The quashing of a man's conviction for stealing avocados from a Tauranga orchard is unlikely to set a precedent for stealing from Hawke's Bay orchards.
Sohail Reza Dar, a refugee from Iran, had his burglary conviction overturned after he appealed on the grounds that the Tauranga avocado orchard he stole from was not an "enclosed yard" and therefore what he had done did not constitute a burglary.
Dar pleaded guilty last July to a burglary charge during a District Court trial in Tauranga but later appealed when he became aware that he had a defence - that the avocado orchard did not constitute an "enclosed yard" under the Crimes Act.
The Court of Appeal found that while Dar was probably guilty of the theft, he could not, as a matter of law, be guilty of burglary. The Crown had failed to establish that the orchard was an enclosed yard, which was one of the essential ingredients of the offence of burglary.
Solicitor Rebecca Craighead of Bannister and von Dadelszen said she was not familiar with the specific facts of this case, but presumed police charged the offender with burglary as opposed to theft because a burglary conviction carries a higher sentence than one for theft.
"A conviction for burglary carries a maximum imprisonment term of 10 years, as opposed to a conviction for theft, which carries a maximum imprisonment term of seven years for items whose value exceeds $1000.
"I understand that the court found that it was likely the defendant would have been guilty of theft, but he was charged with burglary, so that was what the court was dealing with when the case was appealed," she said.
If a person went on to a Hawke's Bay orchard and stole fruit, depending on the facts of the case, it was likely the police would charge them with theft, so a burglary charge had not been the only option available in the Tauranga case.
Taradale avocado grower Sue Hawken said her business, 114 Avocados, had been victim of a similar crime, but she had been successful in gaining a conviction.
"I'm not too sure what they mean by an enclosed yard.
We had a fence with a gate and he (the offender) climbed over the fence. I guess it must have qualified as enclosed and we got a conviction," she said.
The man had stolen $10,000 worth of fruit. However, he was nabbed by police with only 490 stolen avocados on him, and they were awarded restitution for that fruit.
Since then an electronic gate and electric fences had been fitted.
Mrs Hawken said the situation in Tauranga was "terrible, especially if they knew he was actually guilty".
She said the theft of the livelihood people worked so hard for could be heartbreaking. "In our case it happened in June and he stole a lot of the next season's fruit. It looked the same on the outside, but it wouldn't have matured and ripened correctly - it would have been a watery mess," she said.
Hugh Moore, chairman of the Avocado Growers Association, said the quashed conviction was "absolutely ludicrous".
"To say somebody didn't know that they were stealing somebody's livelihood means that the law has gone crazy."
Mr Moore said avocado thefts were becoming more prevalent, especially after last year's high prices.