Wells v Ministry of Primary Industries
[2017] NZHC 1860
•7 August 2017
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CRI 2017-470-18
CRI 2017-470-19 [2017] NZHC 1860
BETWEEN LEE RONA WELLS AND ANTHONY
KARAURIA JACKSON Appellants
AND
MINISTRY OF PRIMARY INDUSTRIES Respondent
Hearing: 3 August 2017 Counsel:
Ms L R Wells and Mr A K Jackson, in person, Appellants
N T C Batts for RespondentJudgment:
7 August 2017
JUDGMENT OF HEATH J
This judgment was delivered by me on 7 August 2017 at 2.15pm pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Hollister-Jones Lellman, Tauranga
Copy to:
Ms Wells, AppellantMr Jackson, Appellant
WELLS AND JACKSON v MINISTRY OF PRIMARY INDUSTRIES [2017] NZHC 1860 [7 August 2017]
The appeals
[1] Mr Jackson and Ms Wells each appeal against sentences imposed in the District Court at Tauranga, following their pleas of guilty to charges brought under the Fisheries Act 1996 (the Act).1 Although it is not entirely clear whether Mr Jackson intended his appeal to challenge his conviction, I treat it as such.
[2] Ms Wells was sentenced by Judge Ingram, on 21 April 2017. She had pleaded guilty to selling paua and kina taken in contravention of the Act.2 The Judge sentenced Ms Wells to 200 hours’ community work.3 Although Ms Wells was named in the charging document that alleged offences committed by Mr Jackson (“Together with Ms Wells”) she was not charged with being a party to Mr Jackson’s discrete offending.
[3] Mr Jackson was a co-defendant in the prosecution in which Ms Wells was involved. He pleaded guilty to a single charge of obtaining a benefit by selling fish, between 1 October 2014 and 24 November 2015, in circumstances where he had no licence to do so.4 Mr Jackson’s sentencing had been adjourned so that he could identify an address at which any sentence of home detention could be served. He was sentenced on 26 May 2017, to a period of 12 months’ home detention and 300 hours’ community work.5
[4] As part of Mr Jackson’s sentencing, Judge Ingram directed forfeiture of a red Isuzu Bighorn motor vehicle (registration number BRY680) and all dive equipment listed in the summary of facts.6
[5] While I am satisfied that there is no basis for Mr Jackson to appeal against conviction, I shall consider discretely a point of tikanga that he has raised. There is
no basis to challenge conviction because Mr Jackson pleaded guilty in the District
1 The offending occurred between 1 October 2014 and 24 November 2015. An amendment to the charging document expressly removed any reference to quantities that Ms Wells was responsible for taking.
2 Fisheries Act 1996, s 232.
3 Ministry of Primary Industries v Noble [2017] NZDC 8354, at para [31], set out at para [17]
below.
4 Fisheries Act 1996, ss 233(1) and 252(1).
5 Ministry of Primary Industries v Jackson [2017] NZDC 11268, at paras [13] and [14].
6 Ibid, at para [16].
Court, and there are no considerations of the type discussed by the Court of Appeal in Le Page v R7 to allow such an appeal to be brought.
Background
[6] At material times, Mr Jackson and Ms Wells were a couple residing on Motiti
Island, near Tauranga. In Motiti Avocados Ltd v The Minister of Local Government,8
Andrews J described the Island in these terms:9
[5] Motiti Island is located some 12 kilometres to the north-east of the Bay of Plenty coast, between Mt Maunganui and Maketu. It has been occupied and farmed for hundreds of years by Maori of Te Patuwai (a hapu of Ngati Awa of Whakatane) and the Whanau O Tauwhao (a hapu of Ngai Te Rangi of Tauranga and Mt Maunganui).
…
[7] The Minister of Local Government is the territorial authority for
Motiti, pursuant to s 22 of the Local Government Act 2002.
[8] As the Environment Court said, “The island has no real infrastructure and has avoided interest from the mainland being essentially remote and self-managing. It has no local body and no government presence.” An application for subdivision consent in 1995 raised the question of a regulatory framework for the island, and the Environment Court subsequently recommended to the Minister that an environmental management plan be prepared for Motiti. …
(Footnotes omitted)
[7] In December 2014, the Ministry for Primary Industries (the Ministry) received information that Mr Jackson had been in Rotorua the previous month approaching businesses to ascertain if they were minded to buy minced paua. Between October 2014 and November 2015, compliance staff from the Ministry monitored Mr Jackson, Ms Wells and other associates.10
[8] The Ministry obtained a warrant to access telephone records of Ms Wells. A
number of text messages were discovered. They involved a number of people whom
7 Le Page v R [2005] 2 NZLR 845 (CA); leave to appeal to the Supreme Court refused: [2005] 3
NZLR 145 (SC).
8 Motiti Avocados Ltd v The Minister of Local Government [2013] NZHC 1268.
9 The decision of the Environment Court to which the Judge refers is G & S Hoete v Minister of
Local Government [2012] NZEnvC 282 at para [2].
10 Three other parties were found guilty of offending arising out of the operation: Mr Noble, Ms Noble and D.Lish Ltd. They were sentenced together with Ms Wells on 21 April 2017. They have not appealed.
Ms Wells had contacted in relation to the offer and sale of paua and kina. Those records identified Mr Jackson and other associates as those who would dive for the seafood.
[9] The paua was minced on Motiti Island and packaged into .5 and one kilogram bags. Kina was bottled into various size containers ranging from 350mls to two litres. Ms Wells would advise associates when paua and kina were available for purchase. Primarily, Mr Jackson would then arrange for the seafood to be transported from Motiti Island, on local flights.
[10] The Ministry identified some 250kgs of minced paua, having a black market value of $18,890, and approximately 43 litres of kina, valued at $3472, as having been offered for sale or sold during this period. The current commercial wholesale price for shucked paua is approximately $130 per kilogram. The value of the paua removed, if sold on a legitimate market was about $32,500 to its purchasers.
[11] When interviewed, Ms Wells acknowledged that the telephone number from which the text messages had been taken belonged to her, but said that other family members often used it. She added that she did not see the need to know what rules related to the regulation of amateur fishing. In referring to people who live on Motiti Island as “unique” (because they are not part of the mainland) Ms Wells added that she “suppose[d] you could say we are our own nation”. Ms Wells placed reliance on local tikanga which, she acknowledged, did not always align with regulatory requirements.
[12] Mr Jackson represents what he calls the “commercial arm” of Nga Uri a Te Hapu Kapoerihina Maori (the Incorporation). The Incorporation was established under Te Ture Whenua Maori Act 1993. He has provided information that confirms his whakapapa to the hapu from whom those involved with the Incorporation descend. Mr Jackson contends that the Incorporation has full plenary power to deal with customary fishing rights, and that he should not be penalised or sanctioned for the acts he undertook.
[13] Forfeiture of a number of items was sought,11 including an Isuzu Bighorn motor vehicle. No specific attention was given to the question whether that particular vehicle was used in offending. The Ministry contends that Mr Jackson and Ms Wells conceded that the vehicle should be forfeited before sentencing in the District Court took place.12
Sentencing in the District Court
[14] Judge Ingram expressed some strong views about the gravity of the offending. When sentencing Ms Wells and others, he explained that Mr Jackson had accepted responsibility for organising the enterprise, into which others had been drawn.13 The Judge accepted that Ms Wells and the others were guilty of opportunistic offending, as opposed to engaging in a pre-meditated and well organised illegal commercial scheme.14
[15] The Judge took some time discussing aspects of customary fishing rights, to which all of the defendants had referred. He did so in the context of the quantities of paua and kina taken, and obvious breaches of the quota management system. He referred specifically to letters from three tribal authorities, all of which condemned
the offending.15
[16] Some of the sentencing Judge’s comments are relevant to my consideration of the arguments based on custom that have been advanced by Mr Jackson. The Judge said:
[10] … I do have a letter from the Te Patuwai Tribal Committee castigating all of you for being involved in this. They obviously had a very extensive interest in the conservation of seafood resources in the district and quite rightly they are absolutely incensed that this kind of thing has gone on.
[11] I have another one from Tauranga Moana Iwi Customary Fisheries
Trust. I can certainly quote a short piece, in conclusion of the letter is:
The offenders in this case have completely disregarded the impact this activity has had on others and completely disregarded the rules
11 Fisheries Act 1996, s 255D(2)(c).
12 See para [38] below.
13 Ministry of Primary Industries v Noble [2017] NZDC 8354, at para [5].
14 Ibid, at para [8].
15 Ibid, at paras [10]–[12].
of fishing and the penalties for overfishing. They have shown no regard for the Tikanga of customary management and traditional practice handed down by our tūpuna. Retribution for this kind of behaviour in the past was swift and severe. In light of this we hope that the ruling is in favour of maximum penalties for the persons who led this disgraceful operation.
[12] The third letter I have is from the trustees of the Motiti Reservation on Motiti Island. It is to like effect. They say not only is the offence against the law but, “Also a blatant disrespect of our tūpuna who relied upon us, their descendents, to protect our kai moana for future descendents”.
[13] This is not just a matter of the law saying that you should not be taking more than the fishery can sustain it is a matter of custom, Tikanga Māori and it has been breached and severely breached by you people. It seems to me that the opinions expressed in those letters, the remarks addressed to me in an endeavour to persuade me to impose the maximum penalty, are well and truly justified in the circumstances as those people know them to be.
[17] Having regard to relevant principles and purposes of sentencing, the Judge took the view that the offending was serious, though the role played by Ms Wells was “limited”. In sentencing Ms Wells to serve 200 hours community work, Judge Ingram said:
[31] I turn to you, Ms Wells. In your particular case the part that you played in this is limited. You were involved in communications but little more than that on the material available to me. That effectively makes you a party to Mr Jackson’s primary contribution as the principal offender. I have given careful consideration to what to do with you. A sentence of home detention is certainly possible. If I sentence you to home detention there will be other downstream effects which seem to me to be completely undesirable. Having regard to your relatively insignificant role in the overall scheme of things, it seems to me a substantial sentence of community work will adequately meet the need for punishment and deterrence. …
[18] The Judge made no reference to the motor vehicle that she says was wrongly forfeited, when sentencing Ms Wells. That was considered in the context of Mr Jackson’s sentencing.
[19] In sentencing Mr Jackson, Judge Ingram identified the nature and scale of the offending. He said:16
[3] As you well know there is a quota management system which is in place which regulates the taking of fish. You and your partner decided that you would not be bound by that aspect of the law. You decided that because
16 Ministry of Primary Industries v Jackson [2017] NZDC 11268.
you reside on Motiti Island you are entitled to take as much paua and kina as you chose. You sold this to people who were not authorised to receive that and I have already dealt with those people at an earlier sentencing.
[4] The scale of your offending is to be remarked upon. The quantity of paua was very substantial. Scientific analysis was undertaken and the amounts that were located as having been taken by you and sold onto the other people amounted to some 32 percent of the allowable take on the whole fisheries area.
[20] The Judge, in dealing with the purposes of sentencing, referred to the letters from Maori organisations on which he had commented in sentencing Ms Wells.17 He took the view that an end sentence of two years imprisonment would have been justified, but commuted that to home detention for one year.18
Grounds of appeal
[21] Mr Jackson, despite having accepted the Court’s jurisdiction by entering a plea of guilty to the charge of obtaining a benefit by selling fish in circumstances where he had no licence to do so, has advanced claims based on customary fishing rights to challenge the sentence imposed upon him. No other grounds are put forward to set aside the sentence.
[22] Ms Wells does not expressly raise questions of customary rights. She is concerned about the forfeiture of her motor vehicle. The forfeiture order is the only part of the sentence that she seeks to overturn.
Analysis
(a) Mr Jackson’s appeal
[23] Mr Jackson made it clear, at the start of the hearing, that he was not challenging the jurisdiction of the District Court on “Sovereignty” grounds. Rather, I take Mr Jackson as seeking to mitigate his offending by contending that his group
was doing no more than exercising customary rights that the Act should not override.
17 See para [16] above.
18 Ministry of Primary Industries v Jackson [2017] NZDC 11268, at paras [13] and [14].
[24] While customary fishing rights have been acknowledged for some time under New Zealand law, their relevance in the context of prosecutions under the fisheries legislation has changed over time. An example is Te Weehi v Regional Fisheries Officer.19 In that case, s 88(2) of the Fisheries Act 1983 was in issue. Williamson J took the view that it created an exemption in favour of a person charged with carrying out activities which were intended to be completely prohibited by the Act or its Regulations if that person were exercising a customary fishing right.20 In that case, the Judge found that Mr Te Weehi was exercising a relevant fishing right and allowed an appeal against conviction.
[25] However, s 88(2) of the 1983 Act is no longer on the statute book. It was repealed by s 314(1)(y) of the Act. In that situation, the question whether the customary right (assuming one exists) can override the provisions of the Act falls to be determined in the same way as a similar question about the relevance of tikanga
to certain aspects of the Crimes Act 1961 was analysed in R v Mason.21
[26] In Mason, counsel for a person accused of murder and attempted murder argued that customary law should be applied as it had not been extinguished “with both the ‘consent’ of Maori and the use of ‘clear and plain’ statutory language”. I said:22
[35] … As to consent, once it is accepted that a society has authorised a properly constituted Parliament (a proposition not challenged in this case) to legislate, no further consent is required for a statute enacted by the Legislature to extinguish a pre-existing customary right. I accept that “clear and plain” statutory language is required to extinguish such a right but, in agreement with Elias CJ and Tipping J in Ngati Apa, I consider that may be done either “by express words, or at least by necessary implication”.
[36] On this point, R v Iti, is instructive. While the Court of Appeal accepted that a statute could extinguish a customary right, it drew a distinction between the prohibition of an asserted customary right to possess cannabis for supply (which it held Parliament had extinguished) and a provision in the Arms Act 1983 which prohibited discharge of a firearm “without reasonable cause”. The latter is a circumstance that, if present, means that no crime has been committed. As the Court said, interpretation of the term “reasonable” might be informed by customary rights; though the point was not fully argued in that case.
19 Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680 (HC).
20 Ibid, at 685.
21 R v Mason [2012] 1 NZLR 695 (HC).
22 Ibid, at paras [35]–[37].
[37] Iti does not support Ms Sykes’ argument that Mr Mason is entitled to be tried on the charges of murder and attempted murder under the customary system. Parliament, for the reasons given by Randerson J in Barrett, had the power to enact legislation conferring exclusive powers to try charges such as murder and attempted murder in the Courts that it created. Given the combined effect of ss 5 and 9 of the Crimes Act 1961, the customary system has been extinguished. It is not possible to regard the customary system as an existing parallel system. That is why I ruled against Mr Mason’s application.
(Footnotes omitted)
[27] There is no doubt that the Act governs the right to take fish in New Zealand. Any exceptions for customary rights are expressly contained in that statute.23
However, Mason makes it clear that aspects of tikanga can be taken into account on sentence.24
[28] Whatever may otherwise have been said about the impact on sentence of customary fishing rights, the comments made by other tangata whenua from Motiti Island demonstrate that Mr Jackson’s views are not universally shared. Having regard to the comments that Judge Ingram set out in his sentencing decision,25 there is no basis on which the sentence imposed on Mr Jackson could be reduced to reflect customary values. That being so, Mr Jackson’s appeal will be dismissed.
(b) The forfeiture point
[29] Ms Wells points out that forfeiture of the Isuzu Bighorn motor vehicle was not addressed at her sentencing. Currently, the vehicle is deregistered. It is parked close to a local airline’s hangar at Tauranga Airport. The airline is one of those that carries out flights to Motiti Island. Ms Wells denies that the vehicle was used in any of the offending.
[30] The power to forfeit is set out in s 255D of the Act. Relevantly, it provides:
255D Forfeiture for section 252(1) or (4) offence
(1) Subsection (2) applies on conviction for an offence referred to in section
252(1) or (4).
23 For example, s 186 of the Fisheries Act 1996 empowers the Governor General to make regulations recognising and providing for customary fishing rights.
24 R v Mason [2012] 1 NZLR 695 (HC), at paras [38]–[43].
25 Set out at para [16] above.
(2) The following are forfeit to the Crown unless the court for special reasons relating to the offence orders otherwise:
…
(c) any property used in the commission of the offence; and
….
[31] Forfeiture under s 255D only arises in relation to offences against s 252(1) and (4). Ms Wells was convicted of an offence against s 232 to which s 252(1) or (4) does not refer. So, the vehicle was not amenable to forfeiture on her conviction. Mr Jackson was convicted of an offence under s 233(1) of the Act, to which s 252(1)(c) applies. Thus, if used in offending undertaken by Mr Jackson, the vehicle could have been forfeited, even though Mr Jackson was not the registered owner.
[32] Section 255D(2) does not create an absolute right of forfeiture. The District Court may exempt property used in an offence from forfeiture if satisfied there were “special reasons relating to the offence” to make such an order.26
[33] In order to address this issue, Mr Batts, for the Ministry, provided to me formal statements taken from two pilots who work for airlines conducting flights to Motiti Island. Both know Mr Jackson and Ms Wells from their flying operations to the island.
[34] Mr Churchward works for Sunair Aviation. In his statement, he says that Mr Jackson was aware that luggage could not go on the plane without him assessing it. Generally, he assisted Mr Jackson and Ms Wells to carry luggage from the aeroplane to their vehicles. Mr Churchward was aware of two vehicles that were parked at the airport, the Isuzu Bighorn and a black Ford Mondeo, registration number EQZ919. In addition, their daughter had a Subaru motor vehicle.
[35] Mr Churchward concluded his statement by saying:
I only saw the Mondeo and the Isuzu being driven by [Ms Wells] and [Mr Jackson] and nobody else. The kids when they arrive will often ask for the keys to these vehicles but generally it’s to put luggage into, I have not seen them drive the vehicles.
26 Fisheries Act 1996, s 255D(2), set out at para [30] above.
For approximately the last 6 months prior to December 2015 I observed [Ms Wells and [Mr Jackson] only using the Ford Mondeo car which they loaded all the luggage into. Prior to that it was the Isuzu Bighorn.
I have had no problems in dealing with [Ms Wells or [Mr Jackson] in general they are good to deal with. [Mr Jackson] on occasions will try and put on more weight on the plane but that is about the only issue I have with him.
Generally I will tell him that I have the maximum weight and he has to choose what is left behind that can be brought over at another time on a flight.
[36] Although Mr Churchward says that he had not seen the Isuzu Bighorn being driven for a period of six months before December 2015, the offending on which Mr Jackson was convicted occurred in the period between 1 October 2014 and 24
November 2015.
[37] Mr Mossman works for Island Air, and has been conducting flights to and from Motiti Island since September 2014. Mr Jackson does not fly with Island Air, but other members of his family do. Mr Mossman’s statement records that over the two months before the date of his statement, 26 November 2015, he observed members of the Jackson family using heavy “black rubbish bags … with a soft meaty feel, which [he] thought was meat”. In connecting that luggage to Mr Jackson’s offending, Mr Mossman states:
On arrival at Tauranga Airport I unload the bags onto a trolley and on occasions the passengers assist me.
Over the period of time I have seen the [Jackson] family load their luggage/black bags into their four different vehicles being the silver Subaru, gun-grey Ford Mondeo, red Bighorn and the black Mitsubishi wagon.
[38] Mr Batts also provided me with email exchanges between a Ministry officer, and counsel acting for Ms Wells in the District Court. On 8 May 2017, her counsel was advised that forfeiture of the Isuzu Bighorn would be sought when Mr Jackson was sentenced. It was pointed out that two other vehicles, the Ford Mondeo and the Subaru, had been returned while negotiations took place about the charges to be pursued. In respect of the Isuzu Bighorn, the email to Ms Wells’ counsel concluded:
[Ms] Wells would need to make a formal application to the Court for relief against forfeiture which will be opposed.
[39] The fact that a forfeiture order was made as part of Mr Jackson’s sentencing
is consistent with the email chain produced.
[40] Section 256(3) of the Act enables any person claiming an interest in forfeited property to apply for relief from forfeiture. Section 256(3) and (4) provide:
256 Provisions relating to forfeit property
…
(3) Any person claiming an interest in any forfeit property may, within 35 working days after the date of the forfeiture or within such further period before the property is disposed of as the court may allow, apply to the court for relief from the effect of forfeiture on that interest.
(4) Every application under subsection (3) shall contain sufficient information to identify the interest and the property in which it is claimed, and shall include—
(a) a full description of the forfeit property in which the interest is claimed, including reference to any registration or serial number; and
(b) full details of the interest or interests claimed, including—
(i) whether the interest is legal or equitable; and
(ii) whether the interest is by way of security or otherwise; and
(iii) if the interest is by way of security, details of the security arrangement and any other property included in that arrangement; and
(iv) whether the interest is noted on any register maintained pursuant to statute; and
(v) any other interests in the property known to the applicant; and
…
(d) the applicant’s estimate of the value of the forfeit property
and of the value of the claimed interest.
….
[41] Although the period of 35 working days from the date of forfeiture has expired, Mr Batts made it clear that the Ministry would not oppose an extension of
time to apply. Section 256(3) confers jurisdiction on the District Court to extend time.
[42] While it is possible that Ms Wells may not have known about the communications between her former counsel and the Ministry official, it seems to me that it would be wrong in principle to set aside the forfeiture order, having regard to what was communicated to her counsel on 8 May 2017.27 Given the Ministry’s position in regard to a late application for relief against forfeiture, I consider Ms Wells should be left to exercise that remedy. That approach preserves her rights.
Any application should be made promptly to the District Court.
Result
[43] For those reasons, both appeals are dismissed.
[44] Ms Wells may make a separate application for relief against forfeiture in respect of the Isuzu Bighorn motor vehicle.28
P R Heath J
Delivered at 2.15pm on 7 August 2017
27 See para [38] above.
28 See paras [40]–[42] above.
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