Adams v Grayson
[1999] WASCA 83
•2 JULY 1999
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: ADAMS -v- GRAYSON & ANOR [1999] WASCA 83
CORAM: MILLER J
HEARD: 23 JUNE 1999
DELIVERED : 2 JULY 1999
FILE NO/S: SJA 1025 of 1999
BETWEEN: RUSSELL SCOTT ADAMS
Appellant (Complainant)
AND
GEOFFREY MARK GRAYSON
PETER JOHN ARENDS
Respondents (Defendants)
Catchwords:
Sentence - Criminal law - Mandatory additional penalty - Joint offenders - Whether penalty capable of apportionment
Legislation:
Fish Resources Management Act 1994
Sentencing Act 1995
The Criminal Code, s 7
Justices Act 1902, s 166A (now repealed)
Result:
Appeal allowed
Fine of $17,400 imposed on each respondent increased to $34,800
Representation:
Counsel:
Appellant (Complainant) : Mr R M Mitchell
Respondents (Defendants) : In person
Solicitors:
Appellant (Complainant) : State Crown Solicitor
Respondents (Defendants) : In person
Case(s) referred to in judgment(s):
Lloyd v Lowth, unreported; SCt of WA; Library No 930539; 22 September 1993
Samuels v Ebert [1970] SASR 103
Case(s) also cited:
Nil
MILLER J:
Appeal
This is an appeal from the imposition of certain mandatory penalties under the provisions of the Fish Resources Management Act 1994 imposed by Mr R M M Glynn SM in the Court of Petty Sessions Albany on 9 February 1999 in consequence of which the learned Magistrate apportioned mandatory additional penalties under the provisions of s 222 of the Act, purporting to do so pursuant to the provisions of s 55 of the Sentencing Act 1995.
The appellant appeals on a single ground of appeal, namely that the learned Magistrate erred in law in failing to impose on each of the respondents the full mandatory penalty provided by s 222 of the Fish Resources Management Act, the error contended for being that the learned Magistrate found the respondents to be "joint offenders" for the purposes of s 55(1) of the Sentencing Act.
The facts
Each of the respondents was charged that on 27 May 1998 at Parry's Beach Denmark they, being jointly in possession of 174 greenlip abalone (haliotis laevigata) in excess of the prescribed possession limit, were in breach of the provisions of s 51(2) of the Fish Resources Management Act. Section 51(1) of that Act provides that regulations may specify the maximum quantity of fish of a specified class that a person may have in possession in specified circumstances ("the possession limit") and s 51(2) makes it an offence to have in possession in any such circumstances more than the possession limit of those fish. The penalties for commission of such an offence are contained in s 52 of the Act, there being a general penalty for contravention of s 51, which in this case was a fine not exceeding $5000 in relation to each of the respondents. The provisions of s 222 of the Act provide that for an offence against s 51 (and various other sections) a court convicting a person must in addition to any general penalty imposed in respect of the offence impose on the person an additional penalty equal to 10 times the prescribed value of any fish the subject of the offence.
It is well established that in the absence of statutory authority for an apportionment of such a mandatory additional penalty, each of the respondents was liable for the full amount of that additional mandatory penalty. This was so held in Samuels v Ebert [1970] SASR 103 where Chamberlain J (at 106) said in relation to the equivalent provision in the Fisheries Act 1917-1962 (SA):
"Section 56 as amended is not designed to provide compensation, it imposes a penalty which is partly fixed according to the number of fish of prescribed description involved in the offence. Every party to the offence whether charged jointly or separately is guilty of the offence, and liable to the prescribed penalty. The position is no different from that which would arise if several defendants were convicted of a joint offence of shop-breaking and larceny. The penalty may have appeared harsh to the Magistrate, but it is the one prescribed, no doubt for the purpose of protecting the industry in which the respondents were engaged, by the legislature, and the courts have no right to question its propriety."
In the present case the respondents between them had possession of 174 abalone in excess of the prescribed possession limit. The consequence was that under the provisions of s 222 of the Fish Resources Management Act the mandatory additional penalty was $34,800 (174 x $20 x 10 = $34,800). This amount the learned Magistrate decided to apportion equally between the two respondents, purporting to rely upon the provisions of s 55(1) of the Sentencing Act 1995. The result was that each of the respondents was under the provisions of s 52 of the Fish Resources Management Act fined $500 by way of general penalty and pursuant to the provisions of s 222 of the Act fined $17,400 by way of mandatory additional penalty. I should add that I have no difficulty in categorising the additional penalty as a fine for the purposes of the Sentencing Act.
The case against the respondents at trial was that on 27 May 1998 at Parry's Beach Denmark they had fished for abalone by diving from a vessel, and having brought the abalone back to their vessel had processed the catch, placing a mass of shucked abalone in a bag. The case was fully defended, but the learned Magistrate convicted the respondents, finding it to be established beyond doubt that the respondents were co-operating with each other in the taking of abalone and in the processing of abalone in the boat, and by doing so were in possession jointly of the abalone. The learned Magistrate found there to have been a total of 174 abalone in excess of the prescribed possession limit.
Decision of the Magistrate
After imposing the general penalty under the provisions of s 52 of the Fish Resources Management Act the learned Magistrate considered the question whether the additional penalty under s 222 of the Act could be the subject of apportionment between the two respondents. The conclusion reached by His Worship was that it could, for the following reasons:
"…the first issue that I have to resolve finally, is the issue - - the issue of apportionment. In my view, there is a legal relationship between them, demonstrated by the fact that each caught abalone, each took abalone, going from the - - the evidence of the two bags coming aboard. That there was a shucking process and that all of the abalone were shucked into one bag, indicating a common intention that the proceeds - - that the proceeds of the activity be shared. And I'll accept on that basis that there was ‑ - and in any event there was the evidence of Grayson of the intention to share.
And I accept that there was - - so, that we have in effect joint property. That is the legal relationship in my view, the required under section 222 to trigger the apportionment of penalty. So, as to the additional penalty, which is mandatory each is fined $17,500."
The figure of $17,500 was later amended to $17,400 when the error was pointed out to the learned Magistrate.
The only basis upon which the additional penalty could have been apportioned was by the application of the provisions of s 55 of the Sentencing Act. That section is in the following terms:
"55. (1) If a court sentencing 2 or more joint offenders decides to fine them it may apportion between them as it thinks fit the fine it would have imposed if there were only one offender.
(2) If the statutory penalty for the offence is a mandatory fine or includes a minimum fine, a court apportioning a fine under subsection (1) must apportion at least the mandatory fine or the minimum fine, as the case requires.
(3) In this section-
"joint offenders" means persons who are each convicted of an offence because a legal relationship between them (such as being co-owners of property) results in each of them being criminally responsible for the act or omission constituting the offence."
The question before the learned Magistrate was whether the respondents in this case could be categorised as "joint offenders" within the meaning of s 55 of the Sentencing Act. That could only be so if they were "each convicted of (the) offence because a legal relationship between them … resulted in each of them being criminally responsible for the act … constituting the offence". Here the learned Magistrate found that there was a legal relationship between the respondents because they had joint property in the abalone.
However, it is argued for the appellant that the learned Magistrate misunderstood the provisions of s 55 of the Sentencing Act in that he failed to consider whether the legal relationship between the respondents resulted in each of the respondents being criminally responsible for the act which constituted the offence. The appellant's submission was that had the learned Magistrate considered this issue he must inevitably have found the legal relationship between the respondents did not result in each of them being criminally responsible, because (a) the joint proprietary relationship arose only contemporaneously with the possession and therefore the commission of the offence; (b) unless the relationship existed prior to the commission of the offence it could not logically be said that the relationship resulted in the respondents each being liable; (c) the offence committed by the respondents was committed by having possession of not property in the relevant fish; (d) joint possession is clearly not a formal legal relationship between two parties to which s 55 of the Sentencing Act refers; (e) in the instant case it was the joint possession of the fish, not the joint property in the fish, which resulted in both respondents being convicted.
Counsel for the appellant made reference to the provisions of s 166A of the Justice Act 1902, a section inserted into that Act in 1967, but subsequently repealed following the coming into operation of the Sentencing Act. Section 166A of the Justice Act 1902 would appear to be the precursor of s 55 of the Sentencing Act, its provisions being as follows:
166A. (1) Where 2 or more persons are charged with, and are severally convicted of, a simple offence of such a nature that the offence might not, in the peculiar circumstances of the case, have been committed by one of those persons without being committed by the other or others of them, then, if the offence is punishable by a fine, the justices convicting them may apportion among those persons, either equally or in such other proportions as the justices think fit, the fine that they might have imposed on one of them, had he been the only person convicted of the offence.
(2) Where the offence mentioned in subsection (1) is an offence for which a minimum fine, irreducible in mitigation, is provided, that provision is satisfied by the apportionment, pursuant to this section, of not less than the minimum fine among the persons convicted.
In Lloyd v Lowth, unreported; SCt of WA; Library No 930539; 22 September 1993 Murray J dealt with the effect of the provisions of s 166A of the Justices Act, expressing the following view (at 6):
"The purport of the provision is clear. Where, in a case such as this, there are two defendants before the Court who are prosecuted because they are partners in a business and therefore jointly and separately occupiers of the particular premises, the court is really empowered to consider them as being in substance the one defendant. Whilst they must of course be separately dealt with and separately punished, proper regard will be paid to ordinary sentencing principles if the two persons are considered as one legal entity and the proper sentence arrived at upon that basis, it then being apportioned between them."
The provisions of s 55 of the Sentencing Act clearly mirror the provisions of s 166A of the Justice Act, and the observations of Murray J to which I have referred, are clearly applicable to the provisions of s 55 of the Sentencing Act. In my view the section is intended to apply in just such circumstances, where there are two defendants before the court who are prosecuted because they are partners or because of some other legal relationship between them (such as being co-owners of property) and the result is that each is criminally responsible, although "in substance the one defendant". That clearly was not the case here. Each of the respondents was a defendant in his own right. Each had fished for abalone, and by being in joint possession of 174 abalone more than the prescribed possession limit, each was a principal offender. Neither was convicted "because a legal relationship between them … resulted in each of them being criminally responsible for the act constituting the offence".
Although it was argued for the respondents both below and before me that there was a legal relationship between them in the sense that they shared the overheads of the boat from which they were fishing and the expenses of the fishing gear etc, this did not in my view constitute a legal relationship which resulted in each of them being criminally responsible for the act for which they were convicted. Whatever legal relationship there might have been between them in terms of the fishing enterprise, it was not that legal relationship which brought about their conviction. To the contrary, it was the offence of each being in possession of the subject abalone which brought about their respective convictions.
It follows that in my view the learned Magistrate erred in concluding that under the provisions of s 55 of the Sentencing Act he was empowered to apportion the additional penalty prescribed by the provisions of s 222 of the Fish Resources Management Act. That was a mandatory penalty and as I explained to the respondents at the hearing of the appeal, the learned Magistrate had no right to question its propriety. Nor did it matter that to the learned Magistrate it may have appeared harsh that each of the respondents should bear the full amount of the additional penalty so prescribed: Samuels v Ebert (supra).
Having reached this conclusion, the following orders must be made:
1.The appeal be allowed.
2.The decision of the learned Magistrate to apportion the additional penalty of $34,800 between the respondents be set aside.
3.In lieu of the sum of $17,400 imposed by way of additional penalty upon each of the respondents there be substituted the sum of $34,800.
I was informed at the hearing of the appeal that it was something of a test case. Magistrates are apparently looking for some guidance as to the proper interpretation of the provisions of s 55 of the Sentencing Act. Because it is a test case, I consider it would be inappropriate to make any order for costs in favour of the appellant and in the exercise of my discretion I decline to do so.
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