Blake v Richardson; Lewtas v Richardson

[2000] TASSC 15

[2000] TASSC 15

CITATION:           Blake v Richardson; Lewtas v Richardson [2000] TASSC 15

PARTIES:  BLAKE, Lillian Joyce
  v
  RICHARDSON, Roger

LEWTAS, Nancy Mary

v
  RICHARDSON, Roger

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 12/1999

LCA 13/1999

DELIVERED ON:  2 March 2000
DELIVERED AT:  Launceston
HEARING DATE/S:  28 February 2000
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Primary Industry - Fish - Offences - Other cases - Special penalty for offence relating to possession of fish greater than prescribed maximum to be determined by number in excess not total number.

Living Marine Resources Management Act 1995 (Tas), s267(1).
Fisheries (Rock Lobster) Rules1997 (Tas), r13(2)(a), (b),(c), (d).
Aust Dig Primary Industry [35]

REPRESENTATION:

Counsel:
           Appellant:  C M Robinson
           Respondent:  M A Stoddart
Solicitors:
           Appellant:  G A Richardson
           Respondent:  Director Public Prosecutions

Judgment ID Number:  [2000] TASSC 15
Number of paragraphs:  8

Serial No 15/2000

File No LCA 12/1999

LCA 13/1999

LILLIAN JOYCE BLAKE v ROGER RICHARDSON

NANCY MARY LEWTAS v ROGER RICHARDSON

REASONS FOR JUDGMENT  COX CJ
(DELIVERED ORALLY)  2 March 2000

1. The applicants were each convicted of an offence against the Fisheries (Rock Lobster) Rules 1997, r13(2), which relevantly provides, "a person must not have possession of more than five rock lobster unless the person (a) has a receipt verifying the purchase of those rock lobster" or (b) …,
   (c) … or (d) …, which I need not read out for present purposes.  The applicant, Blake, was found in possession of more than five rock lobster, namely 13 such lobster, without a receipt verifying the purchase of those rock lobster and without any of the other conditions set out in pars(b), (c) and (d) applying.  The applicant, Lewtas, was found in possession of more than five rock lobster, namely seven such lobster, without a receipt and without those other conditions applying.

1. The Living Marine Resources Management Act 1995, s267(1), provides:

"On a finding of guilt for an offence under this Act or regulations or rules made under this Act relating to the taking or possession of fish, a Court must impose a special penalty equal to 10 times the value of the fish." 

1. The quantum of the special penalty in respect of rock lobster is $250 per fish.  The learned magistrate imposed that special penalty in respect of the applicant, Blake, by multiplying that sum by the total number of fish in her possession, namely 13, and in respect of the applicant, Lewtas, by multiplying that sum by seven.  Each contends that the proper multiplier is not the total number of fish in her possession but the number which exceed five, namely eight and two, respectively.

1. The special penalty is imposed in respect of "the fish" in respect of which a finding of guilt for an offence has been made. Possession of up to five fish is not prohibited by r13(2). The offence is only committed if the defendant has in his or her possession more than five such fish. While in one sense the possession of the six (or more) fish is rendered an offence, it is the possession of the excess over five which the subrule is designed to discourage and is the real vice aimed at.

1. Paragraph (a) of the subrule provides that possession of more than five lobster will be excused if the person in possession of them "has a receipt verifying the purchase of those rock lobster".  I cannot imagine that the draftsman of that paragraph would have contemplated that if a person was in possession of six lobster but only produced a receipt for the purchase of one of them, the other five having come into his possession without breach of the rule, that an offence would nonetheless have been committed.  "Those rock lobster" referred to in par(a) clearly refer, in my opinion, to those in excess of five.

1. I am therefore of the view that the fish in respect of which a finding of guilt for an offence under the subrule has been made is the excess over five and that the special penalty should be a sum multiplied by the excess over five in the possession of each applicant.

1. I find support for this view in the decision of the Full Court in Lloyd v Snooks [1999] TASSC 117 where it was accepted that a special penalty in respect of an offence against the Sea Fisheries Regulations 1962, reg44(1)(o), of taking more than 10 abalone in any one day, required the deduction of 10 abalone from the total taken in calculating its quantum.  Though the special penalty regulation, reg44(5A), is slightly differently expressed, the aim is clearly to attach a penalty only to the number of fish in respect of which an offence is committed and not to the fish the taking or possession of which is not in itself unlawful. 

1. The appeals will be upheld and the special penalties reduced in each case by the sum of $1,250.