Paenga v Ministry of Fisheries HC Wellington CRI 2009-485-150

[2010] NZHC 195

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

CRI-2009-485-150

REECE PAENGA

Appellant

v

MINISTRY OF FISHERIES

Respondent

Hearing:         16 February 2010

Appearances:  M Baker for the appellant

M Snape for the respondent

Judgment:      4 March 2010 at 4.05pm

JUDGMENT OF CLIFFORD J

Introduction

[1]      On 18 August 2009 Mr Paenga was found guilty after a summary trial in the

District Court by Judge Harrop on 15 charges under s 252(1)(e) of the Fisheries Act

1996  of  knowingly  acting  in  contravention  of  the  Fisheries  Act  1996  to  obtain  a benefit. Mr Paenga’s offending involved him unlawfully gathering and selling

257.3 kilograms of paua.  Mr Paenga was subsequently sentenced by the Judge on 13

October  2009 to two years’ and three  months’  imprisonment  on  each  of  those  15

charges,  to  be  served  concurrently.   Mr  Paenga  now  appeals  that  sentence  on  the basis that it is manifestly excessive.

PAENGA V MINISTRY OF FISHERIES HC WN CRI-2009-485-150  4 March 2010

Background

[2]      Mr Paenga was charged following an extensive undercover operation carried out by the Ministry of Fisheries called “Operation Paid”.   Operation Paid involved

an undercover Fisheries officer acting as a purchaser of black market paua.  Around

60 people, including Mr Paenga, were charged as a result of Operation Paid.   The people charged carried out a variety of roles in connection with black market paua. Mr  Paenga,  and  a  number  of  others,  were  divers  for,  and  sellers  of,  illegally harvested paua.

[3]      Mr Paenga’s offending occurred over a six month period from late 2007 to the early 2008. Typically it involved  the  undercover  Fisheries  officer  taking  Mr Paenga and other acquaintances of his who were also divers and who were charged

as  part  of  Operation  Paid,  to  and  from  diving  sites  on  the  Wellington  and  South Wairarapa  coasts.   Once  the  diving session  was  completed,  the  undercover  officer would take the divers back to a garage in a Wellington suburb he was using for the purposes of his undercover operation.   There each diver’s paua would be weighed, and he would be paid individually for it.

[4]      The 15 separate charges Mr Paenga faced related to 15 separate transactions between Mr Paenga and the undercover Fisheries officer.  Mr Paenga was one of the more significant offenders, with the total weight of paua sold by him equalling 257.3 kilograms.

[5]      Mr Paenga submits that his sentence is manifestly excessive because:

a)        having  regard  to  s 7(1)(h)  and  ss 8(1)(g),  (h),  (i)  and  (j)  of  the Sentencing  Act  2002,  the  sentencing  Judge  did  not  give  sufficient weight to various matters set out in Mr Paenga’s pre-sentence report;

b)        the starting point of two  and a half  years adopted by the sentencing

Judge was too high; and

c)        the sentence lacks parity with other  sentences imposed on offenders following Operation Paid, in particular the sentence of two years and ten months imposed on a Mr Kerry Smith, whose unlawful gathering and  sale  of  paua  involved  some  894  kilograms,  as  compared  to  Mr Paenga’s 257 kilograms.

Discussion

[6]      The  issue  here  is  whether  the  end  sentence  imposed  on  Mr  Paenga  is manifestly excessive.

[7]      It   is   well-established   that   what   matters   in   sentence   appeals   is   the appropriateness  of  the  sentence  actually  imposed,  and  not  whether  the  sentencing Judge  followed  the  now  orthodox  procedure  in  setting  that  sentence. Here  Mr Paenga’s sentence can only be manifestly excessive if the Judge identified a wrong starting point or incorrectly approached questions of mitigation, or both, so that as a result the end sentence he imposed was manifestly excessive.   In order to consider Mr Paenga’s appeal against the end sentence imposed on him, I therefore propose to consider this appeal by reference first to the starting point identified, and then to the allowance given for mitigating factors.

[8]      In identifying the starting point of two and half years, the Judge referred to

the case of R v Dewes[1], to a schedule of sentences he had been provided with relating

to other offenders prosecuted as a result of Operation Paid and – in particular – to the sentences the Judge himself had imposed on a Mr Smith and a Mr Rawiri.

[1] R v Dewes HC Gisborne AP20/02, 7 October 2002.

[9]      Having observed that the Crown submitted that, based on R v Dewes[2]  and the other sentencing that had occurred as a result of Operation Paid, a two and a half to three year starting point was appropriate in Mr Paenga’s case, the Judge reasoned:[3]

[2] Above, n 1.

[3] Ministry of Fisheries v Paenga DC  Wellington CRI-2008-032-002305, 13 October  2009,  at [18]-[20].

I happen to be the one who sentenced the ringleader or central offender, or at least one of them, Keri Smith, who was well known to you and a friend of

yours and probably it is your relationship with him, which, with the benefit

of hindsight you would wish you never had because he is the one who led you towards this offending.   I sentenced him on 4 September 2008 and the

starting point for him was three and a half years, but he had pleaded guilty at

an  early  stage  and  ultimately  the  end  sentence  for  him  was  2  years  10 months’ imprisonment.  He had 894 kilograms of paua collected and sold to the  undercover  Fisheries  officer  and  clearly  he  was  in  a  more  serious category than you.  I have no difficulty accepting that.

I do accept the Crown submission made today by Ms Mallet that there has been quite a range of offending the subject of sentences now and many of the ones that have received home detention, or a sentence of less than two years,  have  involved  amounts  of  paua  of less  than  100  kilograms.   You,  I think, are in a medium category, below Mr Smith, but above those with less than 100 kilograms.  Although it is difficult to compare cases in terms of the real details, especially without full copies of all the judgments, I simply have a  schedule,  it  has  been  possible  to  ascertain  appropriate  and  consistent starting  points  for  the  offending  in  light  of  the  amounts  involved.    I  am satisfied  that  a  starting  point  of  two  and  a  half  years  at  least  is  certainly justified here and indeed I think more could be justified.

Just recently on 2 October I sentenced Mr Rawiri who had 87.65 kilograms and there I adopted a starting point of 18 to 19 months’ imprisonment and he had 11 charges.  Yours is a lot more serious than that in view of the amount involved.  I, therefore, in terms of the process, accept that a starting point of two and a half years, as a concurrent  sentence on all of the 15 charges, is appropriate.   I think it is the least restrictive starting point that I can adopt. As  I  indicated  earlier  I  do  not  propose  to  uplift  that  for  your  previous convictions.

[10]     For Mr Paenga, Ms Baker challenged that starting point by reference first to

the  decision  the  Judge  referred  to,  namely  R  v  Dewes,[4]   and  then  by  reference  to issues of parity she said were raised in terms of other sentences imposed following Operation Paid.  As the appeal proceeded before me, it was on those issues of parity that most attention was placed.

[4] Above, n 1.

[11]     In Dewes, Salmon J described that case as the first appellate consideration of offending under s 252 of the Fisheries Act.  Having noted the particular significance

of s 254 of that Act, which requires the Court in imposing sentence to have regard to the  difficulties  inherent  in  detecting  fisheries  offences  and  the  need  to  maintain adequate deterrence against the commission of such offences, Salmon J concluded, at [18], that:

In  my view a small commercial operation would justify consideration of a non-custodial  sentence. An operation  of  medium  commercial  size  would

justify a penalty in the range of one to two years and there could be some modification depending on whether a fine was imposed as well.  Penalties of three years or more would be reserved for large commercial operations.

[12]     The Judge did not go on to explain what he meant by small, medium or large commercial operations. Moreover, and as  Judge  Harrop  himself  observed  in sentencing Mr Smith, Dewes is not a formal guideline or tariff decision, although it

is  persuasive  and  of  value.   I  think  the  most  that  can  be  said  is  that  the  sentence challenged here would not appear to be out of line with those indicated by Dewes as being available.

[13]     As regards parity issues, Ms Baker referred first to the sentence imposed by the Judge on Mr Smith.   Ms Baker also relied, somewhat more generally, on other sentences that had been imposed as a result of Operation Paid. For the purposes of my  hearing  of  this  appeal, I was provided  by the  respondent  with  a schedule of Operation Paid sentencings that had been updated from that which had been provided to Judge  Harrop when he  sentenced Mr Paenga. By reference to that schedule, during the hearing I noted in particular sentences which had been imposed

on the offenders Pearse, Snowden and Tuapawa.  As the schedule provided gave me details of end sentences, but not starting points or other relevant information, I asked the respondent to provide me with some further material on those three sentences.  I received that information by memorandum filed on 23 February 2010.

[14]     I subsequently convened a telephone conference with counsel for Mr Paenga and  the  police  to  discuss  certain  aspects  of  that  additional  information. It is with particular reference to that additional information that I now discuss parity issues.

[15]     As relevant, the sentences imposed on those co-offenders can be summarised

as follows:

a)        Mr Smith pleaded guilty to offending involving 31 separate instances.

From a three and a half year starting point the Judge (Judge Harrop) imposed a six month uplift for previous Fisheries Act offending, and allowed a discount of some 14 months, or approximately 30 per cent,

for the guilty pleas  resulting in an end sentence of two years and ten months.

b)        Mr Snowdon pleaded guilty to offending involving 478.75 kilograms

of paua in some 14 transactions.   The Judge took a starting point of one year and six months  months’ imprisonment, uplifted that starting point by six months due to previous Fisheries Act offending and other aggravating  factors,  and  allowed  an  eight  month  discount  (33 per cent)  for  a  guilty plea  resulting  in  an  end  sentence  of  one  year  and four months.

c)        Mr  Pearse  was  found  guilty  of  offending  involving  some  222.75 kilograms  of  paua,  in  nine  transactions.   The  Judge  (Judge  Harrop) identified a starting point of two years and three months, reduced that by  three  months  to  give  credit  for  personal  mitigating  factors,  and imposed an end sentence of ten months’ home detention coupled with

200 hours community work.

d)       Finally, Mr Tuapawa  pleaded   guilty  to   charges   involving  some

30 transactions where unlawfully taken paua totalling 615.5 kilograms had been sold to the undercover officer.   There the Judge in question identified a starting point of two years’ and two months’ imprisonment  and,  after  credit  for  a  guilty  plea,  imposed  an  end sentence of nine months’ home detention.

[16]     The important question here, in my judgement, is whether an issue of parity

is raised at this point by reference to the starting point sentences identified, in terms

of the influence of those starting points on the end sentences.

[17]     The law here is well-established.

[18]     Section 8(e) of the Sentencing Act provides that, in sentencing, the Court:

must take into account   the   general   desirability   of   consistency   with appropriate sentencing levels and other means of dealing with offenders in

respect   of   similar   offenders   committing   similar   offences   in   similar circumstances;

[19]     A leading decision dealing with sentence appeals on the ground of disparity

is  R  v  Lawson.[5]   The test set down in that case is “whether  a  reasonably  minded independent  observer  aware  of  all  the  circumstances  of  the  offence  and  of  the offenders would think that something had gone wrong with the  administration  of justice”. The other test that is sometimes applied is that from R v Rameka,[6]  being whether “the disparity is unjustifiable and gross”. The threshold is, therefore, relatively high. It is not enough that there is simply a disparity in the sentences: it must be an unjustifiable disparity and a minimal disparity will not qualify.

[5] R v Lawson [1982] 2 NZLR 219.

[6] R v Rameka [1973] 2 NZLR 592.

[20]     Brookers comments as follows:

In sentencing co-offenders, parity is achieved not simply by reference to a

co-offender’s culpability, but by sentencing each offender appropriately for his or her role in the overall offending, taking into account any aggravating

or mitigating features personal to the offender: R v K (2003) 20 CRNZ 62

(CA).   Ideally, co-offenders should be sentenced by the same Judge at the same  time. This  is  not  always  possible,  with  the  result  that  disparity sometimes arises.  Where an offender is being sentenced, and in the Judge’s view the sentence imposed on a co-offender was manifestly lenient, it is not necessary for the Judge to impose the same sentence to ensure parity.   An inadequate  sentence  cannot  justify  additional  inadequate  sentences,  and disparity  should  not,  in  itself,  produce  an  unjustifiable  sentence:        R  v Feterika [2008] NZCA 127; R v Te Kaha CA49/05, 5 July 2005; R v Walter (1992)  9  CRNZ  178  (CA). However  some  reduction  of  the  sentence imposed  on  an  offender  may  be  required  to  reduce  the  disparity  to  some degree, in order to remove the justifiable sense of grievance that would arise from a gross discrepancy with a co-offender’s sentence: R v Thompson and Pullen-Burry CA245/98; CA267/98, 22 December 1998.[7]

[7] Bruce Robertson (ed) Adams on Criminal Law  –  Sentencing (looseleaf ed, Brookers) at SA8.06(1).

[21]     Even if a sentence is otherwise  appropriate, it may be  altered  on  appeal if there is a disparity between that sentence and  the  sentence  imposed  on  another offender convicted for the same type of offence. The fact, however, that one of two co-offenders has received too short a sentence is not necessarily a  ground  for

interfering with an appropriate, though longer, sentence passed on the other.

\

[22]     As Judge Harrop observed in sentencing Mr Paenga, and in sentencing others

of the Operation Paid offenders, this was all serious Fisheries Act offending.   The sentence the Judge imposed on Mr Smith involved a starting point of three and a half years.  That starting point not only recognised Mr Smith’s “ringleader” role but also the greater number of occasions on which he offended.   That Mr Smith received an end sentence of two years’  and  ten  months’  imprisonment  reflected  the  discount allowed for his guilty plea. I am not persuaded that issues of parity arise as regards Mr Paenga’s sentence compared with that of Mr Smith alone.

[23]     Turning to the sentences imposed on Mr Tuapawa and Mr Snowden, I think the distinction to be drawn here, in terms of the criminality involved in this offending, relates more to the number of occasions on which these offenders unlawfully dived for and harvested paua than it does to the weight of paua harvested. Whilst the weight of paua involved is a relevant consideration, no doubt each diver would have taken as much paua as they could on each diving trip. Seen in that light, and as Mr Snape submitted, I think Mr Tuapawa was fortunate in the sentence imposed upon him. To use that sentence as a reference point in these circumstances

for Mr Paenga would not, in my view, be appropriate. There is, however, the sentence imposed upon Mr Snowden. In my view, Mr Snowden’s and Mr Paenga’s offending are not materially different in the criminality involved.  If anything, and by reference to weight, Mr Snowden’s offending is more serious.

[24]     Standing back, I think that a mid-range starting point in the vicinity of two years  can  be  seen  as  being appropriate  for  the  level  of  criminality involved  in  the offending  committed  by  Mr  Snowden  and  Mr  Paenga.  Having  regard  to  that conclusion, and the sentence imposed on Mr Snowden, I think a reasonable observer would  conclude,  considering  the  end  sentences  that  resulted  and  putting  aside separately  identifiable  mitigating  and  aggravating  factors,  that  something  did  go wrong.  In my view, the sense of grievance that Mr Paenga would feel goes beyond that which may result from acceptable inconsistencies between sentences, and does meet the test where it becomes appropriate for an appellate court to intervene.

[25]     In my judgement, and in these circumstances, a starting point of 21 months for Mr Paenga addresses those concerns.

[26]         I acknowledge this is a lower starting point than identified for the purposes of Mr  Pearse’s  sentence. At  the  end  of  the  day,  however,  Mr  Pearse  received  the benefit of home detention.  Moreover, I do not consider that the outcome as between Mr  Pearse  and  Mr  Paenga  creates  an  unacceptable  inconsistency  in  sentencing outcomes.

[27]     I  turn  now  to  the  question  of  discount  for  personal  circumstances.   I  have considered  the  points  made  by  Ms  Baker,  but  do  not  consider  that  any  further discount than that allowed by the sentencing Judge is called for.

[28]     Accordingly,  this  appeal  is  allowed,  and  an  end  sentence  of  18  months  is substituted for that originally imposed.

[29]     At the original sentence hearing there was an application for home detention.

In the circumstances of Mr Paenga having already served time in prison, Ms Baker did not renew that application.

“Clifford J”

Solicitors:   Melanie Baker, P O Box 30937, Lower Hutt for the appellant

Crown Solicitor, Wellington for the respondent ([email protected])