Wei v Ministry of Fisheries HC Greymouth CRI-2011-418-003

[2011] NZHC 1613

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CRI-2011-418-003

BETWEEN  MIN JU WEI AND XIAOIJA LIANG Appellants

ANDMINISTRY OF FISHERIES Respondent

Hearing:         22 August 2011

Counsel:         A G Whitcombe for Appellants

M Zintl for Respondent

Judgment:      29 August 2011

JUDGMENT OF MILLER J

[1]      This  is  an  appeal  against  sentence.    The  appellants  were  prosecuted  for offences  which  stemmed  from  Operation  Deep  Six,  an  undercover  operation  in which an undercover fisheries officer travelled around takeaway bars and attempted to sell quota species without appropriate paperwork and in circumstances where it was obvious that the fish was being sold on the black market.  Fish was sold to the appellants, who run a small restaurant in Greymouth, on two occasions.   Their explanation was that the fish was for their own consumption.

[2]      Both appellants were involved in the two incidents, and each was charged with two offences per incident:  being in possession of shellfish in excess of three times the daily limit, and being a dealer in fish failing to keep a record of the fish purchased.  These charges were laid respectively under regs 19(1) and (3) and 29(2) of the Fisheries (Amateur Fisheries) Regulations 1986 and regs 6(1)(a) and 6(2) and

28(1)(a) and 28(2) of the Fisheries (Record keeping) Regulations 1990.   The maximum penalty for the former offences is a fine not exceeding $20,000, and for

the latter a fine not exceeding $100,000.

MIN JU WEI AND XIAOIJA LIANG V MINISTRY OF FISHERIES HC GRY CRI-2011-418-003 29 August

2011

[3]      At sentencing the Judge had before him a summary of facts which stated, incorrectly, that the maximum penalty for both offences was a fine of $100,000. The summary  of  facts  emphasised  that  accurate  reporting  and  recording  is  the cornerstone of the fisheries quota management system and outlined the background to Operation Deep Six.  It explained that on the first occasion 12 kilograms of paua and 18 kilograms of blue cod were sold for $300, and on the second occasion, 20 kilograms of paua and five rock lobster were sold for $350.  It was not alleged that the fish had been bought for a commercial purpose, and before me Mr Zintl emphasised that the Ministry did not rely on a commercial element in selecting the offences charged or at sentencing.

[4]      The  Judge  noted  that  the  Act  provides  a  presumption  that  people  in commercial premises buy fish for the purposes of their commercial operations, but he also acknowledged that it was said that this was for their own consumption.  He appears to have accepted that, because he also made a point of recording that when the undercover officer returned on a third occasion, some time later, the appellants still had some of the fish left and declined to purchase any more.

[5]      It had been submitted for the appellants that the weekly turnover of their business was $1,000.  The Judge accepted that they are not wealthy people and they were entitled to a generous discount for pleading guilty at the first opportunity.  But it was necessary to bear in mind the integrity of the legislation.  Each was convicted and on the possession charges fined $1,200 and court costs.  In respect of the charges of failing to keep records each was fined $300 and court costs.  The result was that for each of the two incidents the appellants between them were fined $2,400 for possessing the fish and $600 for failing to keep appropriate records;  a total for the two incidents (and eight charges) of $6,000.

[6]      On appeal, Mr Whitcombe raised several points.  He argued first that due to oversight on his own part it was not drawn to the Judge’s attention that a partial defence was available under s 232(4) of the Fisheries Act 1996 where the appellants could  show  they  had  no  commercial  purpose.    Second,  the  Judge  apparently sentenced them on the assumption that there was a maximum fine of $250,000 available.  And third, the fines were clearly excessive.

[7]      I reject the first two of these points.  It is true that s 232(4) of the Fisheries Act reduces the penalties for certain offences from $250,000 to $100,000 provided the defence establishes that the fish were obtained other than for the purpose of sale, but the offences concerned are those under ss (1) or (2) of the same section.  These charges were laid under Regulations which contain their own offence provisions.  It is immaterial that the same behaviour might also have been an offence under s 232, particularly where the informant did not allege a commercial purpose in any event. Nor do I accept Mr Whitcombe’s submission that the Judge proceeded on the assumption that the maximum penalty was $250,000.  There is no evidence of that in the record.  The most that counsel could say was that he was referred to a case, in which  that  penalty applied because the offences  were  apparently brought  under

s 232.[1]

[1] Ministry of Fisheries v Mak DC Wanganui CRI-2010-083-663, 19 May 2010.

[8]      However, Mr Zintl acknowledged that the Judge had been told, in error, that the maximum fine was $100,000 for the possession charges and it is reasonable to assume that the Judge relied on what he had been told.  I think the Judge did err, in reliance upon the informant, and I consider that having regard to the way in which the sentence was structured, with the possession charges attracting the larger fine by far, the error was material.  It is appropriate to revisit the sentence on account of it.

[9]      Mr Zintl argued that, even so, the sentences are not manifestly excessive.  I do not accept that submission.  It is true that the quantity was substantial, but it is necessary to recognise the absence of any commercial purpose, the fact that both appellants were fined for what was in effect the same offence, the early guilty pleas, and  their  modest  means.    I observe  that  counsel  helpfully  supplied  me  with  a schedule kept by the Ministry of fines imposed for this and comparable offences.  It suggests that the fines in this case were substantial.  I record that I do not attach any weight to Mr Whitcombe’s submission that the appellants feel hard done by because there was,  they assert,  an  element  of  entrapment.    As  dealers  in  fish,  they are expected to observe the rules.

[10]     Accordingly, the appeal is allowed in part.   The fines on the charges of possession are set aside.  In substitution the appellants are each fined $400 on each

charge, meaning a total of $800 per incident.    The fines for the record keeping charges are undisturbed, as is the order that they pay court costs on all charges.

Miller J

Solicitors:

Whitcombe Guinness & Kitchingham, Greymouth for Appellants

Crown Solicitor’s Office, Christchurch for Respondent