Takerei v Ministry of Primary Industries

[2013] NZHC 2493

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2013-441-13 [2013] NZHC 2493

BETWEEN

TYLER JAMES TAKEREI

Appellant

AND

MINISTRY OF PRIMARY INDUSTRIES

Respondent

Hearing:

28 and 29 August 2013 and by subsequent memoranda

Appearances:

A McLean for Appellant

K Laurenson for Respondent

Judgment:

24 September 2013

JUDGMENT OF LANG J

[on appeal against sentence]

Thisjudgment was delivered by me on 24 September 2013 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

TYLER JAMES TAKEREI v MINISTRY OF PRIMARY INDUSTRIES [2013] NZHC 2493 [24 September 2013]

[1] Mr Takerei pleaded guilty in the District Court to two charges laid under the Fisheries Act 1996 (“the Act”). He was charged with being in possession of more than the daily limit of ten paua, and being in possession of undersized paua. The maximum penalty for each offence was a fine of $250,000 or a community-based sentence.

[2] Mr Takerei also pleaded guilty to a charge of being in possession of more than the daily limit (but not more than three times the daily limit) of kina. That charge was laid under the  Fisheries (Amateur Fishing ) Regulations 1986,  and carried a maximum penalty of a fine of $10,000 or a community-based sentence.

[3] On 9 April 2013, Judge Ross sentenced Mr Takerei to 300 hours community work on all charges. Mr Takerei appeals against that sentence. He accepts that a sentence of community work was appropriate because he is not in a position to pay a fine. He contends, however, that the sentence the Judge imposed was manifestly excessive having regard to the nature of the offending and his guilty pleas.

Background

[4] At about 5 pm on 16 November 2012, Mr Takerei and three companions were travelling back to Havelock North following a diving trip at Pourerere Beach. The police stopped their vehicle in Havelock North. A fishery officer was in attendance, and inspected the vehicle. This revealed two bins and several bags containing quantities of paua and kina. The fishery officer found a total of 233 ordinary paua in the vehicle, of which 228 were less than the minimum required length of 125 millimetres. It is illegal to take or be in possession of more than ten paua per day per person.

[5]    The fishery officer also found 457 kina in the vehicle.  It is illegal to take or be in possession of more than 50 kina per day per person.

[6]     When Mr Takerei was subsequently interviewed, he acknowledged taking 50 to 60 paua, and to participating in the gathering of the kina.

The Judge’s decision

[7] Unfortunately, the Judge’s sentencing  remarks were   not  recorded  or transcribed. He has now provided a minute setting out his recollection of the basis on which he imposed the sentences on Mr Takerei. Not surprisingly, he has little recall of detail. In his minute, he identifies the following aggravating features of Mr Takerei’s offending:1

1. …

   Especiallyin regard to Paua taken and in defendant’s possession, the grossly excessive number in excess of the daily maximum of 10. Here there was a total of 233 Paua, when over the four persons collecting together, the maximum should have been 40.

   [The]appellant admitted that of the Paua, 50 to 60 were taken by him, which, if correct, is still five to six times his daily legal limit.

   Ofthe 233 Paua taken in gross, 228 were undersize. Whichever way one looks at it, very nearly all of the Paua taken, or very nearly all of the Paua he admitted to fisheries officers he had taken, were undersize.

   [8]  The Judge says that he considered a significant sentence of community work was appropriate to reflect the gravity of the offending. He recalls imposing similar sentences of community work on other members in Mr Takerei’s group.

The appeal is adjourned

[9] In their written submissions, counsel for Mr Takerei  contended  that  the sentence was manifestly excessive whilst counsel for the Ministry argued to the opposite effect. Neither, however, provided any information to assist the Court regarding the important issue of current sentencing levels for this type of offending in the District Court. I considered that these were likely to provide the best guide as to whether or not the sentences the Judge imposed were within the available range.

[10] I therefore adjourned the appeal so that counsel could undertake further research. When the hearing resumed on 29 August 2013, counsel for the Ministry tendered four very helpful schedules setting out the penalties imposed in the District

1       Ministry of Primary Industries v Takarei DC Hastings, 22 July 2013 (Minute).

Court throughout New Zealand in relation to possession of excess and undersized paua. Counsel were then given an opportunity to provide further submissions in writing. I am grateful to them for their assistance in this regard.

Further submissions

[11] Counsel for the Ministry submits that the schedules demonstrate that sentences of 100 hours  community work or more are not uncommon for more serious offending in this field. In some cases involving possession of four to nine times the daily limit of paua, sentences of 200 to 250 hours community work have been imposed. She accepts that that is not, however, universally the case.

[12] In cases where sentences of around 200 hours community work have been imposed, the offenders have generally been charged under s 232(1) of the Act. Counsel for the Ministry advises me that charges are usually laid under that section where the number of paua is reasonably significant, or where the defendant has previous convictions for similar offending. Section 232 carries a maximum penalty of a fine not exceeding $250,000.

[13] Counsel for Mr Takerei points out that there is a reasonably large cluster of cases in which sentences of 40 to 100 hours community work have been imposed for being in possession of 30 to 150 excess paua. There is then a smaller group of cases in which sentences of 150 to 250 hours community work have been imposed for being in possession of the numbers of paua within the same numerical range.

[14]   Importantly, however, she points out that over the last three years no sentence of more than 250 hours community work has been imposed on an offender charged with being in possession of excess or undersized paua. She contends that this strongly suggests that the sentences imposed in the present case were outside the available range. She also points to the fact that one of Mr Takerei’s co-defendants was sentenced to 200 hours community work on 30 April 2013 by a different Judge in respect of the same offending.

[15]  Finally, counsel for Mr Takerei points out that Mr Takarei did not harvest all of the illegal paua. She submits that he should be sentenced on the basis of the fact that he admitted to harvesting 50 to 60 paua himself.

Decision

[16] It is difficult to make meaningful comparisons between  the  facts  of  the present case and those in individual cases listed in the schedules. Some of the schedules do not include important information such as whether or not the offender had previous convictions for similar offending. Nevertheless, when viewed overall, the schedules provide a helpful guide regarding current sentencing patterns in the District Court.

[17]   It is material, in my view, that the upper end for offending in this area appears to be around 250 hours community work. It is also significant that no sentences above that level have been imposed in the last three years. The material that has now been provided therefore persuades me that the end sentence of 300 hours community work was outside the available range, particularly having regard to the fact that Mr Takerei entered guilty pleas to the charges he faced. This indicates that the Judge must have adopted a starting point of around 400 hours community work before making allowance for the guilty pleas.

[18] I do not agree, however, that Mr Takerei ought to have been sentenced on the basis that he was in possession of 50 to 60 paua in his own right. Although he accepted that he had gathered that number, he must also accept collective responsibility for his group’s decision to harvest a total of 233 paua. Having said that, Mr Takerei is obviously not wholly responsible for the offending.

[19]   Several factors are relevant to an assessment of an appropriate starting point in the present case. First, there is the number of excess paua. Secondly, the vast majority of the paua were under the legal size limit. Thirdly, there must be an uplift to reflect the kina offending.

[20] I consider that the paua offending should have attracted an overall starting point of around 200 hours community work, with an uplift of 60 hours to reflect the kina offending. From the end starting point I would deduct 60 hours, or just under 25 per cent, to reflect Mr Takerei’s guilty pleas. This produces an end sentence of 200 hours community work, being the same sentence that Mr Takerei’s co-offender received on 30 April 2013.

Result

[21] The appeal is allowed. The sentences of 300 hours community work on the paua charges are quashed. Concurrent sentences of 200 hours community work are substituted in their place.

[22] The sentence of 100 hours community  work on the charge of being in possession of excess kina is quashed and a concurrent sentence of 45 hours community work is substituted in its place.

Lang J

Solicitors:

Public Defence Service, Hawke’s Bay Crown Solicitor, Napier