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An Auckland-based international rugby player and social media content creator who could have faced up to two years’ imprisonment and a $250,000 fine after posting an outrage-causing video of himself speeding a power boat into a flock of endangered birds has argued to the High Court that his non-custodial sentence was unfair.
An appeal judge, however, has rejected that argument - allowing Riverhead resident Matt Jurlina’s conviction and $2500 fine from January to stand.
The consequences of a conviction, even if it was to affect his future rugby aspirations, aren’t “out of all proportion to the gravity of his offending”, Justice Timothy Brewer concluded in a newly released judgment.
Jurlina, 24, was skippering his boat on the Hauraki Gulf near Simpsons Rock in September 2022 when he charged the vessel at an estimated 30 knots into a large flock of fairy prions, or tītī wainui, which had been resting on the calm surface.
“As it approached the flock the boat made no attempt to slow or deviate its course to avoid striking the birds,” court documents state. “The occupants of the boat are heard yelling and laughing in the video as they pass through the flock. The video also included the text, ‘We f**kn love birds ay’ and laughing emojis.”
An ornithologist who reviewed the four-second video for prosecutors noted that birds were likely to have been hit and would have either died immediately or died from starvation if they had suffered broken bones.
Jurlina, who chronicled his international travels and outdoorsman activities on his Instagram account, came to the attention of the Department of Conservation after a member of the public alerted it to the post. Since his sentencing, Jurlina has made the account private.
He was charged with hunting or killing prohibited marine wildlife and was sentenced by Judge Kathryn Maxwell in North Shore District Court in January after pleading guilty.
During the January hearing, defence lawyer Mireama Houra said her client was very remorseful but felt he had no other choice other than to continue throttling, for the safety of his passengers, when he suddenly realised the birds were in his path. She read from a bird guide noting that fairy prions were often hard to see on the water because of their colouring.
Houra again represented Jurlina last week in the High Court appeal hearing before Justice Brewer. She again argued that her client felt he had to choose between the safety of his passengers - who could fall overboard if the boat was to suddenly decelerate or veer off course - and the birds.
Justice Brewer declined an offer by Crown prosecutor Emma Kerr to watch the video clip in court, but he changed his mind after the hearing concluded and watched it before making his decision.
Matt Jurlina was charged with hunting or killing protected marine wildlife after posting a video of him skippering a speed boat through a flock of endangered birds.
“The flock of fairy prions was large and obvious,” Justice Brewer concluded. “Mr Jurlina drove the boat at high speed directly into the flock without attempting to slow or change course. He continued to video the incident throughout. The [district court] judge was entitled to conclude that Mr Jurlina prioritised capturing the footage rather than slowing down or deviating away from the birds.
“There was boisterous hilarity in the boat during the incident, and the posting of the video footage together with the text, ‘We f**kn love birds, eh’ and laughing emojis, is evocative of this.”
Jurlina’s lawyer also argued at the sentencing and the appeal hearings that a conviction would potentially derail his rugby and gas-fitting careers, which would be out of proportion to the level of his offending. Jurlina travelled to Lithuania last year after he was selected to play for the Croatian national rugby team in international matches. He aspires to represent New Zealand as well, his lawyer said.
Some countries - including Australia, Canada and the United States - have strict border restrictions that take into account conviction history. But there’s no indication he will be called upon to play rugby in those countries, both judges determined. They also both noted that he’s had a previous, more serious conviction on his record - after attacking a security guard who had caught him and his friends trespassing when he was 17 - and it hadn’t stymied his career to date.
Justice Brewer noted that Jurlina did lose his job after his conviction and sentencing in January, something he said the district court judge “did not foresee”.
“However, the judge was correct in her observation that, generally, offenders can expect adverse consequences for their employment,” Justice Brewer said in his judgment. “In this case, it is clear that it was not the conviction which caused Mr Jurlina to lose his job but the offending. Mr Jurlina has never had name suppression and even if he had been discharged without conviction the details of his offending would still have caused the outrage it did.”
“Even if Mr Jurlina had established that there was a real and distinct possibility that he might be picked for the Croatian rugby team to play in a country where his previous convictions might prove to be an impediment, I would not find that test met,” Justice Brewer concluded. “In this regard, I agree with the [district court] judge that in offending of this sort the sentencing purpose of deterrence is to be emphasised. The appeal is dismissed.”
The Herald, which attended last week’s hearing, requested access to the video that had resulted in Jurlina’s conviction. As part of his reserved decision, Justice Brewer said he understood why the request was made but denied it.
“Having regard to the important constitutional principle of open justice, the video record showing Mr Jurlina’s offending is the best way of showing the public what happened,” he explained. “But, I decline the application because of the likely effects on Mr Jurlina if I grant it. ... In my view, there is a very real risk that, if the video were again made public, Mr Jurlina would be subjected to more vitriol and threats and his job might again be in jeopardy.”
Jurlina’s lawyer said her client had posted the video “in a fleeting moment” but quickly took it down after realising from the responses he was getting on social media that it wasn’t appropriate and had been an “egregious mistake”.
Justice Brewer responded during the hearing that he had read some of the comments to Jurlina’s social media account and had found most of them to be “completely over the top and out of all proportion”. But he also noted that Jurlina would have well known social media’s reputation for people saying “the most extreme things” that they wouldn’t necessarily say or follow up in person.
“You live on social media, you die on social media, don’t you?” the judge asked, acknowledging that Jurlina has suffered consequences beyond anything that had occurred in court. “You stir up indignation on social media at your peril.”
Craig Kapitan is an Auckland-based journalist covering courts and justice. He joined the Herald in 2021 and has reported on courts since 2002 in three newsrooms in the US and New Zealand.
