IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE	
CRI-2020-441-10
[2020] NZHC 1357	

BETWEEN	STEPHEN GRAHAM HARVEY
Appellant	
AND	MINISTRY OF PRIMARY INDUSTRIES
Respondent	

Hearing:	16 June 2020	
Counsel:	E J Forster for Appellant
M M Mitchell for Respondent	
Judgment:	16 June 2020	

JUDGMENT OF CHURCHMAN J

Introduction

[1]	On 17 March 2020 Mr Harvey was fined $24,472 in the Napier District Court by Judge Butler, for making a false or misleading statement and omitting material information in a communication prescribed by the Fisheries Act 1996, amounting to a breach of s 230(1)(b) of that Act.1

[2]	Mr Harvey appeals the fine on the basis that it constitutes a manifestly excessive sentence, for two reasons:

(a)	the sentencing Judge should not have imposed an uplift for Mr Harvey’s previous convictions given that they were so close in time; and

1	Ministry of Primary Industries v Stephen Graham Harvey [2020] NZDC 4886.

HARVEY v MINISTRY OF PRIMARY INDUSTRIES [2020] NZHC 1357 [16 June 2020]

(b)	the sentencing Judge erred in failing to reduce the sentence on the basis of the totality principle.

[3]	The Crown opposes the appeal. Ms Mitchell, counsel for the Crown, submit that there was no error in the imposition of an uplift, and no requirement for an adjustment for totality.

[4]	I have concluded that the appeal should be dismissed. Having regard to the purposes underlying the imposition of an uplift for previous convictions, I do not think the Judge’s decision to impose an uplift here was inconsistent with those purposes. No adjustment for totality was needed, as the sentence was not wholly disproportionate to the gravity of the overall offending.

Background

Factual background

[5]	In 2016, Mr Harvey was employed as the vessel master for the commercial fishing vessel Danielle 32841 (“FV Danielle”). At this time, the vessel fished tuna through the surface longline method, and was operating under a fishing permit held by Esplanade No 3 Ltd, whose sole director was Antonino D’Esposito (both Esplanade No 3 Ltd and Mr D’Esposito were charged alongside Mr Harvey for breaches of the Fisheries Act).

[6]	Between 16 July 2016 and 2 September 2016, an MPI Fisheries Observer was posted to the FV Danielle, while Mr Harvey acted as the vessel master. The Observer witnessed 15 events in which the surface longline was set over three separate trips. Throughout these trips, a number of non-Quota Management (QMS) fish species, including oilfish, escolar and lancetfish were landed to the vehicle and discarded. When filling out the prescribed landing document (specifically the Catch Landing Return) on these trips, Mr Harvey omitted to declare the landing and taking of an estimated 226 kilograms of these non-QMS fish species. This gave rise to his first charge under s 230(1)(b).

[7]	Throughout these trips QMS species including blue shark, mako shark and porbeagle shark,2 were also landed to the vessel and discarded. When completing the Catch Landing Returns, Mr Harvey falsely or misleadingly declared an estimated 3796 kilograms of these shark species against destination code X.

[8]	Destination Code X is a reporting code for QMS species that are returned to the sea alive and are likely to survive. This is required to be reported on the Catch Landing Returns and is not attributed against the Annual Catch Entitlement of the fishing permit holder. Conversely, Destination Code Z is a reporting code for QMS species that are returned to the sea dead or unlikely to survive. This is also required to be reported on the Catch Landing Returns and is attributed against the Annual Catch Entitlement of the fishing permit holder. Mr Harvey was observed using Destination Code X regardless of whether the fish were dead or likely survive, giving rise to his second charge under s 230(1)(b).

[9]	When questioned about his actions, Mr Harvey stated that he was unaware that all non-QMS species were required to be recorded on the Catch Landing Returns, and that he was unaware of the difference between the “X” and “Z” codes. He was charged for these offences on 20 July 2018 and pleaded guilty on 27 February 2020.

[10]	Given counsel for Mr Harvey’s submissions are partly premised around his previous convictions, I note that previously,  between  2  May  and  8  June  2016, Mr Harvey had breached the Fisheries Act by failing to use a seabird scaring device while setting a surface longline as required under Fisheries (Commercial Fishing) Regulations 2001 and the Fisheries (Seabird Mitigation Measures – Surface Longlines) Circular 2014). He was charged in respect of this offending on 27 October 2017 and convicted and  sentenced  on  23  July  2018.  Although  it  appears  that Mr Harvey may have other, older convictions, the critical prior convictions for the purpose of this appeal are the ones relating to the failure to use a seabird scaring device.

2	Blue shark, mako shark and porbeagle shark are QMS species listed in Schedule 6 of the Fisheries Act as species that may be returned to the sea dead or near dead.

District Court decision

[11]	All three defendants (Mr Harvey, Esplanade No 3 Ltd and Mr D’Esposito) were sentenced by Judge Butler on 17 March 2020. After setting out the relevant charges and facts, the Judge noted that the maximum penalty for Mr Harvey’s offending was a $250,000 fine and/or a community-based sentence, and indicated his preference to impose a financial penalty. The Judge, referring to the case of Department of Labour v Hanham & Philp Contractors Ltd, stated that the offending was in the low culpability range for this variety of offending, justifying a fine of under
$50,000 for all three defendants. Ultimately, the Judge found that an appropriate starting point was a fine of $40,000 for all three defendants, and upon considering responsibility and culpability across each defendant, decided that Mr Harvey should be liable for 70 per cent  of the fine.  He then applied an uplift of 15  per cent  for  Mr Harvey’s previous convictions, and a discount of 20 per cent for his guilty plea. The end sentence therefore amounted to a $24,472 fine for Mr Harvey.

[12]	In his oral submissions,  Mr  Forster  criticised  the  Judge  for  applying  a  15 per cent uplift equally to all three defendants. However, it is clear that all three defendants do have prior convictions. In the absence of any submissions in this appeal that the other defendants’ convictions were worse than Mr Harvey’s, I am not able to conclude that there was an error in adopting the same percentage for each.

Position of the parties

Mr Harvey

[13]	As discussed above, counsel for Mr Harvey’s submissions relied on two primary grounds. Firstly, it was submitted that the Judge erred in applying an uplift to Mr Harvey’s sentence for his similar previous convictions, namely for his offending committed between 2 May and 8 June 2016, discussed at [10] above. Counsel argued that care needed to be taken in not double punishing an offender through imposition of an uplift. In this case, according to counsel, penalties imposed for Mr Harvey’s previous convictions (the fishing line offending) would not have deterred the offending that is the subject of this case (the misrepresentation offending), because

those penalties had not been imposed when the misrepresentation offending occurred, and the charges had not even been laid.

[14]	Counsel also submitted that the utilitarian justification behind imposing uplifts (in order to protect the community on the basis that past offending is predictive of future offending),3 was not applicable in this case, given that the sentence imposed was in the nature of a fine, rather than a sentence of imprisonment, where an uplift may have been justified to keep the offender away from the community for longer. Therefore, according to counsel, there was no rationale behind imposing an uplift in this case. As noted, it was also submitted that the Judge ought to have individually assessed each defendant in determining whether to impose an uplift, rather than imposing a 15 per cent group uplift.

[15]	With regard to the second ground, counsel submitted that the Judge had erred by not reducing the fine imposed on the basis of consistency with the principle of totality. While acknowledging the totality principle as set out in s 85 of the Sentencing Act 2002, counsel referred to Commerce Commission v Steel & Tube Limited, where this Court approved a totality reduction for a financial penalty.4 Counsel sought to distinguish this case from Thurston v Manawatu & Wanganui District Council, where the High Court found that upon applying the principle of totality to fines imposed by the District Court for two sets of pollution-related offending (committed roughly a year apart), the penalties were not disproportionate to the gravity of the offending.5 Counsel submitted that because of the short time period between the two sets of offending, Mr Harvey did not have the chance to “lift his game” before the second set of offending occurred, as he had not yet been charged for the first set of offending. Therefore, according to counsel, the similar circumstances between the offending (with the same offender and vessel and both sets of offending being breaches of the Fisheries Act), combined with the fact that charges/penalties for the first set of offending had not been imposed, justified a totality reduction for the second/current offending, otherwise the sentence for the current offending would be unduly harsh.

3	Wipa v R [2018] NZCA 219 at [26].
4	Commerce Commission v Steel & Tube Limited [2019] NZHC 2098 at [116]-[119].
5	Thurston v Manawatu & Wanganui District Council HC Palmerston North CRI-2009-454-24,  27 August 2010 at [75]-[78].

The Crown

[16]	In response to the first ground of appeal put forward by Mr Harvey, counsel for the respondent submitted that the Judge did not err in uplifting Mr Harvey’s sentence on account of his previous offending. While Mr Harvey had not been charged and sentenced for the first set of offending when he committed the misrepresentation offences, counsel noted that deterrence was not the sole purpose of an uplift for previous offending, as previous offending could also act as an indicator of character, culpability and risk of re-offending.6

[17]	Counsel also pointed out that the appellant was interviewed by the informant about the first lot of offending on 23 June 2016 and would therefore have known of the likelihood of an impending prosecution prior to the commencement of the second lot of offending. Consequently, although the charges and penalties from the first set of offending would not necessarily have deterred Mr Harvey, the offending itself indicated a possible behavioural trend or pattern that was relevant in terms of aggravating the current sentence. It was also submitted that even contemporaneous offending could justify an uplift, given that this was also relevant to the assessment of character, culpability and risk. Counsel therefore submitted that despite the brief time period between the sets of offending, the Judge was entitled to take Mr Harvey’s first set of offending into account as an aggravating factor in sentencing him for the current charges, and thus apply an uplift.

[18]	In response to the second ground of appeal, counsel rejected Mr Harvey’s submission that the two sets of offending were so similar and close in time that an adjustment for totality ought to have been made. There was no overlap in time between the two sets of offending and each set related to different conduct. Cumulative, or separate sentences were accordingly appropriate. Counsel stressed that if the totality principle did apply, its ultimate purpose was to ensure that the end sentence was not out of proportion to the gravity of the overall offending. Considering the distinct sets of offending and sentences in this case,7 counsel stressed that the overall fine for both sets of offending fell below the highest penalty ($50,000) that

6	Counsel referred to Reedy v Police [2015] NZHC 1069.
7	Mr Harvey was fined $13,500 in respect of the first set of offending, and $24,472 in respect of the second set of offending.

could be awarded within the “low culpability” range of this variety of workplace offending under the guidelines set out in Department of Labour v Hanham & Philp Contractors Ltd.8 As a result, it was not wholly disproportionate to the gravity of the overall offending, and did not justify an adjustment or discount on the basis of the totality principle.

Approach on appeal

[19]	This appeal is brought under s 250 of the Criminal Procedure Act 2011. Under this provision, an appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.9 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.10

Relevant law and analysis

Uplift for previous convictions/offending

[20]	As noted by counsel for the respondent, in Reedy v Police this Court set out a number of principles underlying the imposition of uplifts for previous offending:11

The principles in relation to uplifting the previous offending can therefore be stated as follows:

(a)	there will be no uplift for the bare existence of previous convictions – to do so would be to punish offending more than once;

(b)	The permissible lines of reasoning, justifying an uplift, fall into three broad categories:

(i)	previous convictions bearing upon character and culpability;

(ii)	indication of predilection to offend in a specific way (an indicator of reoffending);

(iii)	the need to protect society by the imposition of a deterrent sentence. This necessarily requires the uplift to be firmly tied to specific aspects of the offender's criminal history.

8	Department of Labour v Hanham & Philp Contractors Ltd (2008) 6 NZELR 79 at [57].
9	Tutakangahau v R [2014] NZCA 279.
10	Ripia v R [2011] NZCA 101 at [15].
11	Reedy v Police, above n 6, at [19] (footnotes omitted).

(c)	the uplift must remain proportionate to the starting point fixed by the sentencing Judge.

(d)	there is no fixed figure beyond which an uplift will be held to be disproportionate. This is a matter to be determined, at first instance, by the sentencing judge having regard to all relevant factors (i.e. number, seriousness and nature of previous convictions, previous sentences imposed, time elapsed since the last conviction etc).

[21]	While contemporaneous offending may not operate as an aggravating factor to the same degree as previous offending (given that the offender has not shown a lack of response to or contempt for previous sentences imposed by the Court), it may still go toward an assessment of the offender’s character and culpability, as well as an indicator of a pattern of behaviour or risk of re-offending.12

[22]	Therefore, while counsel for Mr Harvey correctly submitted that the charges and penalties from his first set of offending would not have deterred him in his second set of offending given that the appellant had not been convicted or sentenced for them at the time he committed the second set of offending, deterrence is only one factor justifying an uplift for previous convictions/offending. The sets of offending are not exactly the same, but they also do have some similarity in that they are both breaches of the Fisheries Act relating to Mr Harvey’s workplace practice and behaviour while operating a fishing vehicle. As a result, the first set of offending acts as an indicator of not only Mr Harvey’s character and culpability (in that he was repeatedly breaching statutory workplace requirements under the Fisheries Act) but also an indicator pointing towards a higher risk of re-offending. While this is not a sentence of imprisonment, an uplift of Mr Harvey’s fine, based on these indicators, is both a recognition of a higher level of culpability, and as a deterrent in order to warn him against future breaches of the Act, based on the pattern of behaviour evident from the first and second set of offending. Given that this approach is consistent with the purposes of uplifting for previous convictions following Reedy, the Judge has not erred in applying an uplift here.

12	Simon France (ed) Adams on Criminal Law – Sentencing (online ed, Thomson Reuters) at [SA9.15(c)].

The totality principle

[23]	Section 85 of the Sentencing Act 2002 details the totality principle:

(1)	Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.

(2)	If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

(3)	If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.

(4)	If only concurrent sentences are to be imposed,—

(a)	the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and

(b)	each of the lesser offences must receive the penalty appropriate to that offence.

[24]	It is apparent that the provision refers to sentences of imprisonment, rather than fines. However, counsel for both parties accepted that the principle can apply by analogy to sentences involving fines, and Adams on Criminal Law notes that the principle has a “wider application” which can include sentences with financial penalties.13

[25]	As noted in Hall’s Sentencing, the totality principle is a standard principle of general application that requires the court to:14

…where it has imposed a series of cumulative sentences or a combination of concurrent and cumulative sentences upon an offender, review the overall sentence in order to ensure that the total is not excessively harsh or grossly disproportionate to the general level of gravity of the individual offences.

13	Simon France (ed) Adams on Criminal Law – Sentencing (online ed, Thomson Reuters) at [SA85.05].
14	Geoff Hall (ed) Hall’s Sentencing (online ed, LexisNexis) at [SA85.2].

[26]	A similar approach was applied in Ashcroft v R, where the Court of Appeal held that:15

A totality reduction is not automatic. It is only if the end sentence is “wholly out of proportion to the gravity of the overall offending” that a discount may be given.

[27]	The Courts have recognised that this is a flexible principle that cannot be applied in a single, rigid manner. In R v Williams, the Court of Appeal rejected the argument that there is a particular way in which total sentences must be put together in respect of multiple offending.16 Instead the issue of what is an appropriate total sentence for the various charges is constructed in the particular circumstances, as a matter of individual discretion and assessment.17 The failure of the Judge to mention the totality principle is of no moment if the sentence imposed is not out of proportion to the gravity of the offending.18

[28]	Applying the approach set out in Ashcroft, and acknowledging that there is no one single means to construct a sentence as held in Williams, I find that the Judge did not err in not adjusting Mr Harvey’s sentence to take into account the principle of totality. Ultimately, even if both sets of offending are considered together, I do not consider that the fine imposed is wholly out of proportion to the gravity of the overall offending. As discussed above, it fits well within the maximum penalty for the range of “low culpability” under Hanham, even though Mr Harvey’s current offending consisted of multiple offences committed over a number of separate occasions. I consider it to be well within the range available to the Judge, and not disproportionate.

Conclusion

[29]	I therefore dismiss the appeal.

Churchman J

Solicitors:
Crown Solicitor’s Office, Napier for Respondent
cc:	E J Forster, Barrister, Hastings for Appellant

15	Ashcroft v R [2014] NZCA 551 at [32].
16	R v Williams CA 91/00, 31 May 2000 at [11].
17	R v Williams, above n 6, at [11].
18	Kite v R [2018] NZCA 485 at [21].