Tanoai v Ministry for Primary Industries

[2017] NZHC 1372

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2017-485-20 [2017] NZHC 1372

BETWEEN

TIPASA TANOAI

Appellant

AND

MINISTRY FOR PRIMARY INDUSTRIES

Respondent

On the papers
Judgment:	21 June 2017

JUDGMENT OF MALLON J

Introduction

[1]      Mr Tanoai pleaded guilty to one charge of possessing excess paua1  and one charge of possessing undersize paua.2   He was sentenced in the District Court on 23

March 2017 to a total fine of $2,000 together with Court costs and a forfeiture order.3

He appeals against this sentence on the ground that it is manifestly excessive, when the Ministry of Primary Industries (MPI) had only sought a total fine of $1,000.4

Facts

[2]      On Friday 13 January 2017 Mr Tanoai gathered paua at Wainuiomata beach. He did not measure any of the paua that he gathered.  Fisheries officers approached him and inspected his bag which contained 34 paua.  The legal daily limit for paua is

1      Fisheries (Amateur Fishing) Regulations 2013, reg 12(3) and (4)(b) (maximum penalty $20,000 fine).

2      Reg 19(1) and (3) (maximum penalty $10,000 fine).

3      $1,500 on the excess paua charge and $500 on the undersize paua charge.

4      $750 on the excess paua charge and $250 on the undersize paua charge.

TANOAI v MINISTRY FOR PRIMARY INDUSTRIES [2017] NZHC 1372 [21 June 2017]

10 per person. The Fisheries Officers measured the paua.  Thirty three of these were under the legal size limit of 125 mm.

[3]      Mr Tanoai was interviewed and admitted taking all of the paua.  He said that he was unaware of the size limits and daily limits for paua.  Mr Tanoai is 36 years of age and is currently employed as a warehouse manager.  He has five children and a partner whom he supports.  He has no previous convictions.  He pleaded guilty at the first opportunity.

District Court decision

[4]      The District Court Judge fined Mr Tanoai $1,500 on the excess paua charge and $500 on the undersize paua charge and ordered him to pay $130 of Court costs and forfeit his equipment. The Judge gave no reasons for the fines he imposed.

Submissions

[5]      Mr Tanoai submits the sentence was manifestly excessive as it was double that  sought  by  MPI.    MPI  submits  the  Judge  was  not  required  to  accept  its submission as to the appropriate fine.  He was entitled to use his discretion having considered the circumstances of a case and impose the penalty he considered to be appropriate.  MPI submits the penalties were within the range imposed in previous cases.

My assessment

[6]      In my view the fines the Judge imposed were outside the range indicated by the cases the prosecutor had put before the Judge.  Based on those cases a total fine of around $800 to $1,500 was appropriate for this number of excess and undersize

paua for a first offender.5   The additional cases MPI has put forward confirm this is

5      Ministry of Fisheries v Solofa DC Porirua CRI-2012-091-221, 13 March 2012 (43 paua, 42 undersize, $1,500 fine); Ministry of Primary Industries v Tomasi DC Porirua CRI-2012-085-

1858 , 25 May 2012 (46 paua, 44 undersize, $1,000 fine); and Ministry of Primary Industries v Hana DC New Plymouth CRI-2016-043-798, 22 June 2016 (32 paua, 18 undersize, $800 fine). Compare with Ministry of Primary Industries v Mahoney DC Masterton CRI-2013-035-164, 21

March 2013 (69 paua, 37 undersize and 26 unmeasurable, $2,100 fine).

the appropriate range.6   The fines imposed by the Judge were more in line with cases involving a greater number of excess and undersize paua.  These cases confirm that the  fines  MPI  had  proposed  were  appropriate.    The  Judge  gave  no  reason  for imposing fines at a higher level and no basis for doing so is apparent in the material before me.  I therefore consider the Judge’s sentence was manifestly excessive.

Result

[7]      The appeal is allowed.  The fines imposed are quashed.  They are replaced with a fine of $750 on the excess paua charge and $250 on the undersize paua charge. The order for court costs and forfeiture remains in place.

Mallon J

6      Ministry of Primary Industries v Rophia DC Kaikoura CRI-2015-028-040, 26 June 2015 (34 paua, fined $1,400); Ministry of Primary Industries v Lavea DC Wellington  CRI-2015-085-

3593 (34 paua, all undersize, $1,500 fine); and Ministry for Primary Industries v Blake DC Wairoa CRI-2016-082-160, 21 July 2016 (33 paua, 31 undersize, $1,500 fine).  Compare with Ministry of Fisheries v Yang DC Christchurch CRI-2016-009-6223, 11 August 2016 (57 paua, 17 undersize, $2,000 fine); Ministry for Primary Industries v Thomson DC Hutt Valley CRI-2016-

096-3170, 29  September 2016 (64 paua, all  undersize, $1,750 fine);  Ministry for Primary Industries v Taueu DC Porirua CRI-2016-091-250, 8 March 2016 (78 paua, 77 undersize, $2,500 fine); and Ministry for Primary Industries v Raika DC Levin CRI-2016-035-592, 29 June 2016 (98 paua, 76 undersize, Raika was fined $2,000, the other two defendants were each sentenced to

300 hours community work).