Nicholls v Canterbury Regional Council HC Christchurch CRI 2010-409-133

[2010] NZHC 1720

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-409-000133

DEREK JOHN NICHOLLS

Appellant

v

CANTERBURY REGIONAL COUNCIL

Respondent

Hearing:         22 September 2010

Counsel:         R A Harrison for Appellant

C E Butchard and M C Dysart for Respondent

Judgment:      22 September 2010

ORAL JUDGMENT OF PANCKHURST J

Introduction

[1]      This is an appeal against a decision of Judge Somerville in which he declined to discharge Captain Nicholls without conviction pursuant to s107 of the Sentencing Act 2002.

[2]      The appellant faced two charges for offences committed on 25 March 2008. He was charged in his capacity as the master of the Rainbow Warrior; that he first of all sailed a vessel in Lyttelton Harbour without taking a pilot on board contrary to the Maritime Transport Act 1994.

[3]      The second charge was that he refused to comply with a direction of the harbour master to remove the Rainbow Warrior when it was positioned so as to obstruct another vessel, the Hellenic Sea, this being an offence against the Local

Government Act 1974.

DEREK JOHN NICHOLLS V CANTERBURY REGIONAL COUNCIL HC CHCH CRI-2010-409-000133  22

September 2010

[4]      After quite some considerable delay the appellant pleaded guilty to the two offences on 9 June of this year.  Judge Somerville heard submissions and proceeded immediately to impose sentence.  In the end result he entered convictions on the two charges, ordered payment of costs of $130 on each charge but imposed no further penalty.  As I have already noted the appeal is confined to his decision that it would be inappropriate to grant a discharge without conviction.

The background facts

[5]      The Rainbow Warrior is a motor yacht.  It is registered out of Amsterdam. At all relevant times it was under charter to Greenpeace International.  The vessel is some 55 metres in length and has a gross tonnage of over 540 tons.  This means that in a harbour such as Lyttelton it is required to have the assistance of a pilot on board when under steam.

[6]      The Rainbow Warrior came into port at Lyttelton on 16 March and was involved  over  succeeding  days  in  various  Greenpeace-related  activities.     On

25 March it was due to leave at 8.00 pm in the evening.  However, at about 4.00 pm in the afternoon the Rainbow Warrior left its berth in the inner harbour.  This was unexpected and without notice to the harbour authorities.  Captain Nicholls sailed the vessel a short distance through the moles and into the outer harbour.  He then headed in the vicinity of Cashin Quay.

[7]      This was observed by a reporting officer, Mr Sinclair.  He made radio contact with the Rainbow Warrior and obtained a response to the effect that it was departing the harbour and did not need a pilot, despite the regulation which required as much. Mr Sinclair consulted with others and then resumed radio contact and issued an instruction that the Rainbow Warrior should return immediately to the inner harbour. There was no response to the instruction.  Instead the vessel continued to the vicinity of Cashin Quay.   It was then positioned adjacent to the Hellenic Sea which was berthed towards the eastern end of the quay and near a right angled breakwater named Sticking Point.  There was another vessel to the western side of the Hellenic Sea.   In the result, the position taken up by the Rainbow Warrior was such as to leave little or no distance for the Hellenic Sea to manoeuvre in if it sought to leave

the Cashin Quay area.  Having taken up that position anchors were laid out from the

Rainbow Warrior with the assistance of rigid inflatable dinghies.

[8]      At about 5.00 pm a pilot boat went to the vicinity.  On board was the acting harbour master, one or more police officers and a port representative.  They boarded the Rainbow Warrior and spoke to the appellant on the bridge.   He said that the vessel was staging a peaceful protest.   The Hellenic Sea was fully loaded with a cargo of coal which was bound for China.  It was awaiting a change in the tide in readiness to sail to sea at 7.00 pm when there would be sufficient depth of water for it to make way.

[9]      The  protest  action  was  taken  because,  as  I  understand  it,  Greenpeace considers that coal exported to China is used in a manner which endangers the planet on account of adding to the incidence of global warming.  Hence, the protest action which was taken on this occasion.

[10]     About half an hour later at 5.30 the regional harbour master arrived at the scene.  He was briefed, assessed the situation arising from the deliberate manner in which the Rainbow Warrior had been positioned and concurred in the view that unless it was moved there would be risk entailed in the Hellenic Sea seeking to leave at its arranged departure time.   He therefore went to the bridge and, after some discussion, issued a direction to Captain Nicholls to move the Rainbow Warrior so that the Hellenic Sea could sail.  He was met with a refusal.

[11]     In these circumstances the port authorities were left with little option but to move the Rainbow Warrior which they were able to do by using a tug which pushed the hull of the Greenpeace vessel.  It was forced in a westerly direction and sufficient room was then made for the Hellenic Sea to manoeuvre out of its berth in Cashin Quay and depart at about 7.20 pm, therefore only minutes late in terms of its planned departure.   This was fortunate because there was only approximately a half hour window during high tide when it could leave the quay.

The sentencing decision

[12]     Judge Somerville reviewed the factual background in similar terms to the outline which I have just given.  He then referred to the test for a discharge without conviction which is contained in s107 of the Sentencing Act:

Guidance for discharge without conviction

The court must not discharge an offender without conviction unless the court

is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

The Judge then rightly recognised the need to assess the gravity of the offending, the direct and indirect consequences of the entry of a conviction and, finally, the need to undertake a discretionary evaluation as to whether entry of a conviction would be out of all proportion to the gravity of the offending.

The gravity of the offending

[13]     With reference to the gravity of the offending, he noted that the maximum penalty for the first offence was one years imprisonment and a fine of $10,000 and for the second offence a fine of $10,000.   He observed that the two statutory provisions were obviously designed to promote maritime safety in inner harbour areas such as Lyttelton Harbour.

[14]     He accepted submissions which had been made that Captain Nicholls was an extremely experienced ship’s master who had, in addition, an impeccable safety record.  He also accepted that the manoeuvre in which he had been involved entailed his sailing about one and a half kilometres, at three knots, and in circumstances where particular care was taken in an endeavour to avoid risk to other users of the harbour.   The Judge, however, noted that the manoeuvre, while not causing any obvious risk to other vessels or persons on the wharf, had caused “fairly massive disruption” to the port.  As I understand it, this was a reference to the need to board the Rainbow Warrior and, in due course, to use the force of a tug boat in order to reposition it so that the other vessel could sail.

[15]     By way of summary, in relation to his assessment of the offending, he said this:

[29]     In as much as these legislative provisions are aimed at navigational safety and bearing in mind that there was no compromise to anyone’s safety, this offence, as far as its effects were concerned, is at the bottom of the scale.

[30]   But one needs to recognise that it was the top of the culpability scale. This was an action that was not only premeditated but carefully planned. Certainly that planning ensured that no other person was put at risk, but it completely removes from Captain Nicholls any shred of a claim to not being aware of what he was doing.  It was deliberate.  Moreover, his counsel made no secret of the fact that this was an attention seeking action designed to catch the interest of the national, and possibly international, media in order to draw attention to the cause.

[31]    As is plain from the facts I have recited, Captain Nicholls planned his actions.  He was warned both before he piloted the vessel without a pilot and before he was asked to move the vessel.   His actions therefore took the consequences into account. Indeed, he specifically acknowledged that.

[16]     The Judge commented that ordinarily offending of this nature would have attracted a conviction and a financial penalty of perhaps $5,000.   He added that reparation was not in issue, because a significant sum had already been paid by Greenpeace to the harbour authorities well in advance of the District Court sentencing.

[17]     The first argument advanced by Mr Harrison, to which I will come in a moment, involved a particular focus on the second of these paragraphs.  To my mind the assessment under the gravity head contains an omission in one respect.  I shall return to that feature in a moment since, as I apprehend the case, it goes to the heart of the second and major argument advanced in support of the appeal.

Direct and indirect consequences of a conviction

[18]     Next the Judge considered the direct and indirect consequences of the entry of a conviction.  He referred to an affidavit sworn by Luis da Costa, the operations manager for Greenpeace.  His affidavit disclosed that the Rainbow Warrior was one of three vessels operated by Greenpeace worldwide.  Captain Nicholls has been with Greenpeace since 1990.   He has, as confirmed by Mr da Costa, an impeccable record,  including  in  relation  to  humanitarian  work  which  is  undertaken  by

Greenpeace in addition to its protest activities.  For example, Captain Nicholls had played a lead role as master of a Greenpeace vessel at the time of the 2004 tsunami which affected Aceh in Indonesia.

[19]     The affidavit focused upon the implications of the entry of a conviction in relation to future travel.  Mr da Costa said that obtaining a visa to travel to a number of countries was likely to be problematic should a conviction be entered:

22.Specific  countries  where  I  am aware  Greenpeace  has  experienced difficulties having crew members enter include the United States of America and Canada.   The immigration officials have complete discretion over who can enter the country.   Having any difficulties with a New Zealand based Captain enter the United States is a particular  concern  as in  addition to  any campaigns  with  a  United States port of call, the United States is a common point of transit from New Zealand to the rest of the world.  Not being able to transit in the United States is likely to cause  considerable logistical  difficulties, such that we could be forced to assign a different Captain that we can be assured will be able to join the ship in time and unlikely to have any travel delays.

23.Greenpeace International is concerned that a conviction will seriously impact Captain Nicholls’ livelihood at sea within and outside Greenpeace.

[20]     The Judge also noted a consequence which had already occurred which he obviously considered as relevant, albeit it was not a consequence which would flow from entry of the conviction itself.   This was the suspension of Captain Nicholls’ offshore master’s certificate.   Following this incident Maritime New Zealand conducted an inquiry.   This culminated in a detailed report which confirmed that Captain Nicholls’ licence had been suspended for a period of time.   The report discussed the full background to the incident and other matters pertaining to Captain Nicholls’ background.  In the end result a conclusion was reached that a temporary suspension, coupled with a final warning, was a sufficient disciplinary response. The Judge noted this and commented that he envisaged the final warning would act as a deterrent so far as the appellant was concerned.

[21]     In light of the report the Judge considered it unlikely that Captain Nicholls’ certification would be at risk at the end of its current five year term.  He thought his certificate was likely to be renewed when it fell for renewal in 2012.

[22]     At [42] he summarised what he considered the likely consequences of entry of conviction to be:

It  may  be,  however,  that  the  entry  of  a  conviction  and  the  travel consequences that it might have for Captain Nicholls in any vessel being captained by him would result in his employment as a Greenpeace captain coming to an end.

The proportionality assessment

[23]     Finally, the Judge turned to the third aspect whether the consequences of a conviction, direct and indirect, would be out of all proportion with the seriousness of the offence.  Before I mention his assessment of this aspect it is convenient to refer to the appellant’s personal circumstances.

[24]     He is 59 years of age.  He has no previous history, at least in New Zealand. But the report from Maritime New Zealand confirmed his involvement in two previous similar events which had occurred in Australia.  The first was in April 2004 at Port Kembla.  The appellant was a master of a vessel which entered a port without a pilot, and subsequently obstructed an accessway.  Two charges were laid as a result of this event.  One was withdrawn and the other was dismissed on account of what was described as Captain Nicholls’ good character.

[25]     The second event occurred at Newcastle in May of 2005.  It resulted in the issue of an infringement notice, again for entering a port without a pilot and also for causing an obstruction to other vessels which apparently spanned a period of some hours.

[26]     The   Judge   referred   to   these   previous   matters   in   his   evaluation   of proportionality.  He then continued at [45] by saying this:

This is not the first occasion in which the Courts have had to determine what weight should be given to a criminal act undertaken by way of protest in pursuit of the “greater good” of humanity.  Crown counsel has referred me to R v Minto [1982] 1 NZLR 606 of the Court of Appeal where in a passage on page 607 the judgment of the Court delivered by Woodhouse P contains the following passage:

If citizens were to break the law with impunity on the basis of being guided by moral principles anarchy would result.  Obviously that must be

right.   At the same time it needs to be emphasised that an appropriate sentence must reflect both the circumstances of the offence itself and the circumstances of the offender. In that overall consideration, the gravity of the offending must be given due weight.   So too must the motivation (recognised in this case in his opening remarks by the Judge himself) which led many decent and otherwise responsible citizens into situations here in New Zealand where misguidedly or stupidly they overstepped the bounds of lawful protest.

Minto, I should add, was a case concerning protest action taken during the 1982

Springbok Tour.

[27]     The Judge then continued as follows:

[48]     Captain Nicholls has taken a deliberate act to break the laws of this country, having done so in a similar fashion twice in Australia.  While I can understand his motivation, he knew when he acted as he did that he would be breaking the law and would be liable for those consequences.  One of those consequences is a conviction.  He cannot act in this fashion on a number of occasions and expect that on each the Court will make an exception because his illegal activities were undertaken with a clear moral conscience.

[49]      It was specifically pointed out to Captain Nicholls that he risked criminal consequences by acting as he had indicated, yet he deliberately refused to move his vessel.  He cannot now escape the consequences of his action.  A conviction for what he did, despite the penalties imposed on him by Maritime New Zealand, is not out of proportion to the gravity of what he did.

Hence, a conviction was entered together with the order to pay costs.

Grounds of appeal

[28]     Mr Harrison, in a forceful argument, advanced to my mind two essential grounds.  The first centred upon para [30] of the sentencing remarks where the Judge referred  to  Captain  Nicholls’  conduct  as  at  the  “top  of  the  culpability  scale”. Mr Harrison submitted that this was a significant overstatement of the gravity of the offence.  I shall return to this proposition in a moment.

[29]     The second, and I think more fundamental ground of appeal, is that the Judge did not properly apply the test enshrined in s107.  Here the complaint was that in considering whether to grant a discharge the Judge focused on the protest nature of the conduct, which was obviously deliberate, and on that basis concluded that a conviction was required.  Otherwise, as he put it, the moral force of the law would be

devalued.  This, said Mr Harrison, was not a dispassionate exercise of the statutory test and, hence, that the Judge had subverted the test on account of this particular focus.

Evaluation of the arguments

“Top of the culpability scale”

[30]     I have already quoted the paragraph where the Judge used the phrase “top of the culpability scale”.  I accept that there is some merit in the criticism levelled by counsel.  I would describe it as an unhappy choice of words.  I am sure that what the Judge intended to emphasise by this phrase was that this was deliberate offending, indeed offending which had been carefully planned.  On the other hand I also agree with Ms Butchard that when one reads the gravity assessment of the judgment as a whole, this particular comment is put in proper perspective.

[31]     There is frequently a need in sentencing to distinguish cases on account of pre-planning.  Offending which can be described as impulsive, spontaneous or rash may be regarded in one light, whereas offending which is premeditated may be seen in another.  This can frequently be an important feature to be considered in relation to a s107 application.  What to my mind the Judge was seeking to emphasise with this particular phrase was that this was not a case of impulsive, spontaneous or rash behaviour; but really behaviour which was at the other end of the spectrum.  This was deliberate conduct, but  I think that was  as much as the Judge intended to convey.

[32]     It  was  entirely  legitimate  for  him  to  make  an  observation  as  to  the premeditation involved.  Indeed, s9(1) of the Sentencing Act identifies the level of premeditation as a relevant aggravating feature.   Hence, although I agree with the criticism that the Judge’s choice of words was unfortunate, I do not think, once the relevant section of the judgment is read as a whole, that he thereby overstated the true gravity of the offence.

Was there an appropriate application of the statutory test?

[33]     As can be seen from the paragraphs which I have already quoted from the proportionality evaluation, the Judge placed significant emphasis on the fact that this was protest action.   He then went on to say that equality before the law is a very important consideration.   He referred to Minto in support of the proposition that protesters cannot be allowed to act with impunity.   He also, at this section of the judgment, made express reference in para [48] to the two previous events which had occurred some years ago in Australia.   Indeed, his concluding observation in para [48] was “He [Captain Nicholls] cannot act in this fashion on a number of occasions and  expect  that  on  each  the  Court  will  make  an  exception  because  his  illegal activities were undertaken with a clear moral conscience.”   Shortly thereafter the final conclusion was expressed, namely that a conviction would not be a disproportionate response in all the circumstances of this case.

[34]     The essence of Mr Harrison’s argument, it seemed to me, was that at this part of the judgment the Judge focused upon the protest action undertaken by the appellant, and the need to respond to that aspect of the offending, at the expense of a more  orthodox  balancing  of  gravity  against  consequences.     Hence,  counsel submitted, the Judge had been seduced, perhaps following reference to Minto, to the view that because this was deliberate protest action a conviction had to be entered.

[35]     I return to the matter I mentioned earlier which, to my mind, was an omission from the gravity evaluation.   I think that part and parcel of that evaluation should have been reference to the fact that this was not the first occasion upon which Captain  Nicholls  had  been  involved  in  like  conduct.    Previous  like  conduct  is relevant to the assessment of the gravity of the subject offending.  This too is spelt out in s9(1) of the Sentencing Act.

[36]     On a reading of the judgment as a whole I think it was the omission to mention and emphasise this factor in the gravity assessment which led to perhaps an over-emphasis of it when it came to the proportionality evaluation.  Because the fact is, as the Judge noted, that where an offender has had benevolent treatment in the past  in  relation  to  similar  conduct,  it  is  not  likely  that  he  will  be  viewed  so

favourably on a further occasion.   In short, previous like conduct is likely to be decisive against a further discharge without conviction.

[37]     I agree entirely with his observations that all must be equally subject to the law.  That does not mean that there is not room for the motivation for offending to be taken into account.   But, particularly where there has been previous like conduct born of protest action, a continuation of such conduct cannot be so easily condoned. Otherwise, to my mind, s107 would become a charter whereby protest action would be singled out for special treatment.  Put another way, there would not be equality before the law.

[38]     This, I think, was a case where the consideration which tipped the balance against a discharge was the fact of the previous similar offending in Australia.   I agree with Mr Harrison that the gravity of the offending was not particularly significant, of itself, if one only has regard to what occurred in Lyttelton harbour on the day of the event.  But the gravity assessment takes on a different light once one factors in that this was deliberate, if not calculated conduct, of a similar kind to that which Captain Nicholls had been involved in on previous occasions.

[39]     I  also  agree  with  Mr  Harrison  that  the  consequences  of  the  entry  of  a conviction in this case, at least in terms of risk, are quite serious.  Indeed, the Judge found as much.   Nevertheless, in my view, once the gravity of the offending is assessed, including with reference to the previous conduct, I think the die was cast.

[40]     For these reasons which effectively mirror those of Judge Somerville, subject perhaps to some structural rearrangement of his thinking, I consider that he was right

not to grant a discharge in this case.  Accordingly the appeal is dismissed.

Solicitors:

R A Harrison Barrister, PO Box 287, Blenheim 7240 for Appellant

Raymond Donnelly, PO Box 533, Christchurch 8140 for Respondent
(M C Dysart, Canterbury Regional Council, PO Box 345, Christchurch 8140)