Brinkman v Dix (No 2)
[1999] TASSC 65
•4 June 1999
[1999] TASSC 65
CITATION: Brinkman v Dix (No 2) [1999] TASSC 65
PARTIES: BRINKMAN, Norman
v
DIX, Martin Steven (No 2)
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 76/1997
DELIVERED ON: 4 June 1999
DELIVERED AT: Hobart
HEARING DATES: 20 April, 31 May 1999 (written submissions)
JUDGMENT OF: Underwood J
CATCHWORDS:
Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Other matters - Tasmania - Presenting a document that was false in a material particular - Fish receiver and processor - Gross understatement of weight of orange roughy received - Factors relevant to sentence.
Fisheries Management Act 1991 (Tas), s107.
Aust Dig Criminal Law [911]
Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Appeal by convicted persons - Powers of Appellate Court - Whether evidence of events that occurred after imposition of sentence can be received upon a review - Principles applicable to reception of such evidence.
R v Stanley (1997) 7 Tas R 357, applied.
R v Araya & Joannes (1992) 63 A Crim R 123; R v Smith (1987) 44 SASR 587, followed.
Aust Dig Criminal Law [1008]
REPRESENTATION:
Counsel:
Applicant: N Cleland
Respondent: B Walters and J Read
Solicitors:
Applicant: Simmons Wolfhagen
Respondent: Australian Government Solicitor
Judgment Number: [1999] TASSC 65
Number of Paragraphs: 65
Serial No 65/1999
File No LCA 76/1997
NORMAN BRINKMAN v MARTIN STEVEN DIX (NO 2)
REASONS FOR JUDGMENT UNDERWOOD J
4 June 1999
Introduction
This litigation has a long and tortuous history which, in large measure, is of the applicant's own making.
The applicant was a director of a fish processing company called Fishpak Pty Ltd. On 21 July 1997, both the applicant and the company were convicted in a court of petty sessions of two breaches of the Fisheries Management Act 1991, s107, which provides:
"107 A person must not knowingly present a document, make a statement or give a return or information, that is false or misleading in a material particular, to AFMA or another person performing duties under this Act or the regulations.
Penalty: Imprisonment for 12 months."
The offences were committed by the applicant. Fishpak Pty Ltd was vicariously liable for the applicant's unlawful acts by virtue of the provisions of the Fisheries Management Act, s164.
A short history of this litigation
The relevant events occurred as long ago as 12 and 13 August 1993. Almost two years passed before the complaints were laid. During the following year, there were several formal appearances in the Hobart Court of Petty Sessions.
· On 8 October 1996, the learned magistrate who finally heard and determined the complaints, ruled that he would hear the complaints against the applicant and his company together.
· The same day the applicant applied to this Court for an order nisi for a writ of prohibition prohibiting a joint hearing of the complaints against the applicant and Fishpak Pty Ltd.
· On 9 October 1996 an order nisi was made.
· On 5 November 1996 the order nisi was discharged (A71/1996).
· On 25 November 1996 the applicant filed a notice of appeal to the Full Court.
· On 12 May 1997 the Full Court dismissed the appeal (A48/1997).
· On 30 May 1997 the learned magistrate resumed the hearing. It occupied nine separate days over about two months.
· On 21 July 1997 the learned magistrate convicted the applicant and Fishpak Pty Ltd each on two matters of complaint.
· On 24 July 1997 a motion to review the orders of conviction was filed in this Court.
· On 28 July 1997 the sentencing hearing began before the learned magistrate. It occupied three separate days and concluded on 11 August 1997.
· On 12 August 1997 the learned magistrate imposed sentence upon the applicant and his company.
· On 19 August 1997 a motion to review the orders of sentence imposed on the applicant was filed in this Court.
· On 9 October 1997 both motions to review came on for hearing before me. Submissions occupied four consecutive days.
· On 14 November 1997 orders were made dismissing the appeals against conviction, and allowing the applicant's appeal against his sentence (A134/1997).
· On 5 December 1997 the applicant appealed to the Full Court against the order dismissing the motions to review the convictions. At the same time, the respondent appealed to the Full Court against the order allowing the motion to review the applicant's sentence.
· On 1 and 2 June 1998 the appeals were heard by the Full Court.
· On 2 November 1998 the Full Court ordered that the applicant's appeal be dismissed but that the respondent's appeal be allowed (A135/1998) and, for reasons which will become apparent shortly, ordered that the further determination of the applicant's motion to review the sentences imposed by the learned magistrate be remitted to me for further determination.
· On 20 April 1999 the further determination of the applicant's motion to review sentence came on for hearing before me as directed by the order of the Full Court.
· On 30 May 1999 the hearing resumed by way of written submissions lodged in response to matters raised by me.
Some basic facts
In August 1993, the management of the orange roughy fishery was vested in the Australian Fisheries Management Authority ("AFMA"). It had statutory authority to grant permits to catch orange roughy and to impose quotas on those permits in order to control the quantity of orange roughy taken from the sea. In addition, AFMA was authorised to, and did, impose a condition on fishing permits to the effect that the fisher must complete a catch disposal record in accordance with the instructions given on the official form and lodge it with AFMA. In this way, AFMA gathered important statistical information to assist it discharge its statutory duty to properly manage the orange roughy fishery. To facilitate this process, a book of forms was issued to each fishing boat. This case concerns two such fishing boats, the "Saxon Onward" and the "Moira Elizabeth". In the case of both boats, the permit to catch orange roughy was held by Saxon Fishing Co Pty Ltd. It authorised the taking of a specified quota of orange roughy from an area known as the south-east fishery (SEF2).
In August 1993, the legislation imposed no obligation upon a fish processor to supply any information to AFMA with respect to orange roughy that it received from the fishers. Notwithstanding this, the SEF2 book of forms was printed in quadruplicate. The instructions provided that the permit holder must complete the top copy and the receiver of fish (the applicant and his company) must complete the pink copy and send it to AFMA. Although not statutorily obliged to do so, the applicant completed the pink copy of the of the SEF2 forms for catches received from the "Saxon Onward" and the "Moira Elizabeth" on 12 and 13 August 1993. The case against the applicant in the court below was that on the pink AFMA forms that he sent to the authority, he very substantially understated the weight of orange roughy that he received on 12 and 13 August 1993. In result, he was convicted of two counts of presenting a document to AFMA that was false or misleading in a material particular.
To set the scene in a little more detail I set out the following extract from my reasons for judgment in Brinkman & Anor v Dix 134/1997.
"In broad summary, the prosecution case concerned the unloading of Orange Roughy from two fishing vessels, the '"Saxon Onward"' and the '"Moira Elizabeth"', on 12 and 13 August 1993. The unloading operation was recorded by covert video surveillance. Fishpak Pty Ltd is a fish processor. The applicant took part in the unloading. The applicant made some entries on a form known as an 'SEF2 form'. SEF is an acronym for South-East Fishery. In the case of each unloading, the prosecution claimed that the applicant understated the weight of Orange Roughy by the amounts set forth in the complaints. In the court below evidence was given by an expert witness who said that he had looked at the video film and, in his opinion, the fish unloaded were Orange Roughy if they had been caught in the waters of Tasmania. Much of the video evidence was concerned with establishing the actual weight of fish unloaded. Evidence was given of the weight of the bins and boxes into which the fish were unloaded when those bins and boxes were full of fish, and a process of counting the boxes and bins shown on the video established the actual weight of the fish unloaded from the two vessels. Upon the hearing of the motion to review, Mr Porter QC, for the applicant, made no challenge to the findings of the learned magistrate that the total weight of fish unloaded from the '"Saxon Onward"' was 26,400 kilograms and from the '"Moira Elizabeth"', 27,200 kilograms."
On the pink SEF2 forms which the applicant completed and sent to AFMA, he stated that the weight of orange roughy received by him from the "Saxon Onward" and the "Moira Elizabeth" was 12,672 kilograms and 24,152 kilograms respectively. This was an understatement in the order of 16,776 kilograms.
On 12 August 1997, the learned magistrate fined Fishpak Pty Ltd $25,000 and $15,000 upon complaint No 37560/95 and complaint No 37559/95 respectively. There has been no motion to review these penalties. With respect to the applicant, the learned magistrate imposed a sentence of three months' imprisonment upon each complaint and ordered that each sentence be served concurrently with the other.
The grounds of the notice of motion to review sentence
As amended, the notice of motion to review the two sentences of three months' imprisonment contains seven grounds. Upon the hearing of the motion, a further ground was added, viz:
"8 There is manifest disparity between the sentence imposed on the Applicant and that of two months' suspended imprisonment which was imposed by M A Hill Esq Magistrate on David Wakefield who was the skipper of the "Saxon Onward"."
In my reasons for judgment delivered on 14 November 1997, I upheld ground 8 and said, "[t]here is no need to consider any of the other grounds for a review of sentence. Success of any one or more of those grounds will only result in the same order that will be made as a result of the success of ground 8".
Accordingly, I allowed the motions to review the orders of sentence imposed upon the applicant and set the sentences aside. In lieu thereof, I reimposed a sentence of three months' imprisonment upon each complaint and made a further order that the applicant be released forthwith upon him entering into a recognizance in the sum of $2,000, subject to the following conditions:
1 that he be of good behaviour for two years; and
2 that he commit no offences under the Fisheries Management Act or similar legislation in that time.
By a majority, the Full Court held that error occurred in making the order allowing the motion to review sentences on the basis set out in ground 8 of the motion to review. As I had not embarked upon a consideration of the remaining seven grounds of the notice of motion to review sentence, the Full Court ordered that the motion to review be remitted to me "for determination of all grounds of appeal other than ground 8." In so doing, the learned Chief Justice observed, "[a]s the learned primary judge heard all the arguments on those grounds on the hearing of the notice to review, it is more convenient and likely to more rapidly achieve finality that the former course should be adopted." In the events that have occurred, I am far from certain that his Honour's prophetic words have been realised.
However, the foregoing sets out the circumstances which give rise to the requirement that I now determine grounds 1 - 7 inclusive of the applicant's motion to review the two sentences of three months' imprisonment ordered on 12 August 1997. Those remaining grounds are:
"1 The magistrate erred in fact in that there was no evidence upon which the magistrate could have been satisfied beyond reasonable doubt that the applicant would have made a financial gain from the offences.
2 The magistrate erred in fact and in law in holding that the delay in investigating and prosecuting the offences was not a mitigating factor.
3 The magistrate erred in law in that prior to passing a sentence of imprisonment he failed to:-
(a)consider all other available sentences;
(b)satisfy himself that no other sentence was appropriate;
(c)state reasons for the decision that no other sentence was appropriate contrary to the Crimes Act 1914, s 17A.
4 The magistrate erred in law in that he directed himself that a custodial sentence was not appropriate for the applicant, if he was satisfied that AFMA was to cancel the fishing permit of Fishpak Pty Ltd.
5 The magistrate erred in that he found the evidence did not support the inference that AFMA would act to cancel the fishing permit of Fishpak Pty Ltd.
6 The magistrate erred in law in that he failed to give sufficient weight to the character and antecedents of the applicant.
7 The sentence was manifestly excessive in all of the circumstances."
Ground 1
"1 The magistrate erred in fact in that there was no evidence upon which the magistrate could have been satisfied beyond reasonable doubt that the applicant would have made a financial gain from the offences.
At the sentencing hearing before the learned magistrate, counsel for the complainant handed up written submissions. In them, it was submitted that "Fishpak and therefore Brinkman, must have gained financially from the under declaration". In the same submission, the learned magistrate was told that "[t]he payment for 16 tonnes of Orange Roughy in 1993 from the processor would have been in the order of $48,000 at the normal rate payable".
In his comments on passing sentence, the learned magistrate referred to these submissions and said:
"With these submissions, I am able to accept only that there was financial advantage for both defendants Brinkman and Fishpak in the commission of these offences and that in addition, Brinkman gained from the financial advantage gained by Seafare Australia in which he soon after acquired a proprietary interest by the under declaration of the consignments of the 12th and 13th August. It is not possible to specify the type of quantum [sic] of financial gain. There is no evidence anywhere in the case of the price paid or the discount received by Fishpak Pty Ltd for or in respect of the fish not declared. The fisher and the processor certified the same false figure and I agree that the only conclusion reasonably open is that they agreed to do so in order to deceive AFMA."
It is necessary to refer to some of the evidence and submissions in order to put the learned magistrate's observations into context and to understand the basis for the impugned finding:
· At the time of the commission of the offences:
The applicant was the manager of the fish processor, Fishpak Pty Ltd, and he and his wife were its sole shareholders and directors.
The permit to catch orange roughy was held by a company called Saxon Fishing Co Pty Ltd.
Saxon Fishing Co Pty Ltd operated the two vessels from which the orange roughy was unloaded, the "Saxon Onward" and the "Moira Elizabeth". This company was then in receivership.
· The skipper of the "Saxon Onward" was David Robert Wakefield. He pleaded guilty to a charge identical to that in respect of which the applicant was found guilty relating to the under statement of the weight of the fish taken from the "Saxon Onward".
· An inescapable inference from the foregoing is that the applicant and Mr Wakefield agreed that both would understate by the same amount the weight of fish unloaded from the "Saxon Onward".
· The receivers of the Saxon Fishing Co Pty Ltd, accountants in New South Wales, had appointed another company called Seafare Australia Pty Ltd to carry on the fishing business of the Saxon Fishing Co Pty Ltd (in receivership).
· The receivers were the persons lawfully entitled to the value of the whole of the catch unloaded from the "Saxon Onward" and the "Moira Elizabeth".
· The person employed by the receivers to look after their interests was the co-offender, David Wakefield, who was also a director of Seafare Australia Pty Ltd.
· At the time of the commission of these offences, negotiations were afoot between the receivers of Saxon Fishing Co Pty Ltd and Seafare Australia Pty Ltd for the latter to purchase from the receiver of the former the former's assets including the orange roughy permits. The finance for this deal was being underwritten by the applicant.
· The day before the commission of the first offence, agents for the receivers wrote to AFMA asking it to transfer the fishing permits for both vessels to "Seafare Australia Pty Limited". The letter advised AFMA that completion of the sale of various assets of Saxon Fishing Co Pty Ltd was dependent on the written approval of these transfers by AFMA and asked that the matter be attended to urgently.
· The transfers were effected and the new permits issued on 19 August 1993, seven days after the commission of the second offence.
· The following day the applicant became a director of Seafare Australia Pty Ltd.
· There was no evidence of the applicant's shareholding in Seafare Australia Pty Ltd.
At the sentencing hearing before the learned magistrate, in addition to the written submissions, the prosecutor submitted the following:
"We wish to address the question of gain. We submit that Fishpak, and therefore Brinkman, must have gained financially from this under declaration. The gain would have involved payment for the fish, which were not declare to the Australian Fisheries Management Authority, at a lesser rate than otherwise applied, and also the non-payment of tax. In addition, Brinkman stood to gain from the gain of Seafare which did not have to declare to the receiver its gain and which also stood to gain from the non-payment of tax. Now this is not something within the knowledge of the prosecution, it's within the knowledge of the defence and, in our submission, that is a logical conclusion from the evidence before your Worship."
In his submissions, counsel for the applicant in the Magistrates' Court, submitted that proof of gain was an essential fact which had to be established beyond reasonable doubt and said:
"Now what is said in paragraph 18 is that they must have gained financially. Well, it is a question of what the evidence establishes. Now, the gain would have involved payment for the fish. Well, there is just no evidence about that and it's all very well for my learned friend to wave his hand gladly [sic] across the bar table and say 'the information is not in our possession, it's in their possession'. … There is no evidence as to any payment at all, so your Worship has no evidence about that. It is hard to see, given that Fishpak and Brinkman were buying the fish that non-payment of tax would be involved, although I suppose it may be said that it is a payment from which income is derived, but again your Worship is left to speculate about that."
His worship then intervened and said:
"Well isn't it obvious if both the fisher and the receiver don't accurately declare what is caught, they don't declare it to anybody yet are able to sell it."
Counsel for the applicant responded by repeating that there was no evidence about what was paid or what was not paid or about payment at any lesser sum. He submitted it was all speculation.
It seems to me to be an inescapable inference that the applicant's offence was committed for the financial gain of Fishpak Pty Ltd, and hence the applicant. No other motive for the applicant's and Mr Wakefield's joint deception of AFMA appears, even faintly, on the horizon in this matter. The facts that:
· those entitled to receive the sale price for the catch were accountants in New South Wales and not Mr Wakefield;
· when the offences were committed, negotiations were afoot for the company of which Mr Wakefield was a director and of which the applicant became a director shortly after the commission of the offences, to acquire the permit and quota from the receivers; and
· the applicant underwrote the cost of Seafare Australia Pty Ltd purchasing the assets or some of them from the receivers,
reinforces the inference that financial gain to the applicant and Mr Wakefield was the motive for the commission of the offence.
Pursuant to the Justices Rules, r36(3), the learned magistrate was entitled to receive statements from the Bar table as part of the material upon which sentence was passed. Counsel for the applicant in the court below did not invoke the provisions of that rule to state that the applicant made no financial gain from the commission of the crime. I accept that the onus is on the prosecution to establish the material adverse facts upon which sentence is to be imposed (Bresnehan v R (1992) 1 Tas R 234; R v Turnbull (1994) 4 Tas R 216) but absent evidence or assertion of no financial gain, the inference which was open to be drawn could all the more easily be drawn.
It is true, as the learned magistrate said, the evidence did not permit a finding to be made with respect to the quantum of the financial gain, but the finding "that there was financial advantage for both defendants Brinkman and Fishpak in the commission of these offences" was the only reasonable one to make in all the circumstances.
Whether or not it was open to make the finding that "Brinkman gained from the financial advantage gained by Seafare Australia Pty Ltd" is more difficult as all the circumstances of the applicant's relationship to that company were not spelled out. However, given his actual and potential relationship with Seafare Australia Pty Ltd at the time the offences were committed, a finding that Seafare Australia Pty Ltd suffered no financial harm by the applicant's unlawful acts was clearly open. The key finding in the sentencing process, and the one attacked by ground 1, was that the applicant made some unspecified financial gain from the commission of the offences and this was properly made on the material available to the learned sentencing magistrate. Whether some of that unspecified financial gain arose from the "financial advantage to Seafare Australia" was of no significance in the exercise of the sentencing process. Ground 1 is not made out.
Ground 2
"2 The magistrate erred in fact and in law in holding that the delay in investigating and prosecuting the offences was not a mitigating factor."
With respect to delay, the learned magistrate said:
"These offences are serious. They are difficult and expensive to detect and expensive to prosecute. Bringing the complaints to disposition has consumed much time and public resource but that had [sic] not involved dilatoriness, delay or staleness, and taking a comprehensive view of all factors contributing to the time elapsed since commission of the offences, I think it is of neutral effect."
First, in every case there is, necessarily, a delay between the commission of the offence and the imposition of sentence. That delay only has significance in the sentencing process when it can be categorised as undue in the circumstances of the case. See R v Idolo [1988] VICFC 57. Second, undue delay is not per se a mitigating factor. It may become a mitigating factor if it has caused unfairness to the offender. See R v Law (1995) 84 A Crim R 142. Such unfairness might be anxiety, insecurity of employment or housing, curtailment of liberty, and so on. See Duncan v R (1983) 9 A Crim R 354. Undue delay might also be relevant in the sentencing process if it appears that the offender has embarked upon his or her rehabilitation during that period. See Todd v R [1982] 2 NSWLR 517 at 519 - 520; Mill v R (1988) 166 CLR 59 at 64 - 66.
There was a period of almost two years between the commission of the offence and the laying of the complaints. Prima facie, this appears to be an unduly long period of time, but the learned magistrate found, and no challenge is made to the finding, that, "[b]ringing the complaints disposition has consumed much time and public resource but that had [not] involved dilatoriness, delay or staleness". As appears from the short history set out earlier in these reasons for judgment, delay in achieving finality of the proceedings in the court below, was, as I have observed, largely of the applicant's own making. Further, although counsel for the applicant in the court below referred to the period of four years between the commission of the offences and the imposition of sentence, he did not contend that such delay had been undue, nor did he advance any adverse consequence that had been suffered by the applicant as a result of that period of delay. He did refer to the applicant's good conduct during the four year period and there is no reason to believe that the learned magistrate did not take that into account in the imposition of sentence. I do not understand the learned magistrate to have held as a matter of law that delay (or its consequences) can never be a mitigatory factor. I understand him to have held that in the circumstances of this case the period of delay was not undue, nor due to the fault of the complainant or the prosecuting authority. Ground 2 is not made out.
Ground 3
"3 The magistrate erred in law in that prior to passing a sentence of imprisonment he failed to:-
(a)consider all other available sentences;
(b)satisfy himself that no other sentence was appropriate;
(c)state reasons for the decision that no other sentence was appropriate contrary to the Crimes Act 1914, s 17A."
There is no substance in this ground. In his submissions to me on the original hearing of the motion to review sentence, Mr Porter QC for the applicant, submitted that upon reading the learned magistrate's comments on passing sentence, there emerges "an assumption" that the applicant would go to prison "unless something occurred". I do not accept that proposition. Throughout his sentencing remarks, the learned magistrate adverted to a number of factors which, together, made it clear to him that the appropriate sentence was a sentence of imprisonment. This does not mean that the learned magistrate did not act in accordance with the Crimes Act 1914 (Cth), s17A which provides as follows:
"17A — (1) A court shall not pass a sentence of imprisonment on any person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.
(2) Where a court passes a sentence of imprisonment on a person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, the court:
(a) shall state the reasons for its decision that no other sentence is appropriate; and
(b) shall cause those reasons to be entered in the records of the court.
(3) The failure of a court to comply with the provisions of this section does not invalidate any sentence.
(4) This section applies subject to any contrary intention in the law creating the offence."
Simply to give reasons why a sentence of imprisonment is the appropriate penalty does not mean that there has been no consideration of all other available sentences and that the sentencer has not satisfied himself or herself that no other sentence is appropriate in all the circumstances of the case as is provided by subs(1). The articulation of reasons why a sentence of imprisonment is appropriate in the circumstances of the case often makes it abundantly clear that such a sentence is the only appropriate response. As was said in Petreski v Kargill (1988) 79 ALR 235 at 243, "[t]he important thing the section requires is the statement of reasons why the Court is satisfied that no sentence other than a sentence of imprisonment is appropriate" and this is often best done by articulating, as did the learned magistrate in this case, the important reasons for ordering imprisonment. See also Diner v Edwards A27/1995 at 5. I can do no better than adopt the following words from the judgment of Wright J in Dadson v O'Brien 75/1998 at 2:
"The court is, of course, required by s17A(1) to consider 'all other available sentences' in the course of coming to its conclusion that imprisonment is required, but it would be ludicrous to think that this may require the court to expressly mention and discard every conceivable mode of disposition other than imprisonment. What a farce would be created if the sentencing magistrate or judge were required to go through a check list of possible outcomes, such as discharge without conviction, conditional discharge with or without conviction, probation with or without special conditions or supervision, a fine, whether immediate or suspended and community service, and to discuss each and every one as an 'available sentence' before turning his attention to the appropriateness of imprisonment in every federal case. I am satisfied that such is not what Parliament had in mind when s17A was enacted.
The purpose of s17A is to reinforce that which has been received wisdom at common law for decades, viz, that imprisonment is the ultimate penal sanction which should be reserved for those cases in which some lesser punishment is inappropriate.
In my opinion, it would be a rare case in which s17A will afford a basis for impugning a sentence where it is plain that the sentencing judge or magistrate has taken account of all relevant matters and has justifiably concluded that either a suspended or immediate custodial sentence is required.
An example of such a case is to be found in Freeman v Pulford (1988) 92 FLR 199 where the sentence under appeal was imposed by a magistrate who considered himself bound by a superior court decision to impose a sentence of imprisonment in the circumstances. Consequently, he restricted his sentencing discretion and his decision was overturned. Kearney J held that by acting in this way, the magistrate had acted contrary to the express provisions of s17A(1)."
Ground 3 is not made out.
Grounds 4 and 5
"4 The magistrate erred in law in that he directed himself that a custodial sentence was not appropriate for the applicant, if he was satisfied that AFMA was to cancel the fishing permit of Fishpak Pty Ltd.
5 The magistrate erred in that he found the evidence did not support the inference that AFMA would act to cancel the fishing permit of Fishpak Pty Ltd."
In order to understand this ground, it is necessary to set out some more facts. At the time of the commission of this offence there was a statutory requirement that a fish receiver hold a permit (Fisheries Management Act, s91) but this requirement was not enforced by AFMA until 1995. In October that year regulations came into force that required the holder of a receiver's permit to submit returns of fish received to AFMA. Fishpak Pty Ltd accordingly then held such a permit.
In addition, according to the submissions put to the learned magistrate during the sentencing hearing, Fishpak Pty Ltd acquired a fishing permit after the commission of the offences. This permit related only to the "Saxon Onward" the ownership of which, it seems, had been transferred to Fishpak some time after the purchase of the assets of Saxon Fishing Co Pty Ltd by Seafare Australia Pty Ltd. Sometime during 1997, prior to the learned magistrate proceeding to conviction, an attempt was made to transfer this fishing permit to the applicant's mother. That application was refused by AFMA, no doubt because the prosecution against Fishpak was not then complete. Fishpak Pty Ltd sought a review of that decision in the Administrative Appeals Tribunal (Cth). No decision had been reached by the Tribunal at the time sentence was imposed.
With respect to both the fishing permit and the receiver's permit, the Fisheries Management Act conferred a power on AFMA to suspend or cancel one or both upon the conviction of the holder. At the commencement of the sentencing hearing, counsel for the applicant in the court below sought an adjournment of the proceedings until the motions to review convictions had been determined and until AFMA had made a decision whether to suspend or cancel one or both permits. The application was refused and the sentencing hearing proceeded to a conclusion.
Towards the end of the submissions made on behalf of the applicant and Fishpak Pty Ltd at the sentencing hearing, Mr Porter QC was successful in obtaining a short adjournment to enable him to obtain two documents from the Administrative Appeals Tribunal. Upon resumption of the sentencing hearing, these documents were tendered to the learned magistrate. One of them, a letter from the Australian Government Solicitor to AFMA, advised the authority against granting the transfer of the fishing permit to the applicant's mother upon the grounds that Fishpak's conviction would be a basis for cancelling the permit, and, if the transfer proceeded, it might result in an avoidance of any penalty by transfer of assets. The other document, described as a briefing note, advised that it would be difficult to cancel the fishing permit if it were transferred to the applicant's mother and, if the transfer was effected, it might result in Fishpak being left without sufficient assets to satisfy any penalty.
Mr Porter QC submitted that these documents clearly showed an intention on AFMA's part to cancel both permits in due course. He contended that such a course of action would have a devastating effect on Fishpak Pty Ltd which had been in operation since 1990 and, at the time of the sentencing hearing, had an annual turnover between $2m - $2.5m.
In response to Mr Porter's submission, junior counsel for the complainant in the court below, submitted that the learned magistrate should not proceed to sentence upon the basis that AFMA would cancel one or both permits because:
· the power to do so was under challenge by the applicant in the pending proceedings in the Administrative Appeals Tribunal upon the basis that the statutory power did not extend to permits that:
(a)were not held by the convicted person at the time of the commission of the offences; and/or
(b)did not relate to the offences in that, together, they related to two vessels and the permit related to only one of those two.
At the time of the submissions with respect to sentence, the Administrative Appeals Tribunal had yet to pronounce on the validity of these arguments. Junior counsel for the complainant told the learned magistrate that her advice to AFMA had been that in the event of conviction, "this permit" should be cancelled. She then said, "it's not however been the history with AFMA that they do cancel permits …", and added:
"… the reference in the review report of May 1997 refers to my advice that conviction would be grounds for AFMA to refuse to renew or cancel the permit. Well, that's my advice, but whether or not AFMA does that is another question altogether. Certainly, given the history and approach of AFMA with respect to these matters, I would first, be surprised if AFMA proceeded to cancel a receiver's permit. There is just nothing before the court that could indicate that Fishpak is going to lose its receiver's permit. Again, it will be subject to appeal to the AAT. Again, there's the possibility that either in relation to a particular case, or as a matter of principle, the court will decide that a receiver's permit or a boat permit cannot be cancelled if not the subject …[and she referred to the unresolved arguments]".
In his comments on passing sentence, the learned magistrate referred to the refusal of AFMA to transfer the fishing permit, the pending proceedings in the Administrative Appeals Tribunal and said:
"On Friday 8th August and Monday, 11th August ¾ yesterday ¾ reference was made to documents discovered in that litigation and on the latter day, two of those documents, a briefing note of 13th May 1997, and a review report, 16th May 1997, were submitted for my consideration. I was invited to infer from them that AFMA was intent upon cancelling Fishpak's permit. I feel unable to reach that inference with any confidence, although the concluding paragraph of the briefing note certainly founds the suggestion that it might or will. It is true, as Ms Read, junior counsel for the prosecution frankly stated, that AFMA has been advised to cancel the permit. Nonetheless, I am unable to find as a fact that it will do so. The highest at which I can put the matter is to surmise or suppose that it might. I am in a dilemma in not knowing the factor of Fishpak's fishing permit [sic] and think it is likely that if its cancellation could be predicted with certainty, an order for the immediate imprisonment of the defendant for which the prosecution contended, would not be made. One ought to hope, I think, that if such order were made, cancellation of the fishing permit would not be thought necessary."
In relation to ground 5, Mr Porter QC submitted to me that the learned magistrate erred in failing to find that it was more probable than not that AFMA would cancel one or both permits. I do not uphold that submission. The material put to the learned magistrate made it clear that the transfer of the permit to the applicant's mother was opposed on the basis that such transfer might enable Fishpak Pty Ltd to avoid payment of penalty and on the basis that transfer would deprive AFMA of the ability to cancel the permit upon Fishpak's conviction. With respect to cancellation, although junior counsel for the complainant had advised in favour of it, she made it quite clear that AFMA had not done so in previous similar cases, and whether it would do so in this case, was completely unknown. In these circumstances, it cannot be said that that the learned magistrate erred in failing to draw the inference that AFMA would cancel Fishpak's permit. His observations with respect to this matter were the only ones reasonably open. Ground 5 is not made out.
Similarly, ground 4 is not made out either. During the sentencing hearing before the learned magistrate, Mr Porter QC detailed the involvement of the applicant in the fishing industry and told the learned magistrate that in 1990 he left employment in that business to set up Fishpak Pty Ltd and to go into the business of fish processing on his own account through the corporate entity. Mr Porter QC told the learned magistrate:
"Fishpak Pty Ltd sits amongst a number of other companies and unit trusts which relate to the financial and taxation affairs of the Brinkman family, that's his wife and mother. Fishpak Pty Ltd is really the operating entity but it is also the trustee of other unit trusts and I don't need to give your Worship the gory details of all of that. But it is a not uncomplicated structure, but primarily, at least initially, Fishpak Pty Ltd was simply set up as a corporate entity to carry out the processing of fish."
At the end of his submissions in the court below, Mr Porter told the learned magistrate with respect to the possible cancellation of Fishpak's permits:
"It is highly likely that he is going to be seriously jeopardised in relation to his continuation in the industry, if not totally wiped out by AFMA's actions consequent upon these matters which of course, would be absolutely devastating to him."
In these circumstances it was perfectly proper for the learned magistrate to take into account the consequences of conviction of Fishpak Pty Ltd when sentencing the applicant. It was put to the learned magistrate that such consequences would, in all likelihood, have a serious effect on the applicant. After all, it must not be forgotten that Fishpak Pty Ltd was only convicted because of its vicarious liability for the actus reus of the applicant, who was described by Mr Porter QC as the alter ego of Fishpak Pty Ltd.
The learned magistrate expressed himself in a rather curious way when he said:
"I am in a dilemma in not knowing the fact of Fishpak's fishing permit [sic] and think it likely that if its cancellation could be predicted with certainty, an order for the immediate imprisonment of the defendant for which the prosecution contended, would not be made."
Having regard to the relevance of the consequences of Fishpak's conviction upon the sentence to be imposed on the applicant, no error as alleged in ground 5 can be detected in that statement. The curious expression of the learned magistrate is no more than an observation that the circumstances surrounding the commission of the offences and the known circumstances of the offender were such that an immediate custodial sentence was the appropriate penalty; but if other circumstances were established, viz, that the applicant would suffer additional punishment by reason of Fishpak losing its permits, this might have such an impact on the exercise of the sentencing discretion that some other penalty might be imposed. Understood in this light, I see no error in the conclusion of the learned magistrate in this respect. Similar observations could be made in virtually every exercise of the sentencing discretion, eg, if it were known that an offender would make good his or her promise never to offend again, a sentence of immediate imprisonment would not be made. Ground 4 of the motion to review is not made out.
Grounds 6 and 7
"6 The magistrate erred in law in that he failed to give sufficient weight to the character and antecedents of the applicant.
7 The sentence was manifestly excessive in all of the circumstances."
Ground 6 is merely a particular of ground 7. Before dealing with these grounds, it is necessary to advert to a preliminary matter. When the hearing before me resumed pursuant to the order of the Full Court, counsel for the applicant sought to tender, by way of affidavit, facts concerning events that had occurred since the making of the impugned orders of sentence. The tendering of this evidence was opposed by the respondent. The evidence, contained in an affidavit sworn by Mr David Morris, the applicant's solicitor, was received de bene esse. In the alternative to submitting that the evidence was inadmissible as irrelevant, senior counsel for the respondent, read, and I also received de bene esse, an affidavit sworn by Ms Read, junior counsel for the respondent. In summary, these affidavits established the following facts:
· In consideration of Fishpak Pty Ltd giving up 33,400 kilograms of the 1998 orange roughy quota attached to its fishing permit, AFMA consented to the transfer of Fishpak's fishing permit to the applicant's mother.
· 33,400 kilograms is virtually twice the weight of the fish understated by the applicant in the commission of both offences.
· An invoice from the receivers of Saxon Fishing Pty Ltd to Fishpak Pty Ltd seeking payment for the orange roughy unloaded from the "Saxon Onward" and the "Moira Elizabeth" on 12 and 13 August 1993, shows that no payment was sought, nor presumably made, for the fish unloaded but not disclosed on the returns to AFMA. In short, by the commission of these offences, Fishpak Pty Ltd avoided payment to the receivers of the sum in the order of $50,000. Whether anything was paid to Mr Wakefield is unknown.
· The 1998 value of 33,400 kilograms of orange roughy, the quota surrendered, was worth to Fishpak Pty Ltd something in the order of $93,500, less the cost (unknown) of catching the fish, unloading them and subsequently processing them.
· Since December 1997, Fishpak Pty Ltd has held a fish processing permit for continuous consecutive periods each of three months' duration.
· A letter written on behalf of the Department of Primary Industry and Fishing on 16 January 1998, states, in effect, that cancellation of the processing permit is still being considered.
· The convictions against the applicant and Fishpak Pty Ltd were confirmed by the decision of the Full Court in November 1998. However, the last three months' renewal of the processing licence was granted on 15 April 1999.
· In order to export processed fish overseas, Fishpak Pty Ltd needs to be the registered occupier of export registered premises, pursuant to relevant Commonwealth legislation. Fishpak Pty Ltd has been so registered continuously since 1991. By a letter dated 5 December 1997, the registering authority commenced a review of Fishpak's status to continue as a registered occupier of export registered premises in the light of its and the applicant's convictions. The authority has since agreed to postpone the review until this decision is handed down.
· By virtue of his convictions and the Corporations Law, s229(3), the applicant is ineligible to act as manager or director of any corporation without leave of the Federal Court.
· Since April 1998, leave has been granted for the applicant to manage and direct Fishpak Pty Ltd and a number of other corporations pending the handing down of this decision. The Australian Securities and Investments Commission has indicated that it will oppose the application when it is brought on for hearing again.
The affidavit of Mr Morris additionally details some matters of fact concerning Fishpak's discovery of a new orange roughy fishery after the first hearing before me in 1997. Details are given of Fishpak's subsequent activity in relation to that new fishery in conjunction with the CSIRO, pursuant to a scientific permit granted to the company by AFMA.
Counsel for the applicant submitted that I had power to receive the affidavit evidence by virtue of the provisions of the Justices Act 1959, s110, which provides:
"110 ¾ (1) …
(2) On the hearing of a motion to review, the court shall, upon consideration of the evidence and materials adduced and brought before the justices and such further evidence (if any) as it thinks fit, review the order so far as relates to the ground set forth in the notice to review, and thereupon may do all or any of the following things, namely:
…".
Senior counsel for the respondent submitted that evidence of facts that have occurred since the making of the impugned orders should not be received because the power to review orders made in a court of petty sessions was confined, as provided by the Justices Act, s107(4)(a) and (b), which provides:
"The grounds set forth in a notice to review shall allege ¾
(a) an error or mistake on the part of the justices on a matter or question of fact alone, or of law alone, or of both fact and law; or
(b) that the justices had no jurisdiction to make the relevant order."
Although couched in quite different terms, the power conferred by the Criminal Code, s409(1) to receive evidence on appeal is just as wide as that conferred by the Justices Act, s110(2). Whether evidence of facts that have arisen after imposition of sentence or conviction will be received on an appeal or the hearing of a motion to review depends upon the issues raised by the grounds of appeal. It is a question of relevance. Evidence of some irregularity concerning the conduct of the hearing to support an appeal against conviction on the ground of error of law, may be admitted as relevant to that ground if, for example, the irregularity constituting the alleged error of law is not apparent on the face of the proceedings. In determining the issue of relevance, and thus admissibility, a flexible approach should be adopted. Admission of evidence of post-sentence facts upon an appeal against sentence requires careful consideration.
In Plumstead v R (1997) 7 Tas R 206 and R v Stanley (1997) 7 Tas R 357, the Court of Criminal Appeal approved the following passage from the judgment of Gleeson CJ in R v Araya & Joannes (1992) 63 A Crim R 123 at 129 - 130:
"As a matter of practice this Court customarily adopts a flexible approach towards the reception of evidence in support of an application for leave to appeal against the severity of sentence. If it became necessary technically to justify reception of a good deal of the evidence we receive it would be done on the basis that it may become relevant to our resentencing the applicant if we decided to grant leave to appeal and have allowed the appeal.
However, I would prefer to say that the practice that the Court adopts is taken because of our overriding obligation to look at all the relevant facts or possibly relevant facts to determine whether a miscarriage of justice has occurred."
Although I dissented in the outcome of R v Stanley, the whole Court was of one view with respect to the admission of post-sentence facts upon the hearing of an appeal against sentence on the ground of manifest inadequacy or excessiveness. Such evidence is relevant and admissible if it shows the true significance of facts which were in existence at the time of the imposition of sentence or if it explains facts that were before the sentencing judge so as to put them in a new light. I again refer to the passage from the judgment of King CJ in R v Smith (1987) 44 SASR 587 at 588:
"The proper purpose of fresh evidence on an appeal against sentence is to bring before the court facts which were in existence at the time of the imposition of sentence but were not known to the sentencing judge or to explain facts which were before the sentencing judge so as to put them in a new light. It is not open to the Court of Criminal Appeal to intervene upon the basis of events which have occurred since the imposition of sentence, R v O'Shea (1982) 31 SASR 129 and fresh evidence is therefore not receivable to establish the occurrence of such events. A clear distinction is necessary between fresh evidence as to events occurring before sentence and evidence as to events occurring after sentence."
It is important to remember when referring to Stanley that the sentence which was the subject matter of the appeal was passed upon the basis that as a matter of fact, the respondent would give evidence against the co-accused. The new fact upon which the Crown wished to rely was that when the co-accused came to trial, the respondent refused to give such evidence and, accordingly, the basis upon which sentence was passed was false.
The circumstances of the present motion to review are quite different. Sentence was not passed upon the basis either that Fishpak's permits would or would not be cancelled. It was passed upon the basis that it was "surmised" that it might be cancelled. As I have already determined, that was the correct basis on which sentence should have been passed.
I interpolate here that the learned magistrate appears to have referred to the receiver's permit and the fishing permit attached to the "Saxon Onward", and each of them, without distinction. In one passage of his comments on passing sentence, he referred to "fishing permits and concessions currently held by Fishpak Pty Ltd", but in the passage which I have already set out, he refers only to "Fishpak's fishing permit". The same reference appears in the following critical passage:
"I am in a dilemma in not knowing the fact of Fishpak's fishing permit [sic] and think it likely that if it's cancellation could be predicted with certainty, an order for the immediate imprisonment of the defendant for which the prosecution contended, would not be made."
The reference to a likely order in the event of there being certainty about an uncertain future event is otiose to the reasons for sentence. Such speculation could attend virtually all comments on passing sentence, for in some measure, the risk of some relevant event becoming a reality, is almost always taken into account when passing sentence. It is no more than idle speculation to add, after determining the appropriate sentence in the light of all the circumstances, some of which are uncertain future events, that if one or more of those future uncertain circumstances eventuates, a different sentence would have been imposed. The articulation of such speculation is unwise, for it is likely to provoke appeals. If a sentence is open to review upon the basis that the future at the time of imposition of sentence has become the present, and the uncertain events become certain, there would be no end to reviews of sentence. The Appellate Court is a Court of error and not a Court of general review of sentence.
It seems to me that the correct approach to the preliminary point on grounds 6 and 7 of the motion to review is, firstly, to examine the factual material received de bene esse and, secondly, to determine if it either:
(a) shows the true significance of facts upon which sentence was passed; or
(b) explains facts that were before the sentencing officer so as to put them in a new light.
The learned magistrate imposed sentence upon the basis (inter alia) that:
· it was uncertain whether, at some unknown later time, Fishpak's fishing permit and receiver's permit would be cancelled;
· the applicant made a financial gain of an unknown amount by the commission of the offences.
It is not suggested that at the time sentence was imposed, the above basis was factually incorrect in any way. The evidence received de bene esse does not alter the state of the facts at the time sentence was passed, nor does it shed a different light on those facts. The evidence admitted de bene esse does no more than set out events that transpired after sentence was passed and leaves unaffected the basis for the imposition of sentence. The affidavit material shows that:
· Fishpak's fishing permit has been transferred to the applicant's mother;
· Fishpak, and thus the applicant, made a very substantial financial gain by the commission of the offences;
· by virtue of an agreement with AFMA, Fishpak has paid a further substantial penalty for the commission of the offences;
· the future of Fishpak's processing permit is still uncertain;
· the future of Fishpak's licence as an occupier of export registered premises is uncertain, but there is no reason to think that the learned magistrate was aware of the existence of this licence at the time sentence was imposed;
· certain other events have occurred since the imposition of sentence which, had they been in existence at the time sentence was passed, would have been taken into account in the sentencing process.
None of the above facts are admissible on grounds 6 and 7 of the motion to review. None of the material in the affidavits shows that sentence was imposed upon an incorrect basis. None of the material in the affidavits explain facts upon which sentence was passed so as to put them in a new light. As is invariably the case, the learned magistrate imposed sentence upon the basis (inter alia) that there was uncertainty about the occurrence of some future events. He was correct to do so. That sentence is for review upon the ground that, on the material before the learned magistrate, error attended its imposition. Evidence of events that were uncertain at the time of sentence, but which have subsequently become certain, are not per se relevant to the review. They only become relevant if, as I have said, such evidence shows the true significance of the state of uncertainty to which the learned magistrate referred when imposing sentence, or which shed new light on that state of uncertainty. None of the evidence admitted de bene esse falls into that category. It will not be admitted upon the determination of the motion to review.
Ground 6 of the motion to review is not made out. The learned magistrate plainly gave due weight to the mitigatory circumstances surrounding the applicant. He set them out in some detail in his reasons for judgment. There is no need to reiterate those circumstances here.
Upon the issue of whether the sentence is manifestly excessive, I venture to set out below the following passage from my judgment in Jetopay Pty Ltd v Dix (1994 - 1995) 76 A Crim R 427 at 435 - 436:
"General deterrence looms large upon the assessment of penalty for breaches of fisheries legislation. … The offences are difficult and expensive to detect and the rewards are very substantial for those who take fish to which they are not entitled. Orange Roughy and other species of fish constitute a natural resource, the preservation, controlled harvest and proper management of which is a matter in which the whole community has a legitimate interest. The legislation reflects this legitimate interest. Exploitation of the resource by a few for personal financial gain puts at risk the survival of this resource for future generation. … I agree with Wood J when he said in R v Kakura & Sato unreported Supreme Court of New South Wales 21 September 1990 at 18, that deliberate and sustained breaches of the fisheries legislation are offences that fall into the worst category. See also Hwang Ming Heui v Mellon (1980) 5 NTR 9. This is so even in cases where the offender is of hitherto good character. See Hoar v R (1981) 34 ALR 357. Although referring to the exploitation of fisheries by foreign vessels, the remarks of Barwick CJ in Cheatley v R (1971 - 1972) 127 CLR 291 at 296 may be borne in mind when considering penalty in the present matter:
'The protection of fishing grounds of the nation from foreign exploitation is somewhat akin to the protection of the country from smuggling. Drastic action in protection of the country's interests in each instance may be regarded as warranted, indeed if not to be expected: ...'."
Having regard to the importance of general deterrence, it cannot be said that the imposition of a short sentence of immediate imprisonment reflected unidentified error in the exercise of the sentencing discretion, notwithstanding the applicant's hitherto good behaviour. The offences were offences of greed, committed in a calculated manner and designed to deceive those charged by the public with the duty of properly managing a fragile resource in the public domain. The Fisheries Management Act, s107 provides for a maximum penalty of twelve months' imprisonment. The applicant was experienced in the fish processing industry and committed the offences in the full knowledge that to do so was to risk imprisonment. The offences were not committed as a result of an impetuous foolish decision. They constituted a deliberate attempt to practise a deception for financial gain, and were committed by a person who well knew the importance of furnishing accurate returns to AFMA. In general terms, imposition of penalty for this kind of offence, committed by a person engaged in the commercial fishing industry, must amount to more than a "tax" on illegal activity, otherwise it will be ineffective as either a personal or general deterrent.
For these reasons it seems to me that, although this Court is not imposing a sentence but reviewing a sentence imposed by another, no sentence other than a short immediate custodial sentence is appropriate to the circumstances of the offence and the circumstances of the offender within the meaning of the Crimes Act, s17A.
Conclusion
The motion to review the order of sentence is dismissed.
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