Neilson v Ministry for Primary Industries

[2013] NZHC 541

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2012-463-78 [2013] NZHC 541

STUART MCKENZIE NEILSON

Appellant

v

MINISTRY FOR PRIMARY INDUSTRIES

Respondent

Hearing:         19 March 2013 (Heard at Rotorua)

Counsel:         D G Hayes for the Appellant

J J Rhodes for the Respondent

Judgment:      19 March 2013

(ORAL) JUDGMENT OF WOODHOUSE J

Solicitors / Counsel:

Mr D G Hayes, Barrister, Hamilton

Mr J J Rhodes, Ronayne Hollister-Jones Lellman, Office of the Crown Solicitor, Tauranga

NEILSON V MINISTRY FOR PRIMARY INDUSTRIES HC TAU CRI-2012-463-78 [19 March 2013]

[1]      Mr Neilson appeals against conviction and sentence.  This is in respect of a charge under s 67D of the Forests Act 1949 of unlawful milling of timber.

[2]     Mr Neilson pleaded guilty to the charge after a defended hearing had commenced.  This was a charge against Mr Neilson and a Mr Hutching.  The hearing was stopped following what seemed to be admissions from Mr Hutching which led to the Judge advising him to seek advice.   Following this, in circumstances that I need  not  go  into,  Mr  Neilson  entered  the  guilty plea.    The  charge  against  Mr Hutching was withdrawn.

[3]      The maximum penalty is a fine of $200,000.  The sentence imposed was a fine  of  $15,000  together  with  what  was  described  in  the  sentencing  notes  as reparation in favour of the respondent Ministry for Primary Industries of $15,000.

[4]      In the course of submissions, and following a suggestion from me, counsel sought an opportunity to discuss matters. As a consequence of that discussion, based on  indications  from  me,  it  is  appropriate  to  deal  first  with  the  appeal  against sentence.

[5]      The Judge took a starting point of a fine of $50,000.  This is to be assessed, firstly, against the maximum penalty of $200,000.   In my opinion the initial impression is that this does appear to be very high as a starting point for the quantity of timber involved. The total of timber was just over 17 cubic metres.

[6]      Before fixing the starting point of $50,000 the Judge referred to two other cases of sentences under the same provision of the Forests Act.  One was a sentence he had imposed where the penalty was a fine of $5,000.  The Judge did not mention the  name  of  the  case  but  it  appears  to  have  been  Ministry  of  Agriculture  and

Fisheries v Land Milling.1    The Judge noted in his sentencing notes in the present

case that it was a case involving a company which had had the appropriate permit but “failed to carry out the necessary paperwork and logged timber sustainably but without the paperwork in place”.  The Judge referred to another decision, of Judge

Whitehead, involving unsustainable logging on the West Coast and resulting in a starting point of a fine of $100,000.  The significance of that case, in my judgment, in relation to a starting point of $50,000 in this case, is that the quantity of timber involved was 587 cubic metres.  In the present case the Judge did at that point note the  quantity  of  just  over  17  cubic  metres  in  this  case  but,  with  respect,  the relationship between the two does not appear to have been carried through.  Having said  that  it  is  important  also  to  record  that  sentencing  is  not  some  sort  of mathematical exercise where fines are calculated using a slide rule.  However, and as I indicated in a different way before, the starting point in this case does appear to be manifestly excessive.

[7]      I have been referred to one other case: Ministry of Agriculture and Forestry v Milne.2   In broad terms, the facts of the offending in that case appear to be closer to the facts alleged in this case (and facts recorded in the summary of facts to which Mr Neilson pleaded guilty).   There was in the Milne case pre-meditation and a commercial element. There were three defendants. The highest fine was $6,500.

[8]      The  Judge,  for  reasons  carefully  set  out  in  his  sentencing  observations, reduced the starting point to a fine of $40,000.  He then referred to what he described as actual costs of prosecution in excess of $50,000.  This refers to matters that were itemised in the summary of facts.  The Judge, in effect, determined that part of the fine he had assessed should be applied in payment of the costs with the remainder imposed in a formal way as a fine.  There was some further adjustment in the light of evidence provided by Mr Neilson of his financial circumstances.  This resulted, in a formal sense, in the fine of $15,000 and what was described as the order for reparation of $15,000.   It does appear that there may have been an error in terminology in referring to reparation of $15,000, although the sentencing notes are fairly specific in that regard.  If it was indeed intended as true reparation then there was no jurisdiction to make the order.  This is because the order is in favour of the Ministry being the prosecutor and the Ministry was not a victim of the offence. Taking a broader view, the $15,000 reparation may in fact have been intended as an allowance for expenses and possibly pursuant to s 62 of the Forests Act which makes

provision for an order for payment of loss or damages if a conviction is entered. However, whatever the true construction of the second sum of $15,000 should be, it all needs to be assessed against a broad starting point for financial penalties of

$50,000.

[9]      Mr  Rhodes,  for  the  respondent,  responsibly  acknowledged  that  if  an assessment was made at first instance of a true starting point by way of fine related solely to the gravity of this offending, the bottom end of the starting point would be around $15,000.

[10]     In my judgment, based on the information that is presently available to me, and which I have already outlined, I consider that the starting point for a fine should not be more than $15,000.  In recording that conclusion I have also taken account of the nature of this offending, with its adverse consequences for the environment, coupled with the need to seek to ensure that people who choose to offend in this area do not regard fines as simply part of the expense of an illegal operation.

[11]     If there is a starting point of around $15,000 for all forms of financial penalty, consideration must then be given to any reduction. At paragraph [22] the Judge said:

… The principle [sic] mitigating feature is that Mr Neilson has no previous convictions and that he is now, on my calculation, about 64 years old and is, on information he provides to me, a sickness beneficiary.  I will deal with those issues at the appropriate point in determining what the fine should be but those matters alone do not provide a particularly significant mitigation.

…

[12]     In  my  respectful  opinion  Mr  Neilson’s  age  and  the  fact  that  he  has  no previous convictions are reasonably substantial mitigating factors of a personal nature.   With other types of offending – and by that I mean other than offences within this environmental field – the first conviction for a 64 year old would, in general, justify substantial credit.

[13]     Having regard to all of the matters that I have referred to I do consider that the maximum financial penalty that could properly be imposed on the appellant is

$10,000. And this is a figure arrived at – as should now be very apparent – by fixing a starting point related solely to the gravity of the offence as alleged by the informant

and then making what is a reasonably conventional allowance for Mr Neilson’s age and the absence of any previous convictions (which can be described in another way as his good character over a life of 64 years).  I have added that in, which is to an extent, putting it another way what I have already said, because I have not further factored in any consideration in relation to Mr Neilson’s financial capacity to pay a fine of $10,000.  There is evidence of limited financial means.  However, I am satisfied that a fine of $10,000 is justified in all the circumstances and having regard to the provisions of the Sentencing Act 2002 concerned with assessment of fines.

[14]     Accordingly, in relation to the appeal against sentence the sentences imposed are quashed and a fine of $10,000 is substituted.

[15]     There remains the appeal against conviction.   Given the conclusion on the fine Mr Hayes, on behalf of Mr Neilson, advises that the appeal against conviction is

abandoned.

Woodhouse J