Brinkman v Dix (No 2) - [1999] TASSC 65

[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brinkman v Dix (No 2)

Details

AGLC: Brinkman v Dix (No 2) [1999] TASSC 65
Case: [1999] TASSC 65
Decision Date: 4 June 1999

CaseChat Overview and Summary

This appeal concerns the sentence imposed upon Norman Brinkman, the director of Fishpak Pty Ltd, by the magistrate in the Hobart Court of Petty Sessions for two breaches of the Fisheries Management Act 1991. The offences were committed by the understatement of the weight of orange roughy received on 12 and 13 August 1993. The Supreme Court of Tasmania reviewed the sentence and allowed the appeal against the sentence imposed by the magistrate. The Full Court remitted the matter back to the Supreme Court to determine the remaining grounds of the motion to review sentence. The court was required to decide whether there had been an error in fact or in law in the magistrate's sentencing process, including whether the magistrate failed to consider all other available sentences and if the sentence was manifestly excessive in all of the circumstances. The court found that the magistrate had not erred in fact or in law in imposing the sentence and dismissed the motion to review sentence. The court found that the magistrate had properly considered the circumstances of the offence and the offender and imposed an appropriate sentence. The court held that the evidence of events that had occurred after the imposition of sentence was not relevant to the review of the sentence.

Orders