HARVEY v MINISTRY OF PRIMARY INDUSTRIES [2020] NZCA 519

HARVEY v MINISTRY OF PRIMARY INDUSTRIES [2020] NZCA 519 [21 October 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA361/2020[2020] NZCA 519BETWEEN STEPHEN GRAHAM HARVEYApplicantAND MINISTRY OF PRIMARY INDUSTRIESRespondentCourt: Gilbert, Mallon and Ellis JJCounsel: E J Forster for ApplicantS K Barr and T R Simpson for RespondentJudgment:(On the papers)21 October 2020 at 3.30 pmJUDGMENT OF THE COURTThe application for leave to bring a second appeal against sentence is declined.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] This is an application for leave to bring a second appeal against a fine imposedunder the Fisheries Act 1996 (the Act).[2] Mr Harvey was employed as the master of a commercial fishing vesseltargeting tuna using the surface longline method. He pleaded guilty to two unrelatedsets of offending in two distinct periods, close in time. The first set of offendingoccurred during the period from 2 May 2016 to 8 June 2016 — 17 charges of failingto deploy bird scaring devices to minimise bird bycatch when trawling.1The maximum penalty for each of these offences was $100,000.2 On 23 July 2018,Mr Harvey was fined a total of $13,500 for this offending. The second set of offendingoccurred on 15 occasions on three separate trips during the period from 16 July 2016to 2 September 2016 —misreporting of bycatch, an offence under s 230(1)(b) of theAct carrying a maximum fine of $250,000.3 In particular, Mr Harvey grosslyunder-reported shark and other bycatch returned to the sea dead or unlikely to survive.This false reporting reduced the catch attributed against the fishing permit holder'sannual catch entitlement. On 17 March 2020, Judge Butler fined Mr Harvey $24,472for this offending.4[3] Mr Harvey appealed against the fine of $24,472 for the second set of offending.His appeal was dismissed by Churchman J in a judgment delivered on 16 June 2020.5[4] Mr Harvey now applies for leave to bring a second appeal against this fine.He contends that the courts below made an error of approach in failing to allow atotality adjustment taking account of both sets of offending and this resulted in the finebeing disproportionately high for the second set of offending. Mr Harvey argues thatthe correct application of the totality principle raises a matter of public importancejustifying the grant of leave for a second appeal.[5] This Court must not give leave for a second appeal against sentence unlesssatisfied that the appeal involves a matter of general or public importance or amiscarriage of justice may have occurred, or may occur, unless the appeal is heard.6It is rare for leave to be given for a second appeal against sentence.[6] The totality principle in sentencing is given statutory recognition in s 85 ofthe Sentencing Act 2002. It specifically applies where the court is consideringimposing sentences of imprisonment for two or more offences. However, the principleis sometimes applied more broadly than this, including, for example, where reparation1 Fisheries (Commercial Fishing) Regulations 2001, regs 58 and 84(3).2 Regulation 85(4).3 Fisheries Act 1996, s 252(3)(m).4 Ministry of Primary Industries v Harvey [2020] NZDC 4886.5 Harvey v Ministry of Primary Industries [2020] NZHC 1357 [High Court judgment].6 Criminal Procedure Act 2011, s 253(3).is ordered in addition to a fine.7 The rationale for a totality discount andthe circumstances in which it may properly be applied are well-established.[7] Churchman J accepted there was theoretically room for the application ofthe totality principle in circumstances such as the present case where successive finesare imposed for offending occurring proximately in time. However, the Judgeconsidered the overall fine imposed on Mr Harvey for both sets of offending was"well within ... range" and no further adjustment for totality was required.8[8] We are unable to identify any error in the High Court's analysis. By anymeasure, the fines imposed on Mr Harvey for each set of offending were set at a lowlevel, near to the bottom of the permissible range. The offending in each case wasserious and persisted over an extended period. The fines imposed were less than10 per cent of the maximum penalty. This could only be justified if Mr Harvey's levelof culpability was assessed as being low. We note there is no suggestion inthe sentencing notes that Mr Harvey did not have the means to pay an appropriate fine.[9] Even if the application of the totality principle in a case such as the presentcould raise a matter of general or public importance, we are satisfied this is not anappropriate case for that issue to be considered. The proposed appeal has insufficientprospects of success to justify the grant of leave. We see no risk of a miscarriage ofjustice occurring if leave is not granted for a second appeal. There is therefore nobasis for this Court to grant leave for a second appeal against the fine imposed forthe second set of offending. The application must accordingly be declined.Result[10] The application for leave to bring a second appeal against sentence is declined.Solicitors:Crown Law Office, Wellington for Respondent7 Adams on Criminal Law — Sentencing (online ed, Thomson Reuters) at [SA 85.05]; and Hall'sSentencing (looseleaf ed, Lexis Nexis) at [SA 85.14].8 High Court judgment, above n 5, at [24]–[28].