted the issue concerning whether Mr Hona had done community work.
[19] In relation to gravity of the offending, it is submitted that the actual offending is at the lower end of obstructing an officer. Mr Hona was not violent, threatening or aggressive, and his incorrect details were somewhat hapless. The address provided,
for example, was directly across the road from where he actually lived. His disguise was an obvious wig.
[20] This starting point is then reduced by a guilty plea, genuine remorse and genuine participation in a restorative justice meeting. The end result should be an assessment of low to moderate gravity.
[21] Concerning consequences, it is submitted that what is needed is “a real and appreciable risk” that they will ensue.3 It is further submitted this test was met before the District Court, but is now illustrated clearly by subsequent events as detailed in Mr Hona’s affidavit. Further, Mr Hona had indicated he would be seeking work in Australia, and convictions would inevitably impact on that.
[22] Concerning the balancing exercise, against the amended analysis of gravity and consequences it is submitted a conviction is out of all proportion. The appellant had turned his life around, was seeking to study and better himself and acted in a moment of foolishness. His remorse is genuine and the impact of convictions on this appellant will be out of all proportion to the offending and is not in the best interests of the community.
[23] The respondent describes Mr Hona as “highly obstructive” during the course of the offending. Reference is made both to the events at the initial confrontation, and later at his house, which represent a series of events rather than a one-off act. It is further submitted the impact on the fishing stock is serious aggravation. Other submitted aggravating factors are tying up fisheries officer resources and alleged premeditation, being throwing the pāua back when told not to.
[24] Concerning consequences, it is noted that the clean slate legislation provides that a new offence triggers another seven year period. Reference is made to Williams v Police where the High Court cautioned against undermining that prescribed consequence.4 In relation to employment it is submitted Mr Hona is still likely to be able to get work as a scaffolder, and doubts are raised as to whether the recent job loss
3 R v Taulapapa [2018] NZCA 414 at [22].
4 Williams v Police [2013] NZHC 394 at [29]–[30].
has been shown to be a consequence of the conviction. It may be that the employer was caught unawares by the police vetting report which could equally explain the reaction.
Decision
(i) Gravity of the offence
[25] There are two aspects of the Court’s conclusion of moderately serious that merit analysis.
[26] First, in relation to the seriousness of the offending, I consider undue weight has been given to the impact of the offending on the pāua stock. I accept that offending is mentioned in the summary of facts and is part of the broader context, but the primary focus must be on the actual charges to which the discharge application is directed. They are two charges of obstructing fisheries officers concerning which a $300 fine for each is imposed.
[27] Inherent in the offences, and relevant to the seriousness assessment, are the features of obstructing enforcement officers and dishonesty in terms of lying about identity and residence. Those features elevate this type of offence above the lowest level. An aggravating aspect in the present case is that the offending potentially impeded the preservation of a protected species. It cannot be put higher than that as there is no information on whether the pāua were undersized, but that is because Mr Hona returned them to the sea.
[28] On the other hand, in terms of interfering with enforcement officers, these are relatively less serious examples, as reflected by the low fine. The seriousness here is reflected in what is missing – violence, intimidation or aggravation are all absent. Further, there is a clear lack of sophistication in the false details. I would consider the offending of moderate seriousness.
[29] The second aspect of the gravity analysis requiring further consideration are the mitigating factors. These are not expressly detailed in the ruling although regard
was no doubt had to them.5 They are quite strong here in the sense that a guilty plea has been reinforced by clear genuine remorse and a successful restorative justice meeting.
[30] Some issue arose concerning community work and I am told the Judge addressed Mr Hona directly about this at the hearing. The record of the restorative justice meeting says that Mr Hona indicated he would do some. The Judge was concerned this had not happened. A line in the ruling suggests the Court thought Mr Hona had said he had done some. One part of the restorative justice report suggests that, but it is immediately qualified by a comment that shows it to be a forward-looking endeavour. While none had been done, sentencing was only 11 days since the restorative justice meeting. By the time of appeal Mr Hona has done some with three different organisations.
[31] More generally, Mr Hona is a 31-year-old man in a stable family situation with two young children. After a period of instability and relatively less serious offending in his teens, Mr Hona has not further offended and has generally had employment here and overseas. He is making efforts to reconnect with his Māori culture and had, well before this offending, been undertaking a study course to open up different employment opportunities.
[32] These factors, taken together, require significant recognition. I assess the gravity as low to moderate, scaling towards the low. This differs from the District Court’s assessment of moderately serious, and obviously impacts on the balance of the analysis.
(ii) Consequences
[33] As is usually the case, impact on employment features prominently. The situation is in my view relatively straightforward. Mr Hona is trained as a scaffolder and there is no basis to think that work will not be available. He has retrained in the Health and Safety area, and acquired a qualification. I consider it is a real and appreciable risk that his employment prospects in that role, which is likely to involve
5 The analysis appears to be serious offending reduced to moderately serious.
training, will be affected. Mr Hona’s evidence concerning his recent job application adds some support but I accept Ms Blencowe’s submission that there is a level of uncertainty. The fair inference is that the police vetting report surprised the employer, and it is difficult to know what most weighed with the employer.
[34] A second consequence is the impact on the clean slate status. I acknowledge the observations in Williams on which the respondent relies,6 but have some reservations. The scheme of this Act is to identify the consequences and then do a proportionality assessment. Loss of clean slate status is a consequence, and therefore ought to be considered. I accept there are dangers in overweighting it, but note it is a broad-brush consequence that applies to any conviction regardless of the seriousness. For that reason I consider it is a consequence to be weighed in the mix in appropriate cases. It should not in my view be generally disregarded as a consequence.
Balancing exercise
[35] In the present case I consider the consequences need to be looked at through the lens of what Mr Hona has achieved, and how that will be impacted. He is a Māori man in a stable relationship who has worked hard to open up employment opportunities. He has committed an offence of low to moderate seriousness that was a relatively spontaneous and foolish reaction to a predicament which itself has been met with an infringement notice. He is genuinely remorseful, and has taken real steps to make amends.
[36] In my view it would be out of all proportion to visit him not only with these convictions but also those of 12 years ago, committed in his youth. It will impact on his employment prospects but also on his own perception of himself and where he is at in circumstances where it is in everyone’s interests that he pursue his current path. I am influenced by the somewhat spontaneous nature of this offending by a person who has not offended while an adult and consider the discharge outcome is possible because of the lack of more aggravating features in his engagement with the fisheries officers.
6 Above n 4.
[37] It follows from this analysis that I consider the discretion should be exercised in his favour. I do not consider in the circumstances of the case, for all the reasons that have been discussed, that to discharge without conviction would undermine the work of the fisheries officers.
Conclusion
[38] The appeal is allowed. On the two offences against s 229(1) of the Fisheries Act, Mr Hona is discharged without conviction.
Simon France J
Solicitors:
Crown Solicitor, New Plymouth for Respondent
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