W v Police HC Rotorua CRI-2010-463-43

[2010] NZHC 2259

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2010-463-43

W

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         14 December 2010

Appearances: Mr P Clarke for Appellant

Mr F Pilditch for Respondent

Judgment:      14 December 2010

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

Solicitors/Counsel: Crown Solicitor, Rotorua Malcolm Mounsey Clarke, Taupo

W V NEW ZEALAND POLICE HC ROT CRI-2010-463-43 14 December 2010

[1]      Mr W   pleaded guilty in the District Court to a charge of using a net to take trout congregated for spawning in contravention of s 26ZJ(1)(d) of the Conservation Act 1987.  The maximum penalty for that offence is 12 months imprisonment or a

$10,000 fine.

[2]      Judge McGuire sentenced Mr W   to 135 hours community work, and gave him a final warning that he was likely to be sent to prison in the event that he offended again in a similar way in the future.  He now appeals to this Court on the basis that the sentence that the Judge imposed was wrong in principle and was manifestly excessive.

The facts

[3]      The facts giving rise to the charge are not in dispute.   Mr W   and four associates went to the Waimarino River on 6 September 2009.   The Waimarino River is closed to all forms of fishing between 1 June and 30 November each year to allow trout to spawn in an undisturbed state.

[4]      Mr W   and his associates went to an area where trout were congregating for spawning, and began dragging a nylon gill net through the water.  They also threw rocks into the water to drive the fish towards the net.  The men then dragged the net to a gravel beach on the side of the river, where they landed and killed the trout.  In all, they killed a total of 22 trout and then left the scene carrying the trout in their backpacks.

[5]      A  short  time later,  a Department  of  Conservation  ranger  approached  the group.  They co-operated with the ranger and told him what they had been doing.  As a result, all five men in the group were charged with the same offence.  Mr W   told the ranger that he and the others had been taking turns on the net, and that he knew that it was an offence to collect trout in this manner.  He said that he was gutting fish to take home for his family.

[6]      The Department of Conservation clearly saw these prosecutions as amounting to a test case.  When the Judge sentenced Mr W   and two of his associates he also

sentenced four other persons who had been charged with the same offence, again at the Waimarino River, as a result of an incident that occurred on 26 September 2009. They, too, had captured a total of 27 trout using a gill net.

The Judge’s decision

[7]      The Judge accepted the Conservation Department’s submission that this was a serious offence, and that it was appropriate to increase the penalties to be imposed from those previously imposed for similar offending.  He said that it was no excuse for offenders to say that they were taking trout for food, because a protocol had been put in place between the Department and the Tuwharetoa Trust Board that provided a system under which trout could be taken for that purpose.  The Judge said that a message needed to be sent that the tariff was being uplifted, and that the time was fast approaching when terms of imprisonment would be imposed.  He expressed that view because he anticipated that the Court might need to impose sentences of imprisonment in the event that no other form of sanction operated as a deterrent.

[8]      The Judge took a starting point of 200 hours community work.  He applied the decision of the Court of Appeal in R v Hessell [2009] NZCA 450 to reduce the sentences by one-third to reflect early guilty pleas. This led to end sentences of 135 hours community work being imposed on each of the defendants. Each of them was also subject to a final warning. Finally, the Judge made an order for the forfeiture of the equipment that the defendants had been using during the two incidents.

Grounds of appeal

[9]      On appeal, counsel for Mr W   submits that the Judge was wrong to view community work as an appropriate form of sentence for offending of this type.  He submits that the Judge was bound to have regard to the hierarchy of sentences prescribed by the Sentencing Act 2002.  Applying that hierarchy, the Judge should first have determined whether it was appropriate to defer sentencing and to order Mr W   to come up for sentence within a specified time if required to do so. Alternatively, he should have considered the imposition of a fine.   Only if those

sentences were insufficient should the Judge have gone on to impose a sentence of community work.

[10]     In  the  alternative,  counsel  submits  that  the  starting  point  that  the  Judge adopted was too high, and that a lower number of hours should have been selected as a starting.   He also submits that the Judge did not reduce the starting point to adequately recognise a number of mitigating factors that Mr W   was entitled to rely upon.  Finally, counsel for Mr W   contends that the Judge should not have issued a final warning on a global basis.   In particular, he should not have issued a final warning to Mr W   when he was a first offender and had never received a warning for this type of behavior in the past.

Was community work an appropriate sentence?

[11]     I  deal  first  with  the  issue  of  whether  or  not  community  work  was  an appropriate sentence.

[12]     It is not possible to set a tariff, or prescribe any guideline, in cases of this type.  Each case will depend upon its own facts, and the Court will need to take into account all of the relevant facts before fixing on the appropriate form of sentence.

[13]     In the present case, there were several factors that operated to make the offending more serious.  Some of these are inherent in the charge itself, whilst others arise from the manner in which Mr W   and his associates embarked upon the conduct that led to their convictions.

[14]     The factors that are inherent in the charge are that trout were taken from a stream when that stream had been closed to allow trout to spawn undisturbed.  Next, there is the fact that a gill net was used.  This allowed Mr W   and his associates to take a larger number of fish than would have been the case had they resorted to more conventional means of fishing.

[15]     Moving  away  from  the  elements  of  the  offence,  this  offending  was committed by a group of five persons who had set about a pre-determined plan to

gather together the necessary equipment and proceed to an area where they knew fish would be gathered for spawning.  It could not be called opportunistic offending.

[16]     A significant number of fish were also taken.  The current limit for catching fish pursuant to a licence and in season is three trout per person.  Even allowing for five participants, this was over-fishing on a reasonably large scale.

[17]     Those factors are compounded by the fact that offending of this type is difficult to detect, because it usually occurs in remote locations and away from prying eyes.  This means that, when it is detected, the courts must ensure that it is dealt with in a firm and appropriate manner.

[18]     It also needs to be borne in mind that the overall loser in relation to this type of offending is the public at large.   The trapping of fish whilst they are spawning may have a significant consequential effect.   It can lead to the loss of a valuable natural resource that would otherwise be available to be enjoyed by all members of our community.

[19]     For these reasons the emphasis in offending of this type needs to adequately reflect issues of deterrence and denunciation.   Persons who are prepared to go to these lengths to catch fish from closed rivers need to know that, in the event that they are caught, significant penalties are likely to follow.

[20]     Taken together, the factors to which  I have referred persuade me that  a deferred sentence would not have been appropriate in the circumstances of this case. For the same reason, a fine could not realistically have been contemplated.   This means that a sentence of community work was the appropriate form of sentence for this particular offending.

[21]     I now turn to consider the length of the starting point that the Judge selected.

Was a starting point of 200 hours community work within the available range?

[22]     The maximum sentence of community work that the Court can impose is 400 hours.  A starting point of 200 hours community work therefore falls in the middle of the sentencing range.

[23]     Counsel for the Department has helpfully provided me with a table setting out sentences imposed  between 1992  and 2010 in the Rotorua / Taupo area in relation to this type of offending.   No discernible pattern is evident, and this is perhaps understandable because only the end sentence is shown in the table.  Other than the number of trout taken, I have no means of knowing whether or not offenders were offending for the first time or were repeat offenders.  The sentences range from conviction and discharge through to fines, community service and up to 400 hours community work.

[24]     Perhaps the authority that comes closest to the circumstances of the present case is Livingstone v Department of Conservation HC Rotorua CRI 2008-463-37,

15 May 2009, a matter that came to this Court on appeal in April 2009.  In that case the appellant had been charging with taking sports fish with a net in a place where sports fish had congregated for spawning, the same charge as in this case.   The appellant had defended the charge and had been convicted after a defended hearing. The Judge sentenced him to 100 hours community work and ordered him to pay reparation of $994.

[25]     The focus on the appeal was on the order requiring the appellant to pay reparation.  Without distinguishing between the order for reparation and the sentence of community work, the Judge noted that the sentence was one that was available to the Judge and could not be categorised as manifestly excessive.

[26]     Counsel for Mr W   submits that the facts in Livingstone were more serious, because the appellant had taken seven trout and he had also displayed a hostile and obstructive attitude towards the ranger when apprehended.  He submits that neither of those factors is present in this case.

[27]     I accept that submission so far as it goes, but there are other factors about the present  case  that  make  it  more  serious,  in  my view,  than  the  circumstances  in Livingstone.  First, there is the fact that the offending in the present case involved concerted action by a group of five persons.  Secondly, those persons took 22 fish rather than the seven fish taken by the appellant in Livingstone. Although the offending in the present case involved the removal of just over four trout per person, nevertheless it involved the overall removal from the river of 22 trout.  I view that as being more serious than an incident involving a single offender taking seven trout.  I am therefore satisfied that the starting point in the present case ought to have been higher than that in Livingstone.

[28]     It is difficult to compare this type of offending with other types of offending, because to do so is to engage in an exercise that has little meaning.  In the end, all that this Court can do is have regard to all of the factors to which I have referred in order to determine whether the starting point that the Judge took was too high.

[29]     Those factors persuade me that, although it may be towards the top of the range, a starting point of 200 hours was nevertheless within the range that was available to the Judge.  For this reason I do not accept that the starting point that the Judge selected was too high.

[30]     I now need to consider whether the Judge took into account all mitigating factors available to Mr W  .

Did the Judge take into account all available mitigating factors?

[31]     Mr  W    was  aged  18  years  at  the  date  of  the  offending,  as  were  his associates.  He has no previous convictions, and he has never received a warning in the past from a ranger or any other person holding authority under the Conservation Act 1987.

[32]     The issue is whether the one-third discount that the Judge gave for his guilty plea is sufficient to recognise not only the entry of the guilty plea but also the other factors that Mr W   was entitled to call in aid.

[33]     Allied to this is an argument for Mr W   that when the Judge sentenced the defendants he did so as a group, and that this has led to disparity in the sentences that he imposed.  Counsel for Mr W   points to the fact that one of the offenders in the other group of offenders that the Judge sentenced had three relevant previous convictions.   Notwithstanding this fact, he received the same discount and end sentence as Mr W  .  Counsel submits that this has led to a disparity in sentences that would lead a reasonable observer to question the sentencing process.

[34]     I take a different view.  It was certainly open to the Judge, and indeed it may have been preferable for him to have done so, to consider the circumstances of each of the defendants individually.  Had he done that, it is likely that the starting point in relation  to  the  offender  with  previous  relevant  convictions  would  have  been increased.   The issue, however, is whether the fact that he did not increase the sentence that he imposed on that offender operates to create disparity in relation to the sentences imposed on that offender and those imposed on the others.

[35]     I do not consider that that is the case.   I consider that the defendant with previous convictions was fortunate to escape with what must be considered as a lenient sentence.  That does not, however, mean that the sentences imposed on the remaining defendants was so disparate that they ought to be corrected on appeal.

[36]     Counsel for the respondent submits that Mr W   did not enter his guilty plea at the earliest opportunity.  He appeared for the first time on 10 March 2010.  The proceeding was then adjourned to 24 March 2010, when it was adjourned to 8 April

2010.  By this stage, a legal aid assignment had been completed and Mr W   entered a guilty plea on his third appearance.  Given the fact that Mr W   entered his guilty plea less than a month after the charge was first called, however, I consider that he must be treated as having done so at the earliest opportunity.  As a result, Mr W   was entitled to a one-third discount in terms of the sentencing regime that prevailed at that time.

[37]     The issue of Mr W  ’s youth and his lack of previous convictions is certainly a matter that the Judge would have been entitled to take into account in fixing the level of discount to be given to Mr W  .  Having said that, the maximum discount

that could have been available taking into account all relevant matters was, in my view,  around  40  per  cent.    This  means  that  a  further  reduction  of  15  hours community work might have been available to Mr W   if the Judge had thought that those factors should be given express recognition.

[38]     The test in this Court is whether the end sentence is manifestly excessive regardless of how the sentence is constructed.   Viewed overall, I consider that a discount of 33 per cent, or one-third,  is a discount that was appropriate in the circumstances of this case.   I do not consider that an end sentence of 135 hours community work can be said to be manifestly excessive even taking into account the fact that it may have been open to the Judge to impose a sentence of 120 hours community work instead.  I therefore decline to interfere with the sentence on that basis.

The final warning

[39]     I deal finally, and briefly, with the issue of the final warning.

[40]     It is clear from the Judge’s sentencing remarks that he was endeavouring to send a message to the wider community that this type of offending would no longer be tolerated by the courts, and that the courts would take a firm line with offenders who came before it in the future.  I suspect that he issued the final warning to Mr W   and his co-defendants having that objective in mind.

[41]     A final warning is not a form of sentence that is to be found within the Sentencing Act 2002.   It is not, in fact, a form of sentence at all.   Rather, it is a message to an offender that, if he or she continues to offend in a particular way, then he or she will run the risk of receiving a sentence of imprisonment in the future.

[42]     No sentencing Judge can be bound by the fact that a final warning has been given in the past.   The sentence to be imposed in any given case must reflect the circumstances of the offending as well as the offender.  In the event that Mr W   was to offend again in a similar way in the future, the sentencing Judge would not be bound by the final warning to impose a sentence of imprisonment.  He or she would

have regard to all the circumstances of the case, and then would consider whether or not an increased sentence of community work, or sentences of community detention or home detention were appropriate.  Only if those sentences were not appropriate would the Judge turn to consider the prospect of imprisonment.

[43]     I do not consider that Mr W   has been realistically disadvantaged by the fact that the Judge gave him a final warning.  I do not propose to interfere with, or comment further upon, that aspect of the Judge’s sentencing remarks.

Result

[44]     For these reasons the appeal against sentence is dismissed.

Lang J