Moody v Ministry of Fisheries HC Whangarei CRI 2004-488-87

[2005] NZHC 1718

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2004-488-00087

NEIL RAYMOND MOODY

Appellant

v

MINISTRY OF FISHERIES

Respondent

Hearing:         19 April 2005 Appearances: C Muston for Appellant

P Magee for Respondent Judgment:     19 April 2005

ORAL DECISION OF LAURENSON J.

Solicitors:

Thorne Dallas & Partners, Whangarei for Appellant Crown Solicitor, Whangarei

NEIL RAYMOND MOODY V MINISTRY OF FISHERIES HC WHA CRI 2004-488-00087 [19 April 2005]

[1]                 This is an appeal against sentence based on a submission that the imposition of equal penalties has provided a disparity warranting relief.

[2]                 The appellant, Mr Moody, was a deckhand on a fishing boat, the Kuaka, owned by Northern Fisheries Ltd, which was in turn effectively owned by the co- offender, Mr Day, who was the skipper.

[3]                 Over a period of approximately one year, the company, Mr Day and Mr Moody, became involved in an illegal operation which involved selling on fish to a Mr Kim. Unfortunately, the fish that were sold to him was not recorded so that the appropriate adjustment could be made in relation to the quotas held by Mr Day.

[4]                 The co-offenders were charged with eight offences relating to sales to Mr Kim. Mr Day faced a further charge relating to the incorrect filling in of returns.

[5]The sentencing Judge concluded that:

… I cannot really see that there is a case to be made for treating these two defendants any differently from the way in which their co-offender [Mr Kim] has been dealt with.

[6]                 In the event each offender was convicted and fined $2,000 and ordered to pay court costs of $130 and one solicitor’s fee of $1,250. The net result was that Mr Moody paid a fine of $16,000 as opposed to Mr Day’s fine of $18,000, and both incurred court costs and the one solicitor’s fee.

[7]                 There is a significant difference in the forfeiture which applied to each individual. Mr Moody forfeited a van for which the minimum value was assessed at

$800. Mr Day forfeited items, again assessed on minimum values at $8,950. In addition, the boat used by his company, but apparently owned by his brother, was also forfeited. The minimum value of that was assessed at $35,000.

[8]                 Mr Moody was charged as a party pursuant to s66(1) of the Crimes Act 1961. So far as the actual delivery and sale of fish was concerned, he was fully involved. Fish was taken from the landing point at Opua to his mother’s property at Ruakaka,

and he was involved as the driver of the van delivery of the fish on the majority of the occasions. According to the summary of facts, it was not known what monies he received in respect of the illegal activities.

[9]                 The appeal against sentence was mounted by Mr Muston on the ground that it had been accepted that Mr Moody was a lesser player than Mr Day; that he was indeed, only a deckhand doing what he was told by his boss. The Crown conceded that submissions were made at sentence where Mr Day’s counsel conceded that Mr Day was the principal offender and had received monies from the illegal sales, therefore some distinction should made when sentencing. Unfortunately, there is no reference in the sentencing notes which refers to this point of distinction.

[10]             It was Mr Muston’s submission therefore, that for both the offenders to be sentenced on the same basis for the charges in which they both appeared, was effectively to create a disparity, in other words, Mr Moody, being the secondary party, should have received a lesser sentence.

[11]             In Geoffrey G Hall Sentencing Law and Practice para 5.5.2, the learned author notes that before the apparent disparity can be addressed on appeal “There must be such a marked and unjustified disparity that it is not consonant with the appearance of justice”. Mr Muston submits that that is the case here. Unfortunately, the basis for arguing a reduction of sentence on the basis of disparity is not referred to in the decision at all. The question is whether there should be something done about that now, possibly with the admission of further evidence. Mr Magee submitted that these are matters that could have been addressed at the time of sentence, possibly on the basis of a disputed facts hearing.

[12]             In the final result, I am persuaded that the appeal should not be granted. Given the extent to which the appellant, Mr Moody, was involved in the offending, even though he may not have been an organiser, and taking into account the period  of time over which the offending occurred, I have difficulty in seeing that the fact that he was not the original organiser does not create in terms of culpability a marked and unjustified disparity.

[13]             The other matter that causes me to come to the conclusion I have is that, even if there was some basis for arguing a disparity, that, in practical terms, is overtaken by the marked difference in the amounts that each of the two offenders forfeited. As  I have said, and for the above reasons, the appeal is dismissed.