Tapsell v The Queen - [2014] NZCA 122

IN THE COURT OF APPEAL OF NEW ZEALAND

CA703/2013
[2014] NZCA 122

BETWEEN	RYAN KARL TAPSELL Appellant
AND	THE QUEEN Respondent

Hearing:	17 February 2014
Court:	Ellen France, MacKenzie and Mallon JJ
Counsel:	M J Winders for Appellant S K Barr and L Matehaere for Respondent
Judgment:	3 April 2014 at 11.30am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe appeal is allowed.
CThe sentence of four years imprisonment is quashed and a sentence of three years two months imprisonment is substituted.
DThe minimum period of imprisonment is quashed.

____________________________________________________________________

REASONS OF THE COURT

(Given by MacKenzie J)

Background

The appellant appeals against a sentence of four years imprisonment, with a minimum period of imprisonment of two years, imposed by Judge Crosbie in the District Court at Dunedin in September 2013 on 15 counts under the Fisheries Act 1996 (the Act).[1]
[1]R v Tapsell DC Dunedin CRI-2011-012-4652, 13 September 2013.
The appellant and two co-offenders were charged with offences involving the unlawful taking of paua, and related offences. The charges followed an investigation by the Ministry of Fisheries conducted between July 2010 and March 2011 into the taking of paua from a closed commercial area and its onsale to local fish and chip shops. The two co-offenders (T and H) entered guilty pleas and were sentenced in May 2012.[2] The appellant went to trial on 31 counts before Judge Crosbie and a jury on 28 February 2013. The trial was set down for two to three weeks. On the third day, the appellant pleaded guilty to an amended indictment containing 15 counts. Before sentencing, the appellant took issue with two of those counts and filed an application to withdraw his guilty pleas. There were further changes to some counts and an amended summary of facts was settled between the Crown and the appellant, before sentencing could take place.
[2]Ministry of Fisheries v Houston DC Dunedin CRI-2012-012-135, 1 May 2012.
The counts on which the appellant was sentenced were six counts of making a false statement with the intention of obtaining a benefit under the Act,[3] two counts of obtaining a benefit by selling paua contrary to the Act,[4] as well as four counts of taking paua, two of selling paua and one of illegally possessing paua, all with the intention of obtaining a benefit contrary to the Act.[5] All counts carried a maximum penalty of five years imprisonment or a fine not exceeding $250,000, or both.
[3]Section 231(1).
[4]Section 233(1).
[5]Section 233(2).
The appeal was filed several days out of time. A notice was filed in time, but in the incorrect form. A correct notice was then filed. The application for extension of time is not opposed, and is granted.

The offending

The appellant obtained customary authorisations from the local Tangata Tiaki, allowing the holder to take more than the daily limit of paua for a specified event on a single date. The appellant arranged for these…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tapsell v The Queen

Details

AGLC: Tapsell v The Queen [2014] NZCA 122
Case: [2014] NZCA 122
Decision Date: 3 April 2014 at 11.30am

CaseChat Overview and Summary

The appellant, Ryan Karl Tapsell, appealed against his sentence of four years imprisonment, with a two-year minimum period, imposed by Judge Crosbie in the District Court at Dunedin in September 2013. The appeal was allowed, and the sentence was reduced to three years and two months imprisonment, with the minimum period of imprisonment quashed. The appellant was convicted on 15 counts under the Fisheries Act 1996, involving the unlawful taking of paua and related offences. The court found that the starting point for the offending was three years, not three and a half years as determined by the sentencing Judge. The court also found that the uplift to reflect the additional criminality involved in the s 231 offending should be six months, not one year as determined by the sentencing Judge. The court found that the sentence imposed was manifestly excessive and that the imposition of a minimum term of imprisonment was not justified.

The court considered the appellant's role as the principal offender and the additional criminality involved in the s 231 offending, which justified a difference in the starting points. The court found that the Judge's assessment of the appellant's role and the additional criminality was open to him on the material before the court. The court also found that the uplift of six months for previous offending was greater than required for personal deterrence and that an uplift of three months would have sufficed for that purpose. The court considered that a discount should have been given for the late guilty plea, but the events following entry of the plea justified a reduction to a small discount. The court found that the Judge did not err in declining to make allowance for the forfeiture of the appellant's property, as the value of the property was not large in relation to the scale of the offending.

Orders