Sea-Air Fishing Limited v Ministry of Fisheries HC Nelson CRI-2011-442-000014
[2011] NZHC 1047
•29 June 2011
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CRI-2011-442-000014
BETWEEN SEA-AIR FISHING LIMITED Appellant
ANDMINISTRY OF FISHERIES Respondent
CRI-2011-442-000016
AND BETWEEN BRYAN LYNDON MCMANAWAY Appellant
ANDMINISTRY OF FISHERIES Respondent
Hearing: 22 June 2011
Counsel: T H A Spear for Appellants
S K O'Donoghue for Respondent
Judgment: 29 June 2011
In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 3.45pm on the 29th day of June 2011.
RESERVED JUDGMENT OF GENDALL J
[1] Bryan McManaway is a commercial fisherman operating through his company, Sea-Air Fishing Ltd. They both appeal against sentences imposed when they were charged with offences under the Fisheries Act 1996 (the Act). The company faced four charges of being a permit holder, and having a general approval granted under s 111 of the Act subject to a condition requiring it to make returns in respect of both commercial and recreational catch taken during the fishing trips. It
was also charged under the Fisheries (Reporting) Regulations 2001 when it failed to
SEA-AIR FISHING LIMITED V MINISTRY OF FISHERIES HC NEL CRI-2011-442-000014 29 June 2011
complete a trawl catch effort return as required by the regulations. Mr McManaway was charged with two offences, namely that being a person authorised by general approval to use his commercial vessel for recreational fishing during commercial trips, he failed to comply with a condition of that approval, namely limiting each fisher on that vessel to one day’s recreational entitlement because he possessed more than the daily bag limit of fish.
[2] Both the company and Mr McManaway were convicted after a defended hearing. The sentence imposed upon the company by the District Court Judge, was a single fine of $2,812.50 on one information with court costs, and convicted and discharged on the other informations including the charge under the Fisheries (Reporting) Regulations. On the charges against Mr McManaway personally, Judge Zohrab imposed the same fine of $2,812.50 for the first information and entered a conviction and discharge in respect of the second. The manner in which he framed those penalties, or came to impose them, is discussed later.
[3] The company and Mr McManaway appeal against the sentences on the conventional basis that they are manifestly excessive. Counsel advances the primary argument that Judge Zohrab erred in law when referring to the aspect of deterrence as being a “paramount principle” in the sentencing for breaches of this fisheries legislation. So, counsel submitted, the Judge erred by placing improper and undue weight on the aspect of deterrence when setting the starting point for determining such sentences. The Judge had set them at $7,500 globally whereas Mr Spear, on behalf of the appellants, submits it should have been no higher than $6,000.
Background facts
[4] The essential facts are that on 29-30 March 2010 Mr McManaway, through his company, was fishing commercially via a bottom trawl. Catch records returned were substantially incomplete. He was seen to remove two sacks and some shopping bags full of fish as his own recreational catch, which was well in excess of the applicable daily recreational limit of 20 fish. A total of 111 fish of various varieties were taken and 14 were less than the prescribed size. It was accepted that he did not
intend to commercially profit from it. The company itself had six prior reporting convictions, but Mr McManaway none.
[5] Forfeiture of the vessel would follow as a matter of law but the parties were in agreement, as was Judge Zohrab, that such would be disproportionate to the offending and the Judge fixed a sum of $3,000, agreed by the parties, to be paid within 28 days to secure release of the vessel.
Judge’s sentencing approach
[6] Judge Zohrab observed that the maximum penalty for the company’s breach of condition offending was a fine of $100,000 on each of the four counts and forfeiture of the vessel. On the one charge of failing to complete a trawl catch return, the maximum penalty was a fine of $20,000. For the breach of condition offending by Mr McManaway, the maximum penalty was a fine of $100,000 on each of the two counts. The Judge noted that he had to take into account the purpose of the Act, including difficulties inherent in detecting fisheries offences and the need to maintain adequate deterrence, to ensure sustainability of fishing resources. An affidavit of Mr McManaway was before the Judge concerning the financial position of the appellant and his company, which was said to be “parlous”. The Judge had further information relating to personal mitigating features of Mr McManaway.
[7] Submissions of counsel included argument to the effect that deterrence did not assume any “paramountcy”, because in terms of Hessell v R and the Sentencing Act 2002 all principles were to be equally weighted and none was paramount over the other.1 Judge Zohrab dealt with that when saying:2
I am still of the view that deterrence is one of the main principles to feature in terms of sentencing fisheries matters. The reasoning for that is because of the purposes of the legislation and also s 254 which reminds the Court to have consideration to the difficulties inherent in detecting fisheries offences, and the need to maintain adequate deterrence against the commission of such offences.
1 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
2 Ministry of Fisheries v Sea-Air Fishing Ltd DC Nelson CRI 2010-042-2700, 9 March 2011 at
[31].
[8] The Judge was mindful of remarks of the Supreme Court in Hessell because he went on to say:3
And I bear in mind the decision in Hessell and obviously the contents of the Sentencing Act, and deterrence is only one of the principles, but in my view the legislature has specifically given paramountcy to deterrence as a factor in any sentencing here, and I still regard it very much a factor to assume some importance in fisheries cases.
[9] When imposing penalties Judge Zohrab recognised that the issue was how to fix starting points when maximum fines were described as “huge”, and the offending was difficult to detect because much of it happened at sea. There are few comparable cases. The prosecution had suggested global fines totalling $10,000 was appropriate for the total offending. Mr Spear, on behalf of both appellants, contended it should be in the range of $4,000. Judge Zohrab said that it was not wise to “over analyse the situation too much” and took as his starting point as a global figure to reflect all offending, the sum of $7,500. He allowed a discount for the guilty pleas and personal circumstances and from the resulting figure of $5,625 the Judge divided this equally as between the company and Mr McManaway. He imposed a fine in respect of $2,812.50 in respect of each offender on one information only, imposing no fines in respect of the other offences including that under the Fisheries (Reporting) Regulations.
The issue
[10] This Court does not lose sight of the ultimate issue in an appeal against sentence, namely whether the individual fines of $2,812.50 as against each appellant were manifestly excessive so as to require adjustment by an appellate court. For the appellants, Mr Spear’s contention was that a starting point of $6,000, in total, was all that was required with a 25 per cent discount for pleas and personal factors. He said that, as a question of law, Judge Zohrab erred by emphasising deterrence as a paramount purpose for sentencing such offences, given the provisions of the Sentencing Act 2002. In deference to his careful argument I deal with that submission, but repeat that in the end the ultimate issue on this particular appeal is
whether the fines imposed were, in all the circumstances, manifestly excessive.
3 At [32].
Appellant’s submissions
[11] In summary, Mr Spear contended that the provisions of s 254 of the Act are now to be read subject to the later statutory sentencing principles embodied in the Sentencing Act. Section 254 of the Act makes it mandatory for a Court to take into account (that is give consideration to), as one of its sentencing purposes, the issue of deterrence. That section provides:4
254 Matters to be taken into account by Court in sentencing
If any person is convicted of an offence against this Act, the Court shall, in imposing sentence, take into account the purpose of this Act and shall have regard to—
(a) The difficulties inherent in detecting fisheries offences; and
(b) The need to maintain adequate deterrents against the commission of such offences.
[12] I observe the section speaks of “deterrents” in the plural. Mr Spear submitted that it was wrong to take “deterrents” as described in the Act simply as a purpose on its own without having regard to the aggravating and mitigating factors in each individual case as required by the Sentencing Act. He emphasised that in terms of the Supreme Court decision in Hessell v R an overall assessment of the sentencing principles was required and that s 7 made it clear that any one of the purposes then set out were not be given any greater weight than the other. Section 7 provides:
7 Purposes of sentencing or otherwise dealing with offenders
(1) The purposes for which a court may sentence or otherwise deal with an offender are—
(a) to hold the offender accountable for harm done to the victim and the community by the offending; or
(b) to promote in the offender a sense of responsibility for, and an acknowledgment of, that harm; or
(c) to provide for the interests of the victim of the offence; or
(d) to provide reparation for harm done by the offending; or
(e) to denounce the conduct in which the offender was involved;
or
4 I observe the section speaks of “deterrents” in the plural.
(f) to deter the offender or other persons from committing the same or a similar offence; or
(g) to protect the community from the offender; or
(h) to assist in the offender's rehabilitation and reintegration; or
(i) a combination of 2 or more of the purposes in paragraphs (a)
to (h).
(2) To avoid doubt, nothing about the order in which the purposes appear in this section implies that any purpose referred to must be given greater weight than any other purpose referred to.
[13] As a consequence, Mr Spear’s argument is that the Judge was wrong to express the view that deterrence in this case was a paramount principle or consideration. He contended that every person should be treated equally in the eyes of the law under the New Zealand Bill of Rights 1990 so that a person convicted of an offence under fisheries legislation should not be treated on any different basis from someone who offends under criminal or other legislation. He said that if it was Parliament’s intention to contradict that aspect of natural justice it would have specifically stated in the Fisheries Act that over and above all other legislation deterrence was a paramount factor in sentencing (I am not sure how that might have been able to be done. The Sentencing Act 2002 had not been enacted at that time).
[14] Mr Spear submitted that the proper approach was to first assess the mitigating and aggravating features as they related to the offender and then to see whether those were such as to require a deterrent sentence. He said the appellant and his company need to be “encouraged rather than deterred” but the Judge erred because he was, he felt, bound by the provisions of s 254.
Discussion
[15] I do not propose to review in any great detail the judicial and legislative history behind s 254 of the Act. But it is clear from judicial pronouncements prior to the enactment of the Act that the Courts regarded that fines imposed should act as
deterrence. So, too, other sanctions such as forfeiture, were seen as among the necessary deterrents. Some examples go back as far as 1983:5
.... the Court must by its approach on penalty, press upon the others the gravity of the matter.
[16] Later in Davis v Ministry of Agriculture and Fisheries:6
The doubling of the maximum penalty in 1986 was a plain demonstration of the Legislature’s concern for conservation of the nation’s fishery resource. The Courts appear to have been slow to respond to it. Bearing in mind that in this kind of case the level of penalties must be more than a modest licence fee for an illicit business activity, I question the adequacy of the penalties even before the 1986 increase. Certainly those imposed following it were at first totally inadequate.
[17] There the Judge was referring to the very substantial increase in penalties that had been provided by the legislature. As a further example, there is Ministry of Agriculture and Fisheries v Lima, where his Honour said that the same principle espoused in Davis had to apply with even more force, stating:7
... deterrence is the dominant consideration with offending of this type. Offences in the third category will nearly always be deliberate and premeditated. Such offenders can be assumed to subconsciously weigh prospective gains against the risks of detection and the probable penalty. Deterrence operates best in that situation. Unfortunately, this means that those offenders who are caught must bear the burden of passing on a message to others.
[18] Lastly, as a further example, is a decision of the Full Court in Ministry of
Agriculture and Fisheries v Equal Enterprise Ltd, where it was said:8
All cases show that the legislation aims to preserve the national asset of fisheries. Parliament has considered it tolerable that individuals should be punished with great financial severity in enforcing that aim presumably because policing the regulatory scheme is so difficult and there is heavy reliance on the honesty of all participants in the industry. Any fine imposed must be seen by persons involved in commercial fishing as being more than a modest licence fee; along with automatic forfeiture of quota, boat and equipment, any fines imposed should act as a deterrent to those minded to buck the quota management system.
5 Jones & Haldane v Ministry of Agriculture and Fisheries HC Whangarei M103 /81, 3 May 1983 at 7.
6 Davis v Ministry of Agriculture and Fisheries HC Invercargill AP57/88, 9 December 1988 at 6.
7 Ministry of Agriculture and Fisheries v Lima HC Auckland AP146/93, 26 August 1993 at 7.
8 Ministry of Agriculture and Fisheries v Equal Enterprise Ltd [1994] 2 NZLR 473 (HC) at 477.
[19] And further, the Court adopted without qualification Fisher J’s conclusion in
Lima that:9
deterrence had to be the dominant sentencing consideration; offending in the most serious category of offences will always be deliberate and premeditated and offenders will subconsciously weigh prospective gains against the risks of detection and probable penalty.
[20] The legislature clearly heeded those judicial remarks because s 254 of the later 1996 Act set out the provisions to which I have referred.
[21] The argument advanced by Mr Spear, however, is that those statutory provisions are subsumed and, in a sense, overtaken by the Sentencing Act being the larger and more general body of law. So, he argued, that the legislature by codifying the purposes of sentencing in general words, overrode or subsumed the specific provisions of s 254. The arguments advanced by Mr Spear fail for a number of reasons.
[22] First, Judge Zohrab did not in fact say that deterrence (or “deterrent” penalties) was the prime and only focus of sentencing for fisheries matters. He said the deterrence was “one of the main principles to feature in terms of sentencing fisheries matters”.10 It was not a feature to be applied without ignoring other matters, and the Judge did not say so.
[23] Secondly, s 7 of the Sentencing Act does not say that the weight to be given to each of the principles is equal. It simply says it is not to be implied that because of their order in the section, any one is to be accorded greater or lesser weight because of that reason. Obviously, depending upon the particular circumstances of the offender and the offence, different purposes may assume greater importance. Some of the purposes may have no application at all to a particular offence or offender. Others may have much greater weight or significance and require more
emphasis on deterring others from committing the same or similar offence.
9 At 478.
10 At [31].
[24] It has long been recognised that deterrence is a crucial aspect in health and safety offences where very substantial penalties are imposed upon companies for dangers in the workplace. So, too, major drug dealing offences, where deterrence is a consideration which often outweighs personal factors which relate to an offender’s rehabilitation or reintegration. There are very many examples.
[25] Hessell v R does not say, as counsel endeavoured to assert, that all s 7 principles needed to be considered and none was paramount. What it says is that the weight to be given to the individual purposes of sentencing in ss 7 and 8, and the aggravating and mitigating factors in s 9 are matters for a sentencing judge to determine and apply his/her mind to in a measured way on any particular occasion. What is required is a careful judicial evaluation of individual cases, applying the purposes and principles of the Sentencing Act viewed against the maximum penalties provided in the legislation the subject of the offending, but also heeding other legislative directions that arise from those other statutes. Application of various
principles may often pull in different ways. But as the Supreme Court said:11
... the proper application of punishment for offending remains, as it was prior to the 2002 legislation, an evaluative task for sentencing judges and those judges who determine sentencing appeals.
[26] I do not accept that s 7 places any restriction on a Judge as to what weight or priority that should be given to any of the sentencing purposes in any individual case. That will always depend on the particular circumstances of the offence, the legislation under which it occurred and the offender. Section 8 of the Sentencing Act requires that a Court “must” take into account a number of factors, including seriousness and type of offence in comparison to other types of offences as indicated
by the maximum penalties prescribed for them12 and also the general desirability of
consistency.13 Weight to be given to individual purposes of sentencing in ss 7 and 8 and aggravating and mitigating factors in s 9 are a matter for the sentencing judge. These have to be applied in the context of the particular occasion or situation that
confronts the Judge.
11 At [43].
12 Section 8(b).
13 Section 8(e).
[27] Mr Spear argued that the proper approach is to assess mitigating and aggravating features and then decide if they require a deterrent penalty. That is a misapprehension as to what deterrence means. It can be either specific, relating to the offender being sentenced; but more especially in fisheries cases it can be general deterrence, that is to send a message to others who might be inclined or tempted to break the law. That type of deterrence is outward rather than inward looking. It is clear from the wording of s 254 that “deterrent” penalties are to be kept in mind, or had “regard to”. Questions of aggravation or mitigation relate solely to the individual offender and his personal deterrence. But the general deterrent aspect of a penalty, fine or forfeiture (whatever it may be) relates to the effect on others. Mr Spear’s argument proceeds on the false assumption that aggravating and mitigating factors in the usual sentencing exercise has nothing to do with that aspect.
[28] The fisheries legislation does not make it compulsory for a deterrent sentence to be imposed. It simply requires that the Court must have regard to the factors set out in s 254. Judge Zohrab did have regard to that as he specifically records, and as he said deterrence was only one of the principles. He was not wrong to say that it was a factor to assume some importance in fisheries cases. The provisions of s 254 support him. They are not inconsistent with the provisions of the Sentencing Act. In my view he did not err in law in the manner in which he approached the sentencing, which was not only entirely appropriate but merciful to the appellants.
[29] Turning to the quantum of fines. The company had six convictions for fishery offences over a period of three years and the sole director, Mr McManaway, was primarily responsible for those. The need for specific deterrence of this commercial fisher as well as general deterrence was obvious. So, too, the need to protect sustainable resources and to deter others from being tempted to break the law as it relates to fishery offending, had to be given greater weight by a sentencing judge if the individual circumstances require it. That was a view Judge Zohrab reached. He might well have imposed a far greater financial penalty, if a comparison
were to be made with (say) the case of Waikari v Ministry of Fisheries,14 where an
amateur, non-commercial, fisherman who took excess recreational shellfish was fined a total of $7,500 where the maximum available was $30,000. In the present
14 Waikari v Ministry of Fisheries HC Gisborne AP15/04, 3 September 2004.
case, where the maximum penalty is in the six-figure range it is impossible to conclude that the fines imposed were other than modest. Indeed, the Judge actually pitched the penalties rather below that which might be said to be “deterrent”.
[30] The starting point range or the final penalties that he imposed were not manifestly excessive. And the reality is that if the starting point adopted had been at the level now submitted by Mr Spear, and the same discount had been allowed for guilty pleas and other considerations, the total fines would have been only $4,500 or
$2,250 for each of the individuals. It could hardly be said in those circumstances that the fines of $2,812.50 for each were manifestly excessive. Judge Zohrab did not err in law in the manner in which he approached the sentencing exercise. The end sentences were lenient and not one which could be described as a significant deterrent to others and are certainly not such as the Court would tinker with.
[31] The appeals of both appellants are dismissed. The Ministry is entitled to costs which are fixed in a total sum jointly payable by the appellants in the sum of
$1,000.
J W Gendall J
Solicitors:
Spear Law, Nelson for Appellants
Crown Solicitor, Nelson for Respondent
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