Tapsell v R CA

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeMacKenzie J
Judgment Date03 Apr 2014
Neutral Citation[2014] NZCA 122
Docket NumberCA703/2013

[2014] NZCA 122

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Ellen France, MacKenzie and Mallon JJ

CA703/2013

BETWEEN
Ryan Karl Tapsell
Appellant
and
The Queen
Respondent
Counsel:

M J Winders for Appellant

S K Barr and L Matehaere for Respondent

Appeal against sentence of four years imprisonment with a minimum period of imprisonment (MPI) of two years, on 15 counts under the Fisheries Act 1996 (FA) offences involving the unlawful taking of paua — appellant made false statements to the Tangata Tiaki to obtain customary authorisations, allowing the holder to take more than the daily limit of paua for a specified event on a single date — appellant identified as primary offender — starting point for appellant was three and a half years — starting point of 18 months adopted for co–offenders — appellant's property had been forfeited under s255D(2)(c) FA (Forfeiture of property used in the commission offences) — whether the sentence was manifestly excessive, including double counting and parity issues — whether there was a conflict between s10B Sentencing Act 2002 (take into account instrument forfeiture order) and s256(14) FA (Any forfeiture …shall be in addition to … any other penalty that may be imposed by the court or by this Act) — whether MPI should have been imposed.

The issues were: whether the sentence the MPI of two years (50 per cent) should not have been imposed and whether there was a conflict between s10B Sentencing Act 2002) (take into account instrument forfeiture order) and s256(14) FA (Any forfeiture …shall be in addition to … any other penalty that may be imposed by the court or by this Act).

Held: The quantity of paua involved was an important element in assessing the scale of the offending, but it was not the only aspect. This was a persistent course of offending over a period of about ten months. It was a commercial operation, although not a large-scale commercial operation. In fixing the starting point of three and a half years for all the offending, the Judge identified a two and a half year starting point as appropriate for the s233 FA offences (taking and selling the paua). In light of the authorities, that component of the starting point was within the available range.

The next issue was the extent of the uplift to reflect the offending under s231 FA (knowingly makes a false or misleading statement or omits any information prescribed or required by the Act). The appellant made false statements to the Tangata Tiaki to obtain the authorisations. An element of dishonesty or fraudulent intent was inherent in the nature of the offence. The appellant's dishonesty or fraud consisted in applying for customary authorisations to which he knew he was not entitled.

The element of dishonesty and fraud added to the criminality of the offending and had to be reflected by an uplift. The first factor relevant to assessing the uplift was the degree to which the offending contributed to the principal offending under s233 FA. The customary authorisations did not facilitate the physical taking of the paua. The proper inference was that the appellant would have illegally taken the paua whether or not he had the authorisations. There was no evidence that he used the documents to prevent apprehension. The customary authorisation offending might therefore be viewed as adding little to the criminality involved.

The second factor was the effect of the offending on the overall scheme of fisheries control imposed by the Act. The special relationship between tangata whenua and places of importance for customary food gathering was expressly recognised in the FA. Any abuse of the customary authorisation process was to be viewed as a potential threat to the proper administration of the fisheries regime. The appellant's fraud in obtaining special privileges to which he was not entitled, perpetrated against the Tangata Tiaki by whom the authorisations were issued, added significantly to the culpability of the commercial taking of paua offending.

The additional criminality involved in obtaining the customary authorisations, and in the abuse of the customary authorisation process required an uplift of six months. The uplift of one year applied by the Judge was too high having regard to the totality principle.

In terms of parity with the sentences imposed on T and H, there were two principal factors which justified a difference in the starting points. First, the appellant's role as the principal offender had to be reflected in the sentence imposed. Second, the additional criminality involved in the s231 FA offending had also to be taken into account. The assessment of the offenders’ relative culpability was open to the Judge on the material, and was sufficient to justify a one year difference in the starting point for the s233 offending. There was no double-counting.

The appropriate total starting point for the totality of the offending was three years.

The uplift of six months for previous offending included convictions in 1995, 2000 and 2009 for offences under the FA, which were met by fines and community work. An uplift of six months, or nearly 17 per cent of the starting point of three years, was greater than required for personal deterrence. Three months would have sufficed for that purpose.

The relevant personal mitigating factors were the late guilty plea and the forfeiture of property. The guilty plea was very late, and any discount under Hessell v R would have been small. The events following entry of the plea justified a reduction to that small discount. An allowance of one month was appropriate.

Section 256(14) FA provided that any forfeiture under s255D FA was in addition to, and not in substitution for, any other penalty that might be imposed by the Court. Section 10B SA provided that in sentencing an offender convicted of a qualifying instrument forfeiture offence the Court had to take into account any forfeiture of property used in the commission of the offence.

There was some difference of view in the authorities as to the way in which the principle of sentencing expressed in s10B SA was to be reconciled with s256(14) FA. The appropriate reconciliation of the two potentially conflicting provisions was that the Court had to take into account the forfeiture as required by s10B(1)(b) SA. In deciding the weight to be given to that matter, the Court had to take into account not only the matters referred to in s10B(2) SA (… the value..[and] the nature and extent of the offender's interest in.. [forfeited] property) but also the direction in s256(14) FA that the forfeiture was intended to operate in addition to any penalty which the Court might impose. The value of the property forfeited would carry little weight in the sentencing exercise, unless there were particular consequences of the forfeiture for the offender which would make the sentence otherwise unjust in the particular circumstances of that offender.

The Judge did not err in declining to make allowance for the forfeiture. The value of the property was not large in relation to the scale of the offending. There was no material before the sentencing Judge to establish any particular hardship arising from the forfeiture.

The appropriate end sentence was three years two months, made up of a total starting point of three years, an uplift of three months for the previous offending and a discount of one month for the guilty plea. That was ten months less than the four years imposed by the Judge. The sentence imposed was therefore manifestly excessive.

The importance of the principles of deterrence and denunciation for offending under the FA, referred to in Tonga v R, did not ordinarily mean that a MPI was required. While MPIs had been imposed in cases of fraud offending, the fraud involved was not a significant element in facilitating the offending. The fraud against the fisheries regime which we have described was different in kind from most fraud offending, in that it did not involve an actual or potential loss suffered by an identifiable victim. The fraud against the regime was serious, but the purposes of denunciation and deterrence were adequately met by the uplift of one year. The additional penalty inherent in the imposition of a MPI was not justified.

Appeal allowed. Sentence of three years two months imprisonment substituted. MPI quashed.

JUDGMENT OF THE COURT
  • A The application for an extension of time to appeal is granted.

  • B The appeal is allowed.

  • C The sentence of four years imprisonment is quashed and a sentence of three years two months imprisonment is substituted.

  • D The minimum period of imprisonment is quashed.

REASONS OF THE COURT

(Given by MacKenzie J)

Background
1

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

2

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.

3

The counts on which the appellant was sentenced were six counts of...

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