Judge discharges Greenpeace activists citing earlier diversion of co-protestor
By Gavin Evans
Sept. 21 (BusinessDesk) - Convicting Greenpeace executive director Russel Norman and activist Sara Howell for interfering with a seismic survey last year would have been unfair when a fellow protestor was granted diversion for the same offence, Judge Arthur Tompkins says.
The judge today discharged Norman and Howell without conviction, saying the cumulative consequences of a conviction would be out of proportion to what was “low level” offending off the Wairarapa coast in April 2017.
He said that conclusion was particularly supported by the way the third protestor - Gavin Mulvay – had been treated. Mulvay was granted diversion after apologising for his actions and the increased health and safety risks the protest had posed to workers on the survey ship Amazon Warrior and its support vessels.
The judge noted that, having refused diversion, Norman and Howell now faced a more serious penalty than their co-offender when all three had been “equally involved in exactly the same sequence of events.”
Norman and Howell each faced a potential $50,000 fine or a year in prison after getting into the water about two kilometres ahead of the 21,000 tonne Amazon Warrior and forcing it to stop work and change course. The vessel, which costs about $400,000 a day to run, took eight hours to complete a 360-degree turn and resume its work.
“I consider that the two defendants currently before the court should be treated alike to Mr Mulvay in order to achieve parity and consistency of result, the least restrictive outcome appropriate in all the circumstances, and an outcome that is not disproportionately severe," said Judge Tompkins in a 14-page decision. “It is on the basis of the application of those fundamental sentencing principles that I am satisfied that both Mr Norman and Ms Howell should be discharged without conviction."
Greenpeace hailed the decision as a “historic” victory.
“We’re thrilled with this verdict. We see this as a major win not just for us, but for the whole movement of people fighting against fossil fuels,” Norman said.
The Ministry of Business, Innovation and Employment, which regulates exploration activities, said it is considering its options regarding any appeal. It urged protesters to abide by the law in future.
Jackie Adams, national compliance manager in MBIE’s energy and resource markets unit, said the guilty pleas by Norman and Howell were an acknowledgment that they had broken the law.
“Protest at sea is not unlawful, but any protest must be mindful of others and the law,” she said.
The prosecution was the first under a 2013 amendment to the Crown Minerals Act which made it an offence to interfere with the operations of a vessel undertaking exploration work.
While Mulvay accepted diversion last year, Norman and Howell – both Greenpeace employees – refused to. They changed their plea to guilty in April this year only after MBIE dropped two charges against Greenpeace New Zealand. The organisation could have faced $200,000 in fines.
By July, when a sentencing hearing was held in Napier District Court, MBIE had dropped a demand for $150,000 of reparations, but continued to oppose discharge without conviction.
Crown prosecutor Cameron Stuart told the court then that the protest was highly organised and entirely premeditated.
Greenpeace had taken every opportunity to broadcast their protest and had since cast themselves as victims of an unjust prosecution. He argued Norman and Howell had used the court as a platform to publicise their views and now sought the indulgence of the court to avoid a conviction.
Stuart described the offending as “mid-level” and suggested a substantial fine and/or some community service would be a suitable penalty.
In today’s decision, Judge Tompkins agrees that the protest was premeditated and designed to be disruptive. From the evidence, planning had been under way since January at the latest.
But he classed the offending as “low to moderate” given that there had been no violence, no vessels were trespassed on, and that all the parties remained physically separated at all times.
Importantly, MBIE must have also have formed the same view “because it made an initial offer of diversion to all three co-defendants,” the judge said.