Paul v Ministry of Fisheries HC Wellington CRI 2011-485-02

[2011] NZHC 387

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2011-485-02

TREVOR MARK PAUL

Appellant

v

MINISTRY OF FISHERIES

Respondent

Hearing:         29 March 2011

Counsel:         C J Tennet for Appellant

S K Barr for Respondent

Judgment:      25 March 2011

JUDGMENT OF RONALD YOUNG J

Introduction

[1]      On eight occasions between December 2007 and May 2008 Mr Paul sold paua to an undercover Fisheries officer and others.  There was 1,222 paua with

109 kilograms of paua meat.   He sold the paua for $1,959 although the wholesale value was over $14,000.

[2]      In the District Court he was sentenced to 13 months’ imprisonment after his guilty plea for offences under s 233 of the Fisheries Act 1966.  He says in this appeal

his sentence was manifestly excessive because:

TREVOR MARK PAUL V MINISTRY OF FISHERIES HC WN CRI 2011-485-02 25 March 2011

(a)       he was given insufficient credit for remorse and his guilty plea;

(b)he  should  not  have  been  given  an  uplift  in  his  sentence  for infringement offending;

(c)       the starting point adopted by the Judge was too high;

(d)      his sentence was inconsistent with similar offenders.

Facts

[3]      The  offending  began  with  Mr Paul  approached  an  undercover  Fisheries officer in a local hotel.  Mr Paul told the officer he had some paua for sale and it was sold for $20 cash.  They then discussed future sales.  On further occasions over the following few months Mr Paul contacted the undercover officer generally by calling at his home with paua to sell. The paua had generally been shucked.

[4]      Mr Paul  first  appeared  in  Court  on  5 August 2008  with  regard  to  this offending.    In  September  he  pleaded  not  guilty.    On  the  eve  of  his  trial  on

6 October 2009 he changed that plea to guilty, 14 months after his initial appearance. After he was remanded for sentencing he absconded.  As a result sentencing was delayed until December 2010.

[5]      As well as the 13 month sentence of imprisonment he was released on the standard release conditions for six months, an order for forfeiture of his dive suit and canvass bag was made and he was prohibited from fishing for a period of three years pursuant to s 257(1) of the Fisheries Act.

Sentencing

[6]      At sentencing the Judge adopted a starting point of 18 months’ imprisonment. He considered this equated with the starting point of a co-accused (Mr Hillman).  He then discounted that start sentence by ten per cent to reflect Mr Paul’s late guilty plea and then returned the sentence to 18 months to reflect Mr Paul’s previous fisheries

offending.   He then reduced the sentence to 13 months’ imprisonment for what he called humanitarian reasons.   These included the fact that Mr Paul is not in good health.  He had a heart attack in July 2010 and now suffers from high blood pressure and angina.  The Judge recognised that although Mr Paul had a history of drug and alcohol dependency and a difficult time in the past, he had made attempts to rehabilitate himself.

Discussion

[7]      The Judge’s methodology at sentencing was in error.   While the Judge appropriately began  with  a  starting  point,  he  should  then  have  considered  both aggravating and mitigating factors personal to Mr Paul and then, once those had been applied, he should have deducted the appropriate percentage for Mr Paul’s guilty plea.  In fact his first deduction from his start sentence was the ten per cent for his guilty plea.  This approach can skew the actual value of a guilty plea.  Whether that  methodological  failure  matters  in  this  case  will  be  exposed  later  in  this judgment.

[8]      To return to the appellant’s grounds of appeal, firstly, insufficient credit for remorse and guilty plea.  Mr Paul wrote a letter to the Judge at sentencing expressing his  remorse for the offending.    Further,  he pointed  to  the fact  that  he had  not offended regularly in the last ten years compared with his previous rate of offending.

[9]      Mr Paul  could  not  possibly  have  expected  a  reduction  in  sentence  for remorse.   Mr Paul pleaded not guilty to the charges and only changed his plea

14 months  after  his  initial  appearance.    Further,  he  absconded  while  awaiting sentence.  His letter to the Judge tried to excuse his conduct.  No credit, therefore, for remorse could possibly be given.

[10]     As to his guilty plea, this was made at the very last moment.  A ten per cent reduction was all Mr Paul could expect.

[11]     Secondly, the uplift for previous offending.  The Judge increased the sentence by two months for Mr Paul’s past offending.  Mr Paul has a long history of offending beginning back in 1976 in the Youth Court.  It is true that his rate of offending has significantly decreased in the last decade.

[12]     In  December 2004  the  appellant  was  convicted  of  possessing  undersized paua.   In addition an infringement offence was proven of possessing excess paua. The conviction and infringement offence arose out of the same set of facts.  On both Mr Paul was fined (a total of $750) and had his fishing gear forfeited.  This is his only previous fishery conviction.

[13]     The Judge in his sentencing remark mentioned that in July 2009 Mr Paul was convicted of further fishery offending.   However, this offending was after the offending  which  is  the  subject  of  this  appeal  and  should,  therefore,  have  been ignored.

[14]     Mr Paul’s  submission  in  relation  to  the  uplift  he  received  for  his  past offending is in two parts.  Firstly, he submits the Judge was not entitled to take into account the infringement offending in 2004.  He says that infringement offences do not amount to convictions for the purpose of s 9(1)(j) of the Sentencing Act 2002 and the Judge could not have properly have regard to them.

[15]     Further, he submits in any event no uplift was justified for his relatively minor previous fisheries offending.

[16]     Whether  Mr Paul  is  correct  about  s 9(1)(j)  preventing  the  infringement offence being taken into account by virtue of that subsection, does not, in my view, matter in this case.   I consider that s 9(4)(a) which allows the Court to take into account any other aggravating factor the Court thinks fit, would have allowed the infringement offence to be taken into account.

[17]     At the appeal the Ministry accepted that the previous fishery offending in

2004 could not have justified by itself an uplift for previous convictions.  However, they submitted that these convictions in combination with the appellant’s previous

bad record of dishonesty offending meant an uplift was justified.  They submitted that the appellant’s previous dishonesty offending was sufficiently similar to this offending such that it could justify an uplift.

[18]     This offending does involve dishonesty.  No doubt Mr Paul knew that he was not entitled to take the paua that he did and that he was not entitled to sell it for commercial gain. And so there is a connection between this offending and Mr Paul’s past offending.

[19]     However, while Mr Paul has a very bad record of criminal conduct over many years, his recent record of dishonesty is modest.   In the last ten years since

2001 there appears to be only one conviction for dishonesty, unlawfully interfering with a motor vehicle in 2004, for which he received a sentence of supervision.

[20]     From  1999  and  earlier  he  has  a  large  number  of  convictions  for  both dishonesty and violence for which he was imprisoned on many occasions.   What must be accepted, however, is that his conduct has significantly improved over the last ten years.  While this is not to be taken into account in mitigation of sentence I do not consider this is a case where any uplift for past conduct should have been imposed.    In  summary,  Mr Paul  has  only one  relatively minor  previous  fishery conviction and only one relatively minor dishonesty conviction in the last ten years. That combination does not, in my view, justify an uplift from the proper starting sentence.

[21]     Thirdly, the appellant says the starting point was too high.  The Judge took the starting point from  Mr Hillman’s case.   Mr Hillman and Mr Paul were both arrested as a result of a substantial undercover operation by Fisheries focussing on illegally   obtained   and   sold   paua.      Mr Hillman   was   convicted   of   selling

108.35 kilograms  of  paua  over  nine  transactions.    In  addition  he  sold  12 rock lobsters.   Although Mr Hillman’s start sentence was 18 months’ imprisonment he received a community based sentence.

[22]     Mr Hillman’s sentencing was informed by Salmon J’s remarks in Dewes v Ministry of Agriculture and Fisheries1.   In that case Salmon J suggested that an appropriate approach to offending under the 1994 equivalent of the current section was as follows:

[18]     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 upon whether a fine was imposed as well.   Penalties of three years or more would be reserved for large commercial operations.

[23]    For this sentencing I adopt that approach.   There is no doubt this was commercial offending.  Regular sales of paua were made for profit.  However, this offending was at the low end of the mid range of commercial operations.  The sales totalled just under $2,000 for just over 100 kgs of paua on the black market.  A start sentence of about 12 months’ imprisonment rather than the 18 months’ imprisonment would have more closely represented this low level commercial offending.  Kept in perspective any sentence of imprisonment for unlawfully selling $2,000 worth of paua is a strong message of condemnation.  I will return to this aspect later.

[24]     Finally, Mr Paul says his sentence was inconsistent with other offenders.  As my  comments  illustrate  Mr Paul’s  sentence  was  similar  to  Mr Hillman’s  start sentence.2   The fact Mr Hillman ultimately received a non custodial sentence related to his severe health problems and other distinguishable personal circumstances.

[25]     The appellant also argues unfair disparity with others sentenced arising from the same undercover operation.  Sentence difference alone does not establish unfair lack of parity.3

[26]     The appellant refers to three “co-offenders” as establishing the lack of parity. Firstly, Mr Williams received a sentence of four months’ imprisonment as a party to three sales of paua weighing 48.5 kilograms.  No disparity is evident in that decision

compared with the appellant’s sentence.

1      Dewes v Ministry of Agriculture and Fisheries HC Gisborne AP20/02, 7 October 2002.

2      See paras [16] to [18].

3      R v Kohey (2003) 20 CRNZ 62 (CA).

[27]     Ms Davoren pleaded guilty as a party to ten sales of 93.5 kilograms of paua. She collected the paua but received no money.  She was sentenced as a secondary party to five months community detention and nine months supervision.   Her involvement in the offending was quite different than Mr Pauls who was a principal offender.  Further, her personal circumstances were different.  The circumstances of the third offender are unknown.

[28]     In my view these cases do not illustrate any form of unfair disparity.  I reject this ground of appeal.

[29]     To return to the fundamental question of whether the overall sentence was manifestly excessive.  I accept the start sentence at 18 months’ imprisonment was too high.  I also accept the methodology used by the Judge was wrong.  I do not accept the Judge was correct to apply an uplift for previous offending for the reasons given. A reduction of ten per cent for the very late guilty plea was also correct.

[30]     The Judge gave a very generous deduction of five months or more than

25 per cent from the start sentence for what were said to be humanitarian factors.

[31]     As to this the Judge said:

[17]      I then reflected on whether that would be an appropriate sentence in this case.  I am conscious that you have serious health issues, that you have had personal problems for a long time, and that you have had a lot to contend with in your life.  It take into account your age, you are now over

50 years of age, and I accept that you are trying to rehabilitate yourself.  In the end I have determined the Court can take what I consider to be a merciful

approach  in  reducing  the  final  period  of  imprisonment.    For  humanity

reasons, I am reducing that sentence to one of 13 months’ imprisonment.

[32]     It is difficult, save for the appellant’s health, to identify a justification for such a substantial reduction.  Mr Paul had suffered a heart attack while on remand and had ongoing angina problems. This might mean a sentence of imprisonment will be harder for Mr Paul than a physically well inmate.

[33]     Given Mr Paul’s extensive record a reduced sentence for the other factors identified by the Judge could hardly be justified.  At 50 years of age Mr Paul is still offending.  He has very bad list of previous convictions and has been to prison on a

number of occasions.   The fact that his rate of  offending has slowed  is hardly justification to reduce an otherwise proper sentence.

[34]     To return, therefore, to my start sentence of 12 months’ imprisonment.  From that there should be a small allowance for Mr Paul’s medical condition.  I reduce the sentence  to  11 months’  imprisonment.     From  that  sentence  in  turn  I  deduct ten per cent for the appellant’s guilty plea leaving a final sentence of ten months’ imprisonment.

[35]     I accept that this is a small reduction in sentence from the District Court.  It could be said on that basis that the appellant has not established the sentence of

13 months’ imprisonment was manifestly excessive.   However, given the Judge’s

error in methodology I have effectively resentenced the appellant.

[36]     In  those  circumstances  the  fair  result  is  to  allow  the  appeal,  quash  the sentence  of  13 months’ imprisonment  and  substitute  a  sentence  of  ten  months’ imprisonment.

[37]     The other orders made by the Judge remain unaffected.

Ronald Young J

Solicitors:

C J Tennet, Barrister, PO Box 12 456, Thorndon, Wellington, email:  [email protected]
S K Barr, Luke Cunningham & Clere, PO Box 10 357, Wellington, email:  [email protected]