Jurlina v Department of Conservation

[2024] NZHC 1138

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-82

[2024] NZHC 1138

BETWEEN

MATT JURLINA

Appellant

AND

DEPARTMENT OF CONSERVATION

Respondent

Hearing:	6 May 2024
Counsel:	M Houra for Appellant E J Kerr for Respondent
Judgment:	10 May 2024

JUDGMENT OF BREWER J

This judgment was delivered by me on 10 May 2024 at 11 am

Registrar/Deputy Registrar

Solicitors:

Thomson O’Neill & Co (Eltham) for Appellant Meredith Connell (Auckland) for Respondent

JURLINA v DEPARTMENT OF CONSERVATION [2024] NZHC 1138 [10 May 2024]

Introduction

[1]                 Mr Jurlina pleaded guilty to a charge alleging that he, without authority, hunted or killed absolutely protected marine wildlife, namely fairy prion (Pachyptila turtur).1 The maximum penalty is two years’ imprisonment or a fine not exceeding $250,000, or both.

[2]                 On 24 January 2024, Judge K Maxwell refused Mr Jurlina’s application to be discharged without conviction and instead fined him $2,500 and ordered him to pay court costs of $564.2

[3]                 Mr Jurlina now appeals against the Judge’s refusal to discharge him without conviction.

[4]                 An appeal against a refusal to discharge without conviction is characterised as an appeal against both conviction and sentence.3

Background

[5]Judge Maxwell set out the background to Mr Jurlina’s case in her decision:

[2]        The facts are set out in a summary and those are as follows. The Department of Conservation administers the Wildlife Act 1953. Under the Act all native wildlife unless declared otherwise are absolutely protected throughout New Zealand. The fairy prion is an abundant small seabird confined to the Southern Hemisphere. Although fairy prions historically bred on the mainland, they now only breed on offshore islands where they are safe from introduced predators. Fairy prions feed in large flocks on the ocean surface and by shallow diving to take prey putting themselves at risk from vessel strike. Because this species no longer bred on mainland New Zealand, it has the threat classification of at risk of extinction.

[3]        On 17 September 2022, a member of the public reported concerns about a video of a powerboat striking seabirds which was published on the Instagram social media channel. The video showed the boat being driven at high speed for about four seconds before it travels through a flock of protected fairy prions which were resting on the calm ocean surface. As it approached the flock, the boat made no attempt to slow or deviate its course to avoid striking the birds.

1      Wildlife Act 1963, s 63A(a).

2      Department of Conservation v Jurlina [2024] NZDC 1327.

3      Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144.

[4]        The occupants of the boat are heard yelling and laughing in the video as they pass through the flock. The video included the text: “We fuckn love birds, eh,” and laughing emojis.

[5]        You are the owner of the Instagram account where the video was published. You were interviewed under caution on 10 October 2022. You admitted you were the owner and skipper of the powerboat in the video. You said the incident happened in the Hauraki Gulf in a location near Simpsons Rock. You stated there were four people on board your boat which was travelling at about 30 knots at the time. You acknowledged filming a video whilst you were driving the boat. You claimed you were recording towards the stern of the boat when you suddenly noticed a flock of birds. You claimed it was safer for you to continue your course rather than deviate or slow down.

[6]        You stated: “I would rather a few birds get hurt than a few people.” You further stated you felt like all the birds got out of the way and you deny the boat hitting any birds or injuring or killing any birds. In relation to posting the video of the incident on Instagram, you stated: “I did not view what I had done as serious and potentially caused damage. I just kind of like done this thing accidentally and then for that brief two, three, four or five minutes thought it was a little bit funny.” You were remorseful for your actions and said it does not portray your values as a person.

[7]        An expert reviewed the video and commented that the birds sitting on the water were coming up from shallow dives are likely to have been hit by the boat travelling at this speed, it would have caused broken bones or killed birds outright if they were hit on the head, and that birds with broken bones are unlikely to survive.

Judge Maxwell’s decision

[6]                 Judge Maxwell went through the well established three-step analysis for determining whether a person should be discharged without conviction.

[7]                 The first step is to assess the gravity of the offence having regard to the circumstances of the offending and the offender.

[8]                 The Judge made the point that the offence is one of strict liability. Her Honour considered an affidavit filed by Mr Jurlina in which he said he did not intend to hurt or kill the birds. The Judge said:

[16]      For the purposes of the application, you have filed an affidavit and your lawyer has also filed submissions. What you say there is that “I made an instant decision not to throttle off and abruptly stop as there were four of us standing up on board and as skipper of the boat, it is my duty to keep the people on board safe”.

[17]      The difficulty with what you assert in your affidavit, Mr Jurlina, is that what you say appears to be at odds with what is clearly visible in that

Instagram post. That was played for me in Court this afternoon. It appears to show you filming from the front of the boat, and birds being clearly visible, and a number of them are visible for that matter.

[18]      It would appear from the footage that I have seen that you prioritised capturing that footage rather than slowing down or deviating your course away from that protected wildlife.

[9]                 The Judge was of the view that the sentencing purpose of deterrence is very important in cases like this.

[10]The Judge assessed Mr Jurlina’s offending as being of moderate seriousness.

[11]              The Judge then turned to Mr Jurlina’s personal circumstances. The Judge accepted that mitigation was present. Mr Jurlina had completed voluntary community work with an organisation called Sea Cleaners. He had donated $500 to the Northern New Zealand Seabird Charitable Trust. He was also entitled to credit for his plea of guilty. Taking those matters into account, the Judge decided that the seriousness of the offending was reduced to “something less than moderate”.4

[12]              The Judge was not satisfied that remorse was present to an extent justifying a further reduction in the assessment.

[13]              The second of the three steps is to identify the direct and indirect consequences for a defendant of a conviction.

[14]              In his affidavit, Mr Jurlina deposed that in March 2023 he was selected to play for the National Croatian rugby team and played three international games for the team which included travelling to Lithuania. He gave his opinion that a conviction will have a significant impact on his ability to play internationally because of the strict border controls of countries in which he might be selected to play.

[15]              Mr Jurlina annexed to his affidavit  a  letter  dated  10 August  2023  from  Mr Milan Yelavich who described himself as “Director of Rugby”, “Croatia Rugby Union”. Mr Yelavich said that “a conviction would very negatively impact Matt’s rugby opportunities and career”.

4      Department of Conservation v Jurlina, above n 2, at [20].

[16]              Judge Maxwell acknowledged Mr Jurlina’s career aspirations in international rugby, but noted that Mr Jurlina already has previous convictions and that these convictions have not had an inhibiting effect on Mr Jurlina’s rugby career.5 The Judge concluded that there was no evidence to suggest that conviction on the current charge would provide any additional impediment.

[17]              The Judge  also  considered  submissions  that  a  conviction  might  affect  Mr Jurlina’s general employment opportunities. The Judge noted that Mr Jurlina’s work as a plumber and gasfitter had not been affected by his previous, and more serious, convictions. In any event, the Judge commented, a negative impact on employment opportunities can generally be said to be a natural consequence of offending.

[18]              It was submitted to the Judge that one consequence of a conviction being entered would be that Mr Jurlina’s eligibility for his criminal record to be concealed by the Clean Slate legislation6 would be set back. The Judge was of the view that this was not a material consequence. Mr Jurlina was not entitled to the protection of that Act.

[19]              The Judge was not satisfied that there are any consequences for Mr Jurlina “which necessarily follow from a conviction of this nature”.7

[20]              The third step of the analysis is to determine whether or not the identified consequences of a conviction are out of all proportion to the gravity of the offending. Given her assessment of gravity and lack of consequences, the Judge was not satisfied on this test.

The appeal

[21]The grounds of appeal are set out in Ms Houra’s submissions:

5      On 20 October 2017, Mr Jurlina was sentenced on a charge of injuring with intent to injure. The sentence was 100 hours’ community work, supervision for one year and reparation of $560. On the same day he was sentenced to 50 hours’ community work on a charge of wilful trespass.

6      Criminal Records (Clean Slate) Act 2004.

7      Department of Conservation v Jurlina, above n 2, at [30].

(a)That her Honour erred in her assessment of the gravity of the offending through failing to take into account the background to the offending and the steps taken by Mr Jurlina to mitigate that gravity.

(b)That her Honour erred in her assessment of the consequences of conviction by placing insufficient weight to the consequences which may, and which in fact may have arisen as a result of the consequences of conviction.

(c)That her Honour erred in weighing the consequences of conviction against the gravity of offending.

[22]              As to the gravity of the offending, Ms Houra submits that the Judge erred in finding a starting point of moderately serious offending. The Judge should have accepted that the offending was accidental (“the birds were not noticed until it was too late”) and that posting a video on Instagram was a thoughtless act, rapidly regretted, and the footage was taken down by Mr Jurlina shortly after posting it.

[23]              Ms Houra submits that the Judge, when having regard to the mitigating factors, should have characterised the overall gravity of the offending as low.

[24]              As to the consequences of conviction, Ms Houra first submits that the Judge erred in her assessment of the likely impact of a conviction on Mr Jurlina’s employment. Ms Houra filed a further affidavit of Mr Jurlina made on 2 May 2024. He deposes that as a result of the conviction and the attendant publicity he lost his job. Mr Jurlina annexes to his affidavit a letter from his employer dated 30 January 2024 terminating his employment with immediate effect. The reason given for this is:

As discussed with you yesterday we consider your recent unlawful conduct and the publicity it has received detrimental to our business and the reputation of our company.

[25]              Ms Houra submits further that the Judge erred in concluding that the Clean Slate legislation was of no moment. The submission is that had Mr Jurlina been discharged without conviction then the seven years rehabilitation period in the legislation would have expired later this year. He would then be able to pursue his rugby career without being subject to the strict border controls of countries such as Canada, the United States, Japan and Australia.

[26]              On the third factor, the assessment of gravity of offending against the identified consequences of conviction, Ms Houra’s submission is that if the gravity of the offending is low and there is a real and appreciable risk that the conviction will adversely affect Mr Jurlina’s employment prospects and rugby playing prospects, then those consequences are out of all proportion to the gravity of his offending.

Discussion

[27]I will consider for myself the three-step analysis.

[28]              First, the gravity of the offending having regard to the offending itself and  Mr Jurlina’s personal characteristics.

[29]              At the sentencing hearing, although Mr Jurlina’s comments in his affidavit and the comments he made to the investigator were not entirely consistent, there were issues as to whether Mr Jurlina had been able to see the birds on the water and whether he had done, or was able to do, anything to mitigate the harm. Judge Maxwell viewed the video taken by Mr Jurlina to form her own view. Subsequent to the hearing before me, I did the same.

[30]              In my view, Judge Maxwell was entitled to conclude that Mr Jurlina filmed the incident from the front of the boat. The flock of fairy prions was large and obvious. Mr Jurlina drove the boat at high speed directly into the flock without attempting to slow or change course. He continued to video the incident throughout. The Judge was entitled to conclude that Mr Jurlina prioritised capturing the footage rather than slowing down or deviating away from the birds.

[31]              There was boisterous hilarity in the boat during the incident, and the posting of the video footage together with the text, “We fuckn love birds, eh,” and laughing emojis, is evocative of this.

[32]              Given the video and the comments of the ornithologist, I agree with the Judge that the offending can be characterised as moderately serious. It would be of greater seriousness had the encounter between boat and birds not occurred so quickly.

[33]              I also agree with the Judge that Mr Jurlina’s steps in mitigation are entitled to credit. Given the strict liability nature of the offence he had no real option but to enter a plea of guilty. But he did do voluntary work with a relevant organisation and he did make a donation to a relevant charity.

[34]              I do not consider that these belated acts of realisation are sufficiently weighty to reduce the characterisation of the gravity of Mr Jurlina’s offending to “low”. I think the Judge was correct in her characterisation of “something less than moderate” offending.

[35]              As to the direct or indirect consequences of a conviction for the offending, I am not entirely in agreement with the Judge.

[36]              Mr Jurlina lost his job as a result of his offending. The Judge did not foresee that. However, the Judge was correct in her observation that, generally, offenders can expect adverse consequences for their employment. In this case, it is clear that it was not the conviction which caused Mr  Jurlina  to  lose  his  job  but  the  offending.  Mr Jurlina has never had name suppression and even if he had been discharged without conviction the details of his offending would still have caused the outrage it did.    Mr Jurlina, in his most recent affidavit, has provided copies of social media comment. Almost all of those comments can be characterised as vitriolic. But they are directed to what he did and not to his conviction.

[37]I note that Mr Jurlina is again employed in his trade.

[38]              I conclude that the Judge did not err in her assessment of the effect of a conviction on Mr Jurlina’s employment.

[39]              The second identified consequence is the possible effect on Mr Jurlina’s international rugby playing career if, by its existence, his conviction forfeits the protection which the Clean Slate legislation would have afforded him from 20 October 2024.

[40]              The Criminal Records (Clean Slate) Act 2004 prescribes carefully when a person becomes eligible for its protection. A prerequisite is that the person must be free of criminal conviction for a rehabilitation period of seven years from the conviction to which the Act can then apply.

[41]              I disagree with the Judge that this is an irrelevant consequence because at the time of the current conviction the rehabilitation period for Mr Jurlina’s previous convictions had not expired. The fact that, absent a conviction, a defendant will avoid a detriment prescribed by other legislation, or gain a benefit under other legislation, is a consequence to be taken into account for the purposes of ss 106 and 107 of the Sentencing Act 2002.

[42]              However, the Judge is correct in her view that the existence of his previous convictions is not alleged to have affected Mr Jurlina’s international rugby career to this date. There is no cogent evidence that Mr Jurlina might be afforded the opportunity to play rugby for Croatia in countries that would refuse him entry because of the previous convictions. Proof of that was not required; but evidence that it was a real and distinct possibility was. Mr Jurlina’s affidavits do not go that far. In any event, the Clean Slate legislation would not protect Mr Jurlina from the consequences of misleading the immigration authorities of another country if that were discovered while he was in that country.

[43]              Finally, the third step of the analysis does not require fine balancing of consequences with gravity. The test is “out of all proportion”. Even if Mr Jurlina had established that there was a real and distinct possibility that he might be picked for the Croatian rugby team to play in a country where his previous convictions might prove to be an impediment, I would not find that test met. In this regard, I agree with the Judge that in offending of this sort the sentencing purpose of deterrence is to be emphasised.

Decision

[44]The appeal is dismissed.

Application for access to court documents

[45]              At the hearing, Mr Kapitan for the New Zealand Herald made an oral application for a copy of the video recorded by Mr Jurlina. He followed that with a written application. I understand why Mr Kapitan has made the request. Having regard to the important constitutional principle of open justice, the video record showing Mr Jurlina’s offending is the best way of showing the public what happened. But, I decline the application because of the likely effects on Mr Jurlina if I grant it.

[46]              As I understand it, the video circulated widely on social media and at the time of his sentencing sparked the outrage to which I have referred. Mr Jurlina lost his job as a result. He now has another job.

[47]              In my view, there is a very real risk that, if the video were again made public, Mr Jurlina would be subjected to more vitriol and threats and his job might again be in jeopardy. The right of the public to know has already been given effect to and it is not necessary for understanding this hearing for the video to be published again.

[48]              Mr Kapitan’s application is denied. He may, of course, have a copy of this judgment as it is part of the formal court record and available to the public.

Brewer J