COOPER v MINISTRY OF PRIMARY INDUSTRIES [2020] NZHC 141

COOPER v MINISTRY OF PRIMARY INDUSTRIES [2020] NZHC 141 [12 February 2020]IN THE HIGH COURT OF NEW ZEALANDGISBORNE REGISTRYI TE KŌTI MATUA O AOTEAROATŪRANGANUI-A-KIWA ROHECRI-2019-416-18[2020] NZHC 141BETWEEN MOREHU SHANE COOPERAppellantAND MINISTRY OF PRIMARY INDUSTRIESRespondentHearing: 11 February 2020Appearances: L A Scott for the AppellantL M Marshall for the RespondentJudgment: 12 February 2020JUDGMENT OF COOKE J[1] Mr Morehu Cooper pleaded guilty at the District Court at Gisborne to onecharge of inciting the possession of paua taken in contravention of the Fisheries Act1996.1 Mr Cooper appeared for sentencing in June 2018 and sought to be dischargedwithout conviction. Judge Cathcart declined the application and a conviction wasentered.2 Mr Cooper was fined $750.[2] Mr Cooper appeals the decision declining his s 106 application on the groundsthe District Court failed to properly the consequences of a conviction.Factual background[3] Customary non-commercial fishing is regulated under the Fisheries (KaimoanaCustomary Fishing) Regulations 1998. The Regulations delegate management1 Fisheries Act 1996, s 232, maximum penalty $10,000 fine and Crimes Act 1961, s 66(1)(d).2 Ministry of Primary Industries v Cooper [2019] NZDC 11848.authority to tangata whenua, defined under the Regulations as the hapū or iwi whohold mana whenua mana moana over the area.3 Each tangata whenua may nominateTangata Kaitiaki (guardian) and specify the boundary for the coastal marine area forwhich the kaitiaki will have jurisdiction.4 After notification and confirmation of theappointment by the Minister, the Kaitiaki have the power to authorise the taking offisheries resources for customary food gathering pursuant to r 11:11 Power to authorise taking of fisheries resources for customaryfood gathering(1) A Tangata Kaitiaki/Tiaki appointed under these regulations mayauthorise any individuals, in accordance with this regulation, to take any fish,aquatic life, or seaweed for customary food gathering purposes from withinthe whole or any part of the area/rohe moana, for which the TangataKaitiaki/Tiaki has been appointed.(2) An authorisation made under subclause (1) may require that the takingof fisheries resources is consistent with the tikanga of the tangata whenua ofthat customary food gathering area/rohe moana.(3) No authorisation made under subclause (1) has any effect unless it hasbeen made in form 2, and specifies—(a) the date or dates that the species may be taken; and(b) the persons who are authorised to take the species; and(c) the species that may be taken; and(d) the quantity of each species that may be taken; and(e) size limits relating to each species to be taken; and(f) the method by which each species may be taken; and(g) the area or areas in which the species may be taken; and(h) the purpose for which the species may be taken; and(i) the venue at which the catch may be used; and(j) any other matters concerning customary food gathering theTangata Kaitiaki/Tiaki may reasonably specify, includinginstructions for the disposal of any fish, aquatic life, or seaweedtaken as an inevitable consequence of taking the fish, aquaticlife, or seaweed to which the authorisation relates.(4) Despite subclause (2), if the Tangata Kaitiaki/Tiaki and the chiefexecutive agree to a process and form of authorisation other than that3 Fisheries (Kaimoana Customary Fishing) Regulations 1998 s 2 definition of "tangata whenua".4 Regulation 9.prescribed in subclause (2) (which may include, but is not restricted to, thegranting of oral authorisations), that process and form of authorisationreplaces that prescribed in subclause (2) from an agreed date and for thearea/rohe mana described in regulation 9(2)(b), and every authorisation madein that form has the same effect as an authorisation made under subclause (1).(5) Any authorisation granted under subclause (4) must specify thematters referred to in paragraphs (a) to (j) of subclause (3).(6) The holder of an authorisation granted under subclause (1) mustproduce it when reasonably requested to do so by a fishery officer.(7) Any person to whom an authorisation is granted under subclause (4)must provide details which verify that authorisation when reasonablyrequested to do so by a fishery officer.(8) A Tangata Kaitiaki/Tiaki must not accept payment of any kind inexchange for an authorisation.[4] Mr Cooper is 55 years old and has lived in the Mahia region for the last 15years. He was nominated as Kaitiaki by the Apa Apa A-Rangi Marae and appointedKaitiaki to the Mahia Peninsula in 2010.[5] On 26 December 2015 Mr Cooper issued two customary permits. Each permitallowed for the gathering of 80 pāua for the whānau hui and were required to beharvested between 26 December 2015 and 2 January 2016. The permit holders wererecorded as being Jane Ormond and Ryan Ormond.[6] Mr Jose Ormond and Ms Juneallen Spark, two rumoured poachers, werepresent at the time the permits were issued. The Summary of Facts recordsMr Ormond and Ms Spark had been stood down from receiving authorisations for athree month period. Mr Cooper did not record their names on the permit as associatedharvesters but told them that they could gather pāua pursuant to the authorisation aslong as they accompanied a permit holder at the time of gathering. This advice wasincorrect as only those named and recorded on the customary authorisation arepermitted to gather pursuant to the authorisation.5[7] On 27 December fisheries officers were conducting fisher inspections at aremote beach in the Mahia Peninsula. Mr Ormond and Ms Spark had been diving andwhen inspected, presented two customary authorisation permits issued by Mr Cooper.5 Regulation 11(3)(b).The pair had a total of 107 pāua in their possession. When questioned, Ms Sparkexplained she had been informed by the Kaitiaki that she was allowed to gatherseafood under the permit but could not get one herself as she had been stood down.Mr Ormond said he was helping others named on the customary authorisation togather.[8] When interviewed Mr Cooper said he knew she should not have givenMr Ormond and Ms Spark advice that they could gather seafood under theauthorisation. He explained he did not record their names on the authorisations asthey were stood down from receiving authorisations at the time.District Court decision[9] The Judge outlined the facts of the offending and noted Mr Cooper hadoriginally faced additional charges but was discharged on those matters pursuant tos 147 of the Criminal Procedure Act 2011. The Judge then turned to an assessment ofthe gravity of the offending.[10] The Judge examined the legal regime for customary fishing and noted it waslargely a self-governing regulatory regime placing Kaitiaki at the cornerstone. Heobserved that "uprightness of kaitiaki is vital to the integrity of the permit system"6and Mr Cooper's conduct had to be assessed in that light. The offending "underminedthe integrity of the scheme" and his conduct breached that guardianship role.7 TheJudge rejected Mr Cooper's submission that his actions attempted to avoid potentialabuse of the system and characterised the offending as the deliberate inciting of twoknown poachers to circumvent the regulatory regime.[11] The Judge summarised Mr Cooper's personal circumstances and noted he wasof good character with no previous convictions and had pleaded guilty on the morningof the trial in the context of the withdrawal of the other charges. In terms of mitigatingfactors, the Judge accepted there was no impact on the fishery given all the seized pāuawas returned live to the sea. But he noted that was due "entirely to the intervention of6 Ministry of Primary Industries, above n 2, at [11].7 At [12].the fisheries officer".8 Overall, the Judge assessed the offending as low to mediumlevel offending.[12] Turning to the assessment of the direct and indirect consequences of theoffending, the Judge accepted there was "a real risk Mr Cooper might be unfairlyremoved as kaitiaki".9 That carried with it a loss of reputation within the local maraeand extended community. Mr Cooper also argued that if was removed as kaitiaki thosewith customary entitlements would face difficulty in receiving permits easily as theremaining six kaitiaki for the Mahia peninsula were not as accessible as Mr Cooper.The Judge rejected that was a factor Mr Cooper could advance under s 106 as the focusof the test was on direct and indirect consequences for Mr Cooper, not indeterminatethird parties.[13] Overall the Judge was not satisfied the consequences of a conviction were notout of all proportion to the gravity of the offending.Relevant law and approach to appeal[14] Section 106 of the Sentencing Act 2002 provides that if a person who ischarged with an offence is found or pleads guilty, the court "may discharge theoffender without conviction, unless by any enactment applicable to the offence thecourt is required to impose a minimum sentence". The application of s 106 is guidedby s 107:107 Guidance for discharge without convictionThe court must not discharge an offender without conviction unlessthe court is satisfied that the direct and indirect consequences of aconviction would be out of all proportion to the gravity of the offence.[15] More recently, the Court of Appeal, speaking of the s 107 test, said:10[11] It is settled that a court considering a discharge under s 106 of theSentencing Act 2002 should follow a three-step process addressingthe guidance given in s 107. These steps are:8 At [17].9 At [26].10 Prasad v R [2018] NZCA 537 (citations omitted).(a) identification of the gravity of the particular offence, takinginto account all aggravating and mitigating factors of theoffending and the offender;(b) identification of the direct and indirect consequences ofconviction; and(c) a determination of whether those consequences are "out of allproportion" to the gravity of the offence.Only if that threshold is met can the court move to consider the residualdiscretion under s 106. There must be a "real and appreciable" risk that anygiven consequence will happen. This standard recognises that the court isassessing the likelihood of something that may happen in the future.[16] The appeal is brought under ss 231 and 248 of the Criminal Procedure Act2011. An appeal against the refusal to grant a discharge without conviction is anappeal against conviction and sentence.11 The basis for determining an appeal againsta refusal to grant a discharge without conviction is whether a miscarriage of justicehas occurred:12(a) by virtue of a material error by the sentencing judge in entering aconviction; or(b) as a result of an error by the judge in applying the principles ofdischarging an offender without conviction under s 107 of theSentencing Act 2002.[17] The Court of Appeal in R v Hughes noted that such an appeal is not an appealagainst the discretion of the Court.13 It is a matter of fact requiring judicial assessmentand the discretionary power of the court to discharge without conviction arises only ifthe s 107 threshold has been met.14 Accordingly the normal appeal principles applyas set out in Austin, Nichols & Co Inc v Stichting Lodestar.1511 Jackson v R [2016] NZCA 627 at [6]–[16].12 At [12].13 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.14 At [28].15 Austin, Nichols & Co v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141. This approachwas confirmed in Brown v New Zealand Police [2019] NZHC 2348; and Sharma v New ZealandPolice [2018] NZHC 2471.Assessment[18] On appeal Ms Scott for Mr Cooper contends that the District Court was wrongto reject Mr Cooper's explanation for the offending provided in an affidavit, and alsoerred in not accepting that the adverse consequences of the conviction weredisproportionate given the low seriousness of the offending.Seriousness of offending[19] An assessment of the seriousness of the offending is an important aspect of apotential discharge under s 106. Here the Judge correctly identified that he was notconfined to the agreed facts set out in the Summary of Facts, and that he was entitledto draw inferences provided they were grounded on established primary facts.16Applying that approach the Judge did not accept the characterisation of the offendingthat Mr Cooper had set out in his affidavit. Rather he held that Mr Cooper had "intentionally incited two known poachers to circumvent the regulatory regime".17[20] I accept that the Judge went too far in this description, which is repeatedelsewhere in the judgment.18 It is unfair to conclude that the permits were being issuedto "two known poachers". That was not in the Summary of Facts, and there was noinformation before the Court that suggested that the two persons were known poachers— for example that they had prior convictions for poaching. Rather the informationbefore the Court was that it was known that there were allegations that they had beenselling seafood to undercover Fisheries Officers — that is that they were suspectedpoachers. Because of those allegations Kaitiaki in the region had decided that theirright to be issued permits should be suspended, or as it is recorded in the Summary ofFacts that " they had been stood down from receiving authorisations for a threemonth period".[21] But I also have difficulty with Mr Cooper's characterisation of his offendingas being limited to providing incorrect advice that the persons could take seafoodunder the permits. I agree with the District Court Judge that he was not obliged to16 Pokai v R [2014] NZCA 356 at [30]–[31].17 Ministry of Primary Industries v Cooper, above n 2, at [16].18 At [4] and [9].accept that characterisation. The evidence before the Court was that Mr Cooper wasone of 28 Kaitiaki in the area, although only six issued permits for customary fishing,and that Mr Cooper was more active given that he was more accessible to peopleseeking such permits. What is apparent from the Summary of Facts is that it had beendetermined by the Kaitiaki that permits should not be issued to Jose Ormond andJuneallen Spark because of the allegations that had been made about them which werebeing investigated. As the Judge concluded, what Mr Cooper did was neverthelessissue permits to allow them to engage in customary fishing.[22] In addition he issued those permits in the name of their relatives. It seems tome that the obvious inference was that he did so to conceal the fact that he was issuingpermits to persons who should not have been issued with them. Ms Scott argued thathe was only allowing them to harvest seafood for others. But if that were so they couldsimply have been named in the permits as people entitled to harvest for the permitholder as the standard form contemplates. As the Summary of Facts records they werenot so recorded as fishers as they had been stood down. So the true seriousness of thisoffending lies in the fact that Mr Cooper was acting inconsistently with the decisionsof the Kaitiaki, and that he then hid what he was doing so by issuing the permits inother names. The integrity of the system was accordingly undermined. It seems tome that Mr Cooper's affidavit does not fully accept the significance of hiswrongdoing. The District Court Judge was right to dismiss Mr Cooper'scharacterisation.[23] Ms Scott emphasised that the offending was comparatively minor, reflected inthe $500 fine the prosecutor sought, and that the Judge had wrongly re-characterisedit as more serious. I accept that from a fisheries resource perspective it may not beregarded as particularly serious offending. Permits were still issued, and if anyseafood had been taken under them it would count against the overall customary quotafor the region. But the offending is still of significance as it involves an underminingof the integrity of the regime.Are the consequences out of proportion?[24] The next consideration is to assess whether the consequences of a convictionare out of all proportion with the gravity of the offence. The main consequence reliedupon was that Mr Cooper would be removed as a Kaitiaki if he remained convicted.[25] The Court received affidavit evidence from Mr Arthur Bowan, one of theKaitiaki of the Mahia Māori Committee who is the notifying authority for the MahiaRohe. He explained that whether Mr Cooper would continue in his role as a Kaitiakiwould be a decision of the Mahia Māori Committee, but that the Committee wouldlikely follow the recommendation of Mr Cooper's Marae, the Apa Apa A-RangiMarae. Mr Hohepa Cooper, the Chairman of the trustees of the Apa Apa A-RangiMarae explained in his affidavit that whether Mr Cooper was convicted would be ofparticular importance to their decision. He says his removal as a Kaitiaki was highlylikely if convicted, but " if the Court's approach is that he is not convicted, then theperception is that it would not warrant him being stood down".[26] This evidence was assessed by the Judge. He set out the general backgroundto the Regulations, and the self-governing role of Māori under them. He acceptedthere was a cognisant risk the defendant would be removed as Kaitiaki, and that therewould be a loss of reputation and potential flow-on effects. These included thepotential that he would not be able to be issued with fishing permits himself. In hisaffidavit filed for this appeal Mr Cooper also said that he had been told he should notstand for re-election on the Rongomaiwahine Iwi Trust panel. The possible impactsfor the wider community were also referred to given that Mr Cooper is understood tobe the most accessible Kaitiaki, albeit the Judge noted that third party impacts werenot relevant to the s 107 assessment.[27] Ultimately the Judge was not convinced that the risk of adverse implicationswas sufficient to warrant a discharge. He noted that "whether the Marae Committeewishes to allow Mr Cooper to continue his role as Kaitiaki should be based on illegalconduct rather than the entry of conviction alone".19 I agree with the Judge on thispoint. The potential consequences of Mr Cooper's wrongdoing, including any19 Ministry of Primary Industries v Cooper, above n 2, at [32].conviction, is a matter for the Mahia Māori Committee and the trustees of the Apa ApaA-Rangi Marae. Further decisions of those bodies will be involved. Mr Cooper'sconviction does not automatically lead to his removal as a Kaitiaki.[28] The Courts are increasingly recognising the importance of Māori autonomy,and the relevance of tikanga Māori. As the Judge outlined, that autonomy is a keyaspect of the Regulations. The Mahia Māori Committee and the trustees of the ApaApa A-Rangi Marae have the responsibility for deciding whether Mr Cooper shouldcontinue as a Kaitiaki. It is right that they should make the decision. When doing sothey can be expected to apply the principles of tikanga Māori.[29] That these bodies should make the decision is particularly appropriate giventhat the wrongdoing involved Mr Cooper acting inconsistently with the decisionsmade by the Kaitiaki, and that he concealed that he was doing so by issuing permitsin other names. Moreover as the Judge held, this approach undermined the integrityof the system under the Regulations administered by the Kaitiaki. These will no doubtbe relevant considerations when the Committee and the trustees make their decisions.These considerations arise whether or not the Court decides to discharge Mr Cooperunder s 107. It should not be thought that it is a decision for the Courts to make.[30] It is of course relevant for the Court's assessment under s 107 that theseadverse consequences may flow from a conviction. But as the Judge recorded theseconsequences flow from the wrongdoing, and not just the conviction. The essence ofthe s 106 decision is a finding that the consequence of a conviction are out of allproportion to the seriousness of the offending. Without wishing to prejudice theultimate decisions made in this case in any way, it might not be thought to bedisproportionate for a decision to be made that Mr Cooper no longer be responsiblefor issuing such permits. But as I emphasise, that is not a matter for this Court. It isfor the relevant Māori authorities to decide.[31] Ms Scott emphasised that the reality was that unless Mr Cooper was dischargedhe would be removed as Kaitiaki, and that this was the likely affect of dismissing theappeal. She said allowing the appeal would leave these bodies free to make theappropriate decision. But in my view they are free to make this decision whether ornot the conviction remains. It is ultimately a question for them. I am not persuadedthat dismissing the appeal removes the possibility that a decision in Mr Cooper'sfavour might still be made, or that he might not be removed even if the appeal wereallowed.[32] In his affidavit sworn for this appeal Mr Cooper raises another potentialadverse consequence, being the negative impact that the conviction may have on hisability to obtain employment. He is currently unemployed and speaks of a recent jobinterview where his conviction caused potential concern. But for the moment theextent of such adverse consequences is unclear. Potential employers can be expectedto also take into account Mr Cooper's undoubted good service to the community formany years, and his general good character. He has no previous convictions. Thisoffending was clearly an aberration. It is a one-off matter in the context of a personwho otherwise presents as a person of integrity. I accept this factor is relevant, but byitself does not demonstrate that a conviction is out of proportion to the seriousness ofthe offending.Conclusion[33] For these reasons, whilst there are some aspects of the reasoning of the Judgethat I do not share, I agree with much of his reasoning, and also agree with theconclusion that he reached. For these reasons the appeal is dismissed.Cooke JSolicitors:Quay Legal, Wellington for the AppellantCrown Solicitors, Gisborne for the Respondent