Tapsell v R CA

JurisdictionNew Zealand
JudgeMacKenzie J
Judgment Date03 April 2014
Neutral Citation[2014] NZCA 122
Docket NumberCA703/2013
CourtCourt of Appeal
Date03 April 2014
BETWEEN
Ryan Karl Tapsell
Appellant
and
The Queen
Respondent

[2014] NZCA 122

Court:

Ellen France, MacKenzie and Mallon JJ

CA703/2013

IN THE COURT OF APPEAL OF NEW ZEALAND

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.

Counsel:

M J Winders for Appellant

S K Barr and L Matehaere for Respondent

  • 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.

JUDGMENT OF THE COURT
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 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.

4

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
5

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 customary authorisations to be issued to him on the basis of fictitious events. While they authorised the taking of paua on a single date only, the appellant used those authorisations to take paua on multiple occasions from the date of issue until the specified date. On some occasions he obtained extensions of time.

6

The diving was undertaken by the appellant, usually accompanied by T or H who would act as boat hands. After the paua had been shucked and bagged, the appellant and H took the paua to the premises of a number of dealers in fish, where the co-offender negotiated sales to those dealers. The appellant is not a commercial licensed fish receiver or fish farmer and is not lawfully able to acquire or possess fish for the purposes of sale.

7

The offending occurred on dates between May 2010 and March 2011. The charges against the appellant involved a total of between 395–526 kg of shucked paua meat.

The sentencing
8

The Judge fixed a starting point on a totality basis in relation to all the offences. He noted the substantial harm the black market in seafood causes to the country's economic interests and the risk of seafood being sold for human consumption otherwise than in accordance with the prescribed standards. In assessing the aggravating features of the offending the Judge described it as calculated, cynical and motivated by greed. He noted the manipulation and utilisation of the customary authorisation process as a significant feature of the offending. He described the duration, scale, premeditation and manipulation of the customary fisheries process as aggravating. He described the appellant as the primary offender. The Judge found no mitigating features of the offending.

9

After considering a number of comparable fisheries decisions, the Judge adopted a three and a half year starting point for the offending. 6 The Judge then imposed an uplift of six months to reflect the appellant's previous convictions, which included convictions for fisheries offences.

10

The Judge found no mitigating personal factors. He considered whether there should be any discount for the late guilty plea. He held a discount would have been available had sentencing taken place following the guilty plea on day three of the trial, but, having regard to subsequent events, found there should be no discount for the plea.

11

The Judge considered whether any allowance should be made because of the compulsory forfeiture of the boat and equipment seized from the appellant and held that it should not.

12

The Judge then considered whether a minimum period of imprisonment should be imposed. He said that he was required to look at the offending itself and where it sits on the continuum of fisheries offending. The Judge's assessment was that it was fisheries offending of the worst kind, not in terms of scale but in terms of the manipulation of the fisheries and authorisation process. In his view, release after one third would represent insufficient denunciation, punishment and deterrence in all the circumstances, so he imposed a minimum non-parole period of 50 per cent.

13

The co-offenders were sentenced, following their pleas of guilty, on 1 May 2012, also by Judge Crosbie. H faced seven charges of obtaining a benefit by selling paua contrary to the Act and one charge of abetting the making of a false statement. 7 T faced six charges of aiding the taking of paua in contravention of the Act, three charges of joint possession of paua with the intention of obtaining a benefit in contravention of the Act, and one of abetting a sale in contravention of the Act. 8 The Judge described their respective roles in the offending, and in doing so referred to the appellant as the primary offender. The Judge adopted a starting point

of 18 months for both co-offenders. Those starting points were subsequently upheld on appeal by the High Court. 9
Counsel's submissions
14

Mr Winders for the appellant submits that the Judge erred in his assessment of the starting point and that the resulting disparity with the sentences imposed on the co-offenders is such as to not be consonant with the appearance of justice. 10 Counsel accepts that the appellant's starting point should be higher than that imposed on the co-offenders to reflect his additional culpability arising from having organised and obtained the fraudulent customary authorisations. He submits however that there has been double-counting by the Judge, in that he adopted a starting point 12 months higher than the co-offenders' starting point of 18 months (which did not include the customary authorisation offences), and then applied an additional uplift of 12 months to reflect those offences. Mr Winders submits that either of those uplifts may be appropriate to reflect the totality of the appellant's offending, but to impose both involves a double penalty for the same aggravating feature. He submits that a starting point of two years to two years and three months prior to assessing personal aggravating and mitigating factors, instead of the three and a half years adopted by the Judge, was appropriate. He also submits that the Judge should have made a small discount (of 10 per cent or less) for the guilty plea, and that some discount should have been made in sentencing for the forfeiture, on which there is a legislative tension between s 10B of the Sentencing Act 2002 and s 256(14) of the Act.

15

Mr Winders further submits that the minimum period of imprisonment of two years (50 per cent) should not have been imposed.

16

Mr Barr for the respondent submits that the starting point was within the available range, and refers to the decision in Ho v Ministry of Fisheries. 11 He submits that the quantity of paua involved, the duration of the offending and the lead role the appellant played would have justified a starting point in the order of three

years imprisonment, without the additional element of the customary authorisation offences. The uplift by the Judge to reflect that offending was appropriate and did not involve double-counting the appellant's additional culpability arising from him having organised and...

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