Tang v Ministry for Primary Industries

[2013] NZHC 2613

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2013-442-11 [2013] NZHC 2613

DAY VAN TANG Appellant

v

MINISTRY FOR PRIMARY INDUSTRIES Respondent

Hearing:                   8 October 2013 (AVL Conference) Counsel:      L S B Acland for Appellant

E J Riddell for Respondent

Judgment:                8 October 2013

ORAL JUDGMENT OF RONALD YOUNG J (Appeal against sentence)

[1]      Mr Tang  is  a  recidivist  paua  poacher.    On  21 August 2013  Judge Zohrab sentenced him to 11 months’ imprisonment.  He made orders forfeiting his car and equipment used in the offending and prohibited him from fishing for three years on a charge of knowingly taking paua for commercial advantage.1

[2]      On 3 July 2012 Mr Tang and his brother, Hanh Tang, drove from Nelson to Kaikoura and gathered paua from a secluded area on the coastline.  When Fisheries officers stopped them they had 139 paua.  115 were under the minimum length.  The

maximum allowance is 10 paua per person.

1      Fisheries Act 1996, s 233(2).

TANG v MINISTRY FOR PRIMARY INDUSTRIES [2013] NZHC 2613 [8 October 2013]

[3]      The appellant has four grounds of appeal:

(a)       the Judge failed to take into account evidence capable of rebutting the presumption that the paua were intended for sale;

(b)the Judge improperly justified refusing to impose home detention on the grounds of presumed commerciality;

(c)       the informant did not suggest deterrence as an important principle of sentencing but the Judge found it was relevant in this case; and

(d)      disparity in sentence imposed on the appellant’s brother compared

with the appellant was unfair in the circumstances.

Further facts

[4]      It seems that the appellant and his brother gathered the paua in shallow water at low tide.  They gathered the paua into rice sacks and shucked some of them at the water’s edge.  The two sacks were then concealed in the long grass.  The appellant and his brother then changed clothes, picked up the sacks and put them in their car and left the area.

[5]      Shortly afterwards Fisheries Officers stopped them and seized the two sacks of paua, a knife and a screwdriver from the car.  In addition to the 139 paua, there were 13 freshly shucked shells.  The appellant admitted that he and his brother had taken the paua but claimed he didn’t know what paua was.  He later admitted that was a lie and accepted that he had travelled to Kaikoura specifically to gather the paua.  Mr Hanh Tang admitted that he knew what the daily limit for paua was and that had not measured any of the paua.

[6]      In the District Court the Judge noted that Mr Tang, the appellant, had 10 previous convictions for paua offending between 2008 and 2009 and he had previously been sentenced to prison for 12 months.   He also had further similar offending in 2004.

[7]      The Judge in the District Court adopted a starting point of nine months’ imprisonment.   He considered that the relevant factors included the stealth of the offending, the serious premeditation, the presumption that the paua were for sale (legislative) with no evidence to persuade him otherwise and the additional lies to the investigating officers by Mr Tang.   The Judge uplifted the start point of nine months’ imprisonment  by  six  months  for  the  appellant’s  unabashed  recidivism against  this  vulnerable  resource  noting  this  offending  was  very  similar  to  his previous offending.  He allowed a discount of 25 per cent for the appellant’s guilty plea rounded down to 11 months’ imprisonment.

[8]      I turn now to the grounds of appeal.

Evidence rebutting presumption of supply

[9]      Section 195 of the Fisheries Act 1996 provides that where an offender takes more than three times the daily catch limit, he is deemed to have acquired the paua for the purpose of sale.  An accused can provide evidence to satisfy a Judge to the contrary overcoming the deeming provision.

[10]     The only evidence from the appellant was that he said he intended to eat the paua with his family at a party.  Unsurprisingly the Judge rejected that claim. As the Judge said, first, the appellant conducted himself dishonestly when confronted by the Fisheries officers; secondly, he had a past history of commercial sales; thirdly, the subterfuge he had employed to avoid being caught included driving from Nelson to Kaikoura in the middle  of the night  meant  all  supported  the  inference that  the appellant’s claim that the catch was for his family was untrue.

[11]     The appellant has filed an affidavit after the District Court sentencing hearing in which he swears his family intended to eat the paua.  I would not be prepared to admit this affidavit.  There was ample opportunity for the appellant to provide proper evidence including corroboration of his claim that his family intended to eat the paua and it was not for sale. This could easily have been anticipated given his past record. I reject this ground of appeal.  There was ample evidence to justify the conclusion, in any  event,  that  this  was  for  commercial  gain  irrespective  of  the  statutory presumption.

Relevance of presumed commerciality to home detention

[12]     The  appellant  says  that  the  presumption  for  sale  is  irrelevant  when considering whether home detention was appropriate.  I reject that claim.  The Judge correctly pointed to the need for significant specific deterrence especially given the appellant’s contemptuous attitude towards fishing regulations.   Further, the Judge rightly pointed to the need for general deterrence given the difficulty of detecting this type of offending.

[13]     There was ample justification for rejecting home detention as an appropriate sentence.   Commerciality of the offending is a serious aggravating feature and of obvious relevance to the ultimate sentence.

Informant not asking for imprisonment

[14]     The appellant says that the Judge also erred in stating that the informant submitted a starting point of 12 months’ imprisonment was appropriate.   However the informant sentencing submissions say exactly that.  But in the end the issue is not whether the informant thought this was an appropriate sentence but whether or not this sentence was manifestly excessive or wrong in principle.

Disparity

[15]     There was a significant disparity in the sentences imposed on the appellant and his brother but there was a rational justification for this.  The appellant’s brother was charged with possession of paua taken in contravention of the Fisheries Act under s 232(1).   This offence carried a monetary penalty only.    It reflected the prosecutorial discretion as to their view that the appellant was the leader of this expedition and the brother simply a helper.  There was ample background evidence available to the prosecution to justify this approach.  The appellant’s brother has no previous convictions and was understandably therefore treated leniently by the prosecutorial authority.   In those circumstances there was, in my view, no unfair disparity.

[16]     For the reasons given, therefore, the appeal against sentence is dismissed.

Ronald Young J

Solicitors:

Bamford Law, Nelson

O’Donoghue Webber, Crown Solicitors, Nelson