Allen v Tamaru; Tamaru v Allen

[1990] TASSC 141

Serial No B64/1990
List "B"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Allen v Tamaru; Tamaru v Allen [1990] TASSC 141; B64/1990

PARTIES:  ALLEN, Wayne Maurice
  v

TAMARU, Hoji

TAMARU, Hoji
  v
  ALLEN, Wayne Maurice

FILE NO/S:  LCA 57/1990

LCA 64/1990

DELIVERED ON:  28 September 1990
JUDGMENT OF:  Wright J

Judgment Number:  B64/1990
Number of paragraphs:  15

Serial No B64/1990
List "B"
File Nos LCA 56/1990

LCA 64/1990

WAYNE MAURICE ALLEN v HOJI TAMARU
HOJI TAMARU v WAYNE MAURICE ALLEN

REASONS FOR JUDGMENT  WRIGHT J

(Given Orally)  28 September 1990

1. There are two Motions to Review for me to consider.

1. In the matter of Allen v Tamaru it is contended that penalties imposed in the Court of Petty Sessions at Hobart on 16 July this year were manifestly inadequate.

1. In the motion of Tamaru v Allen, it is maintained that the self–same penalties were manifestly excessive.

1. Tamaru pleaded guilty to five charges under the Commonwealth Fisheries Act 1952. Briefly stated, these charges were as follows:

1That on 28 February at Fremantle in Western Australia he falsely stated to an authorised officer that there were 43 tonnes of fish on board his vessel "Koyo Maru No 1" when in fact there were 98.455 tonnes on board.

2That he, on the same day, made a written report to the same effect knowing it to be false.

3That between the 13 and 23 June of this year, he failed to maintain a daily AFZ Catch Record of tuna caught by his boat between those dates.

4That on 27 June at Hobart he falsely stated to an authorised officer that there were 78.79 tonnes of fish on board his vessel when in fact there were 156.898 tonnes of fish on board.

5That on the same day he made a written report to the same effect knowing it to be false.

1. In respect of these matters, the learned magistrate recorded a conviction on each charge, and he made an order that Tamaru not be on a boat in Australian waters for the purposes of fishing for a period of two years from that date. He also ordered Tamaru to pay costs, but he declined to order forfeiture of those fish which had not been declared by the defendant and which were referred to in charge No 3. The value of those fish was in the vicinity of $57,296.00.

1. The learned magistrate reviewed the evidence before him, and he gave full consideration to the sentencing principles that he should apply. Mr Mellick suggested that he made an error as to one factual matter, but I have considered that and I am not persuaded by what Mr Mellick says that this was really an error. In any event, however, it was not a matter upon which the learned magistrate placed any substantial weight. Neither counsel submitted that there were any other specific errors of fact, nor that there were any errors of law made by the learned magistrate.

1. I find it unnecessary to review the facts of the case in detail. The learned magistrate appears to have accepted the defendant's explanation for his conduct as tendered by his counsel, Mr Thompson, that is, that he falsely reported his catch to enable him to keep his presence in richly productive fishing waters from his commercial competitors.

1. The learned magistrate placed no reliance upon the more obvious motive that certainly suggested itself to me, that is, that the defendant would, by the deception that he practiced, be able to exceed his quota of tuna to his great financial profit if he chose to do so once his limit had been reached.

1. However, the learned magistrate's acceptance of the proffered explanation was not attacked at this hearing, and I regard myself as obliged to accept his implicit finding that the explanation given by Mr Thompson was the true purpose behind his client's conduct on those occasions. Nonetheless, it is plain that such conduct has the clear tendency to undermine conservation measures being undertaken by Australian, New Zealand and Japanese governments at the present time. There is no need for me to dwell upon the great importance of these measures and the reasons for imposing condign punishment upon those fishermen whose conduct threatens the survival of the tuna fishing industry.

1. Many of the cases in which these matters have been referred to and discussed were most usefully discussed by Wood J in his decision in The Queen v Kakaru and Sato in New South Wales on 21 September of this year. I respectfully agree with the views therein expressed by his Honour, and indeed with the theme common to those authorities to which he referred, namely that in the case of a deliberate offence, particularly one involving unlawful behaviour over a significant period of time, there is a clear need to impose a generally deterrent penalty upon the offender. This principle was indeed acknowledged by the learned sentencing magistrate in the present case, and he said this at p39:

"Not only has the defendant, as I see it, for purely selfish purposes, been uncaring as to the need to preserve this most precious resource of Australian waters, and he is therefore deserving of the most appropriate punishment I have no doubt, that this is a matter in which the generally deterrent aspect of judicial punishment is of somewhat greater significance than might normally be the case. The punishment I impose on this defendant must make it clear to all fishing boat masters, whether they be Japanese, Australian, New Zealand or from where ever, what punishment they can expect if they conduct themselves as this defendant has done, which is to the detriment and the right of Australia to monitor its own resources."

1. Unfortunately, in my opinion, having correctly stated the proper approach in this way, his Worship then proceeded to impose penalties which were devoid of any generally deterrent value because they failed to incorporate any direct impact upon the defendant's financial resources. I think Mr Mellick is correct when he submits that the absence of complicity by the owners of a fishing vessel in an offence of this kind is no reason for declining to order forfeiture of the vessel and its equipment in an appropriate case.

1. In the present case, the prosecution did not seek forfeiture of the vessel or its equipment, but it does now complain about the lack of any substantial fine having been imposed. It is also argued, with considerable merit I must say, that as the learned magistrate did not order forfeiture of the catch, and as the vessel with its catch intact has now returned to Japan, or at least, has departed from

1. Australian waters, it is of even greater importance that it should be seen that a substantial monetary penalty has been imposed upon the offender. This is a view with which I agree, and consequently I think that the Motion to Review brought by Allen should be allowed, and that brought by Tamaru should be dismissed.

1. In my opinion, the order that Tamaru not be on board a boat in Australian waters for the purpose of fishing for a period of two years from 16 July of this year should be affirmed. If I had been dealing with the matter at a time when a forfeiture order could have been given effect to, I would have made such an order in respect of the $57,296.00 worth of fish already mentioned as well as imposing substantial monetary fines. I should say in this connection that I am not impressed by the suggestion that this process would have inevitably caused damage to the balance of the ship's catch. However, as that course cannot now be taken, it is, I think, appropriate and indeed inevitable to reinforce what I have said as to general deterrence by increasing the level of the individual fines which should be imposed upon Tamaru.

1. I therefore propose to impose fines of $3,500.00 in respect of each of the five charges, that is a total overall of $17,500.00. Tamaru will also be ordered to pay Allen's costs of both Motions to Review.