Department of Agriculture v Court; Department of Agriculture v Taiaroa

[1999] NSWSC 355

CITATION:	Department of Agriculture v Court; Department of Agriculture v Taiaroa [1999] NSWSC 355
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	11076/97; 11077/97
HEARING DATE(S):	17 March 1999
JUDGMENT DATE:	23 April 1999
PARTIES :	Director General, NSW Department of Agriculture (Plaintiff) Barry Court (Defendant) Michael John Taiaroa (Defendant)
JUDGMENT OF:	Studdert J

COUNSEL :	P. Saidi (Plaintiff) D. Fitzgibbon (Defendants)
SOLICITORS:	I.V. Knight (Plaintiff) Woodgate Morgan (Defendants)
CATCHWORDS:	CRIMINAL LAW; Tick infested horses brought into New South Wales; introduction contrary to Stock Diseases Act 1923; determination of appropriate penalties.
ACTS CITED:	Supreme Court (Summary Jurisdiction) Act Stock Diseases Act Statute Law (Miscellaneous Provisions) Act Crimes Act Clean Waters Act Clean Air Act State Pollution Control Commission Act Environmental Offences and Penalties Act Fines Act
CASES CITED:	R v H (1980) 3 A Crim R 53 Camilleri's Stock Feeds Pty Limited v EPA (1993) 32 NSWLR 683 Kaye v Vagg (No 2) (1984) 11 A Crim R 127 R v Fraser (1985) 20 A Crim R 4 R v Rahme (1989) 43 A Crim R 81 Smith v The Queen (1991) 25 NSWLR 1
DECISION:	See paras 86 and 87

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

STUDDERT J

Friday 23 April 1999

11076/97 DIRECTOR GENERAL OF THE NEW SOUTH WALES DEPARTMENT OF AGRICULTURE v BARRY COURT

11077/97 DIRECTOR GENERAL OF THE NEW SOUTH WALES DEPARTMENT OF AGRICULTURE v MICHAEL JOHN TAIAROA

JUDGMENT
1 HIS HONOUR : The Director General of the New South Wales Department of Agriculture has brought these proceedings against the defendants Barry Court and Michael John Taiaroa under the Supreme Court (Summary Jurisdiction) Act, 1967, alleging that each defendant has been guilty of offences under the Stock Diseases Act, 1923. The prosecutions against each defendant were heard together and Mr Fitzgibbon appeared for both defendants.
2 The prosecution concerned events that occurred on 7 August 1995 when two tick infested horses were brought into New South Wales from Queensland.
3 Before reviewing the facts it is appropriate to define the offences charged, which are identical against each defendant.
4 Section 20 of the Stock Diseases Act provides, by sub-s (1):
“A person must not introduce stock into the State in contravention of a provision of a proclamation under this Act.”
5 The prosecutor relies on three provisions of a proclamation which it contends each defendant has contravened:

(i) Proclamation No. 520 made pursuant to the Stock Diseases Act provides in Provision 2:
“A person must not introduce into New South Wales stock that is infested with cattle tick.”
Both defendants are alleged to have contravened that provision.
(ii) Provision 3 of the same proclamation provides:
“(1) A person must not introduce stock into New South Wales unless notice of introduction of the stock has been given in accordance with this clause.
(2) A person who intends to introduce stock into New South Wales must give notice of his or her intention to do so to the border inspector at a crossing place at least forty-eight hours before the introduction of the stock.”
The prosecutor contends that neither defendant gave notice as required by the above provision.
(iii) Provision 5(3) of Proclamation 520 provides:
“(3) A person must not introduce stock into New South Wales without a permit for the introduction of the stock issued by a border inspector.”
Once again the prosecutor contends that each defendant offended against the above provision.
The prosecution evidence reviewed

6 The evidence introduced in the case for the prosecution comprised the following affidavits:

(i) the affidavit of Daryl Llewellyn sworn 27 February 1997;
(ii) the affidavit of Graham Kellaway sworn 27 February 1997;
(iii) the affidavit of Francis Broughton, again sworn 27 February 1997;
(iv) the affidavit of Neil Smith sworn 27 February 1997;
(v) the affidavit of Richard Jane sworn 15 March 1999.

7 Affidavits in reply came from Graham Kellaway, sworn 14 July 1998 and from Stephen Pont, sworn 3 September 1998.
8 Mr Kellaway and Mr Pont were required for cross examination, but the factual issue on these prosecutions was a limited one. Neither defendant denied involvement in bringing the two horses concerned into New South Wales and neither defendant denied the breach of any one of the provisions of the proclamations relied upon. The only issue of fact on the prosecutions was whether the defendants or either of them was aware he was committing any one of the offences.
9 In these circumstances the facts relied upon by the prosecution can be fairly shortly reviewed.
10 Daryl Llewellyn was at the relevant time a stock inspector employed by the prosecutor in the course of his duties and on 7 August 1995 he observed on a monitor provided in conjunction with camera surveillance of traffic a white Nissan Cabstar ute towing a horse float. He saw the vehicle enter New South Wales from Queensland via the Tweed Heads bypass. Having done so he pursued the vehicle and eventually brought it to a halt. Mr Llewellyn inspected the two horses he observed in the horse float which he described as “paddock horses in rough condition”. The defendant Michael Taiaroa identified himself as the driver of the Nissan and he told Mr Llewellyn that the horses were being transported from Kin Kin in Queensland to Taree. He explained that he did not own the horses but that he was transporting them for his friend Mr Court, who was following him. The defendant said he was not aware of the requirements for horses entering New South Wales from Queensland. Mr Llewellyn requested the defendant to turn the vehicle around and to present the horses for examination at the Kirra treatment yards. Mr Taiaroa complied with that request.
11 This defendant was interviewed at Kirra and freely answered questions that were asked of him. He acknowledged that he had crossed the border at Tweed Heads, and that he did not present the horses to the Border Crossing Inspector. He admitted that he had no crossing papers, he had given no notice to the border inspector and he had no permit. He was asked whether he had seen signs on the roadway directing stock to the Kirra yards but he said he had seen no such signs.
12 Mr Kellaway was the assistant section manager and he attended at Kirra after both the defendants had arrived there. By that time ticks had been taken from the horses; they appeared to be cattle ticks. Mr Kellaway spoke to Mr Court and he asked both Mr Court and Mr Taiaroa whether there was any paperwork accompanying the horses. He was told there was not. The defendant Mr Court asked whether it would help on a prosecution if he pleaded ignorance and was told it would not.
13 Francis Broughton is an inspector with the prosecutor and he participated in the examination of the horses at the Kirra Treatment Yards. He said that six ticks were removed from a brown gelding, being one of the horses, and several ticks were removed from the second horse, a black gelding.
14 It was Neil Smith, another inspector with the prosecutor, who removed the ticks from the horses, inviting Mr Court to look at them as he did so. Mr Smith spoke to Mr Court and Mr Court said that the horses were his. Mr Smith informed Mr Court that the horses had been introduced into New South Wales without proper procedure and when the defendant asked what he should have done he was told that he should have applied for a travel permit and notified the inspector at the border crossing. Again Mr Court appears to have answered what he was asked in a forthright fashion.
15 The evidence satisfies me that both animals were heavily infested with cattle ticks. I accept the description Mr Kellaway gave in his affidavit of 27 February 1997 as to the ticks observed on examination. On the brown gelding, there were approximately forty larval stage cattle ticks on the animal’s neck, forty-five such ticks on the point of the shoulder, ten on the lower jaw and thirty-five on the chest and upper front leg area. On the black gelding there were twenty larval stage cattle ticks on the crest of the neck, fifteen on the point of the shoulder, five on the lower jaw and ten on the chest and upper foreleg.
16 The evidence establishes each of the offences charged against each of the defendants. The prosecution has proved that these two animals were brought into New South Wales when infested with cattle tick. The breach of Provision 2 of Proclamation 520 has accordingly been proved. The evidence further establishes that neither defendant gave notice of intention to bring the animals into New South Wales as required by Provision 3 of the Stock Diseases Proclamation 520. The evidence further establishes that neither defendant had a permit for the introduction of the stock as required by Provision 5(3).
17 Whilst the defendant Mr Taiaroa owned the horse float by means of which the horses were being introduced into this State and whilst he drove the vehicle towing that float, the defendant Mr Court owned the horses and Mr Taiaroa was bringing the horses to New South Wales for Mr Court and with his knowledge.
18 I am satisfied that the prosecution has proved its case against both defendants and, indeed, Mr Fitzgibbon did not contend to the contrary.

The cases for the defendants
19 The following affidavits were introduced in the cases for the defendants:

(i) the affidavit of Barry Court sworn 10 March 1998;
(ii) the affidavit of Michael John Taiaroa sworn 9 March 1998;
(iii) the affidavit of Susan Marie Court sworn 3 March 1998.

20 In addition Mrs Anne Taiaroa, the wife of Michael Taiaroa, gave evidence.
21 Mr Court acknowledged in his affidavit the ownership of the two horses. He had acquired them without cost; they were former trotting animals, and they were acquired as horses for the Court children to ride.
22 Mr Court, his wife and his children moved from an address near Taree to Kin Kin in December 1994. Mr Court was a tiling contractor by occupation but he and his wife had undergone a course of training as remedial therapists and in December 1994 they went to Queensland to work in that capacity on a health farm. In August 1995, their work in Queensland having come to an end, Mr and Mrs Court were on their way back to Taree. Mr Taiaroa was a friend of Mr Court, the two having met in Queensland several months before the date of the commission of the offences.
23 Mr Court said he was not aware that there were any regulations governing the introduction of the horses into New South Wales. He was not aware in short that he was committing any offence in arranging for Mr Taiaroa to transport the horses but he acknowledged of course his awareness that Mr Taiaroa was taking them on his behalf, and indeed Mr and Mrs Court were in a following vehicle.
24 On the hearing there was concentration in the evidence upon a number of road signs. Their location was identified in an affidavit sworn by Mr Kellaway on 14 July 1998. There are photographs attached to that affidavit and I am satisfied on the evidence that those photographs show signs that were in place on 7 August 1995.
25 Prior to the journey being stopped the defendants were of course travelling in a southerly direction. Their journey took them past the airport at Coolangatta. At that point there were four lanes for southbound traffic and some 200 metres south of the airport there were positioned beside the roadway two signs, one of which was beside the nearside edge for southbound traffic and the other of which was erected on the grass median strip. Those signs carried the legend:
“Livestock vehicles via Kirra stock yards. Left lane.”
26 Further on for southbound traffic, at a point some 400 metres south of the airport, there is a division in the roadway. What was previously a four lane highway for southbound traffic became a two lane highway at the Tweed Heads bypass which comprised the right hand fork in the road at that point for southbound traffic. The other fork was Coolangatta Road. Prominently displayed at that fork was a sign reading:
“Livestock vehicles must exit.”
27 Immediately below those words on the sign was a directional arrow indicating livestock vehicles were to go into Coolangatta Road. The defendants did not do so. Proceeding along the Tweed Heads bypass in the direction in which the defendants proceeded at approximately 1.1 kilometres south of the airport, was another sign which reads:
“Stock and hay vehicles prohibited on Tweed bypass. Camera surveillance.”
28 Another 200 metres south there was another sign which reads:
“Stock for treatment must go via Kirra Treatment Yards.”
29 Then another 600 metres to the south there is a further sign:
“Stock and hay vehicles must exit left.”
30 Mr Court said he did not notice any of these signs but he said that had he done so it would not have registered with him that the signs were relevant to the transport of his two horses. He said he had travelled this route three or four times before, but he was unaware of the signs.
31 Mr Taiaroa, like Mr Court, expressed his ignorance of any regulatory requirements governing the movement of these horses. Mr Taiaroa is a fruit farmer by occupation. He said that he had acquired the horse float in May 1995, because his wife had acquired some horses, but he had no direct involvement with stock. Like Mr Court, Mr Taiaroa said that he did not notice these signs on the journey in question nor on any previous journey.
32 Mrs Court was travelling with her husband on 7 August 1995. Her evidence was that she did not observe the signs either and Mrs Court said that she knew of no requirements restricting the movement of the horses back into New South Wales. Mrs Court made no inquiries of any public authority about that matter, although when the Courts were about to move to Queensland at the end of 1994 she did inquire of the Roads and Traffic Authority as to whether there were any restrictions for the moving of the horses to Queensland and was informed that there were not.
33 Mrs Taiaroa was accompanying her husband on 7 August 1995 but, like her husband and her friends, Mrs Taiaroa did not observe the road signs that I have described.
34 Each of the defendants was cross examined extensively. Mrs Court and Mrs Taiaroa were also cross examined. I did not form an unfavourable impression of any one of these four witnesses. I do not find that either defendant acted in deliberate defiance of the requirements of the Stock Diseases Act or the proclamations thereunder. It is perhaps surprising that neither of the defendants nor their wives had learned that there were controls that governed the movement of stock into New South Wales. It is perhaps also surprising that none of these travellers on the journey in question or on any previous journey observed any one of the signs which I am satisfied were quite prominently displayed. However I have regard to the sworn evidence each of these witnesses gave and I do not find that the evidence I have reviewed was untruthful.
35 Video film was tendered to show the signs I described earlier. The film was taken using a camera located in a moving vehicle. There was also the video film taken on the day these offences were committed, and the camera captured the movement of the Nissan towing the horse float.
36 Mr Taiaroa went to the trouble of taking further film showing the scene from a vehicle closely following two removalist vans. This video film was presented with a view to showing how, in close traffic behind large vehicles, a motorist’s view of the notices I have described might be obstructed. Be that as it may, what the camera captured as to the movement of the Nissan towing the horse float on the journey in question does not indicate heavy traffic conditions, and certainly not conditions which would have prevented a traveller who was keeping a proper lookout for notices from seeing what was on them.
37 The only explanation for the defendants travelling on in ignorance of the signs is that each of them was keeping no lookout for the presence of these road signs. Neither defendant could have been paying any regard for the presence of signs in the relevant area.
38 An affidavit was sworn by Mr Pont. Mr Pont was working as a traffic controller with the local council in August 1995 when he saw Mr Taiaroa’s truck towing the horse float travelling south. He said that he identified this vehicle as being a vehicle he had seen in April 1994 when he was employed by the prosecutor and was on duty at the Boyd’s Bay crossing station. On that occasion in 1994 Mr Pont had spoken to one of the occupants of the vehicle who had told him he was going to Kin Kin and Mr Pont had a conversation with this person which would indicate an awareness of relevant permit requirements.
39 Mr Pont gave evidence before me, and I accept without hesitation that he gave evidence honestly and to the best of his recollection. However I am satisfied by the evidence which Mr and Mrs Court gave that they did not go to Queensland in April 1994 and I am further satisfied that they did not have the use of Mr Taiaroa’s Nissan or his horse float when they did go to Queensland. I accept that the Courts did not meet the Taiaroas until a few months before the journey in August 1995 and I therefore conclude that Mr Pont must be honestly mistaken in his recollection. I have no reason to doubt that Mr Pont had an encounter such as he described in his affidavit in April 1994 but I do not find that that encounter involved either defendant.
The gravity of the offences
40 The prosecutor tendered an affidavit from Mr Richard Jane, veterinary surgeon. He is the Chief Veterinary Officer for the prosecutor in New South Wales and he manages the cattle tick programme in this State. An annual budget of $7.2 million is provided for the programme committed to the eradication of cattle tick from New South Wales and the protection of the cattle industry from incursions of cattle tick and tick fever. The greatest area of threat, according to Mr Jane’s affidavit, is the Queensland cattle tick affected area, which Mr Jane’s affidavit does not define. Mr Jane’s evidence is that cattle tick have the ability to reproduce rapidly with each female tick laying up to 3500 eggs. It was Mr Jane’s opinion, and I accept it, that the introduction of these two horses did represent a very serious threat to the cattle industry. Fortunately the intrusion was detected before any harm could be done.
41 Mr Jane’s evidence was not challenged and I am satisfied that these offences must be regarded as serious.
42 The scheme of penalties for an offence under s 20 of the Stock Diseases Act is set out in that section. The maximum penalties have been increased for offences committed since 1 September 1997 (see Statute Law (Miscellaneous Provisions) Act, 1997). However those most relevant increases do not apply to these prosecutions, relating as they do to events that occurred on 7 August 1995. For present purposes, where stock was introduced into the State in contravention of a provision of a proclamation under the Act and at the time of such introduction the stock were actually diseased, the maximum penalty was 200 penalty units, that is $20,000. Fortunately, as I have already observed, the introduction of these horses did not lead to other stock in New South Wales becoming actually diseased. Had it done so, the maximum penalty provided in respect of each offence would have been 1000 penalty units ($100,000), or imprisonment for six months, or both. Whilst the maximum penalties that would have applied had the introduction of these horses caused disease to other stock have no possible application in respect of the subject offences, I have referred to them for completion.
43 Each of these offences committed by each of these defendants is in a category of offence for which the maximum penalty prescribed at the relevant time was $20,000.
44 What are the subjective features to be considered in the case of each defendant?
45 Mr Court has no relevant criminal history and I treat him as being a person of good character. It is to be brought into account in his favour that he freely admitted his involvement in the commission of the offences and I am prepared to accept not only that he did not see the relevant road signs but that there was no conscious and deliberate offence committed by him. Nevertheless I accept Mr Saidi’s submission that there was gross carelessness on his part. If he did not know of the danger that ticks presented he ought to have known and if he did not know of the requirements governing the movement of stock into New South Wales he ought to have made it his business to inquire as to whether there were any such requirements. Moreover, he should have known these two horses were carrying ticks.
46 Mr Fitzgibbon invited me to consider giving the defendants the benefit of s 556A of the Crimes Act. I cannot accede to that submission. I consider these offences to be too serious to permit of such an approach.
47 Mr Taiaroa I accept as being a person of good character with no convictions. Like Mr Court he co-operated freely with the departmental officers encountered on 7 August 1995. I accept in his case, as in the case of Mr Court, that there was no deliberate disobedience of the provisions of the statute and the proclamations, in the sense that he did not know of the requirements which governed the introduction of these two horses. However, again in the case of Mr Taiaroa, I accept the submission of Mr Saidi that I should regard Mr Taiaroa as having been grossly negligent in his participation in the movement of these horses. Whilst I accept that he did not know what was required he ought to have made it his business to find out before participating in the transport. Mr Taiaroa should, like Mr Court, have known these two horses were carrying ticks. There is no suggestion that he had no opportunity to inspect the horses before he assumed the responsibility of their transportation into this State.
48 Should Mr Taiaroa be treated more leniently than Mr Court? He was not the owner of the animals and he did what he did as a favour to his friend. However I have concluded that the nature of his participation and involvement is such that the same penalties ought to be imposed upon each defendant.
49 What should the penalties be?
50 I was informed by counsel that these are the first cases for offences of this nature in which resort has been had to the Supreme Court (Summary Jurisdiction) Act. Previously prosecutions have been pursued in the Local Courts.
51 I have been provided with a schedule detailing convictions and penalties imposed in the Local Courts under the Stock Diseases Act, going back as far as 1988. Many of these convictions were for offences against s 20 of the Stock Diseases Act, involving the unlawful introduction of livestock into this State. The penalties imposed in the Local Courts varied. The largest penalty recorded on the schedule was for an offence in 1995 when 125 infected sheep were moved contrary to s 20C(2)(c). It is to be observed that that was not an offence involving the introduction of infected livestock into New South Wales, but the movement of infected stock already within this State. The maximum penalty available in that case was $10,000, as opposed to $20,000 in the present case in respect of each offence. The penalty in that 1995 case was $4000. The schedule otherwise does not disclose penalties in excess of $1000 for any one offence.
52 It is significant that the legislature saw fit to increase the penalties for offences under s 20 in 1989. Prior to these increases, the maximum monetary penalty for any offence under the Act was $2000. The amending Act, No. 181 of 1989, recast Part 5 of the statute and s 20 was amended to its present form. The increase in penalties was very significant indeed. I set out in para 42 above the increased penalty for the introduction of diseased stock; absent disease, the introduction of stock into New South Wales contrary to a provision of a proclamation attracted an increased maximum penalty after the 1989 amendments of $10,000. The Second Reading Speech of the Minister for Agriculture and Rural Affairs makes it clear that the penalties before their increase were regarded by Parliament as totally inadequate. One of the cases which the Minister referred to in that Speech as illustrating the inadequacy of the regime of penalties concerned the transportation of calves and hay from a tick affected area in Queensland into New South Wales. That introduction was causative of very serious tick infestation and the need for an extremely costly programme of eradication. Penalties imposed in the Local Court were nevertheless reduced on appeal to the District Court in that matter, where the aggregate penalties for the various offences charged in consequence of the introduction totalled only $1100. Plainly the offences in that case were much worse than these with which I am presently concerned, but, of course, those penalties preceded the 1989 amendments. Since the offences concerning the calves had led to the spread of disease, the offender in that case would, after the amendments, have been facing a maximum penalty of $100,000 per offence.
53 It is relevant to heed the 1989 amendments as evidencing the “public expression” by Parliament as to the seriousness with which it views breaches of the various categories of offences contemplated by s 20: see R v H (1980) 3 A Crim R 53 per Moffitt P at 65, and Camilleri’s Stock Feeds Pty Limited v EPA (1993) 32 NSWLR 683 per Kirby P at 698.
54 Mr Saidi provided a second schedule detailing penalties imposed for environmental offences. The cases in this schedule record penalties imposed in the Land and Environment Court for offences against a variety of statutes, including the Clean Waters Act, the Clean Air Act, the State Pollution Control Commission Act, and the Environmental Offences and Penalties Act. I have considered that schedule but I have concluded that it affords very limited guidance in the approach I should take to my present task.
55 Indeed whilst I have considered closely the content of the schedules produced by Mr Saidi, and in particular the schedule relating to the penalties imposed under the Stock Diseases Act, I do not find ultimately that I am greatly assisted by the scheduled penalties, absent more information as to the various cases in which the penalties were imposed. It is also a relevant consideration when looking at penalties imposed in the Local Court that for offences prior to 1 September 1997 s 20L(2) of the Stock Diseases Act set a maximum penalty of $10,000 in that court for any offence against the Act unless the Act specifically imposed a lesser penalty, in which case that lesser penalty was to be the maximum penalty:
“20L. (2) If proceedings are brought in a Local Court, the maximum pecuniary penalty that the Local Court may impose for the offence is 100 penalty units or the maximum penalty provided for the offence by this Act or the regulations, whichever is the lesser.”
56 I must be guided by general sentencing principles.
57 In determining the penalty to be imposed, it is necessary to assess the seriousness of the offences against the background of the possible gravity of offences for which the maximum penalty has been set. Here in each case the maximum penalty is $20,000, but that penalty is only appropriate for an offence properly to be regarded as exemplifying the worst kind of breach to which the penalty relates. I respectfully adopt in analysing my task what Kirby P said in Camilleri’s Stock Feeds at 698:
“The task of a court is to assess the relative seriousness of the offender’s particular offence in relation to a worst case for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the scale of penalty set by the legislature from zero to the maximum.

A maximum penalty is to be imposed where the case falls within the worst category of cases for which the penalty is prescribed. This is to be determined on the facts of the case: Ibbs v The Queen (1987) 163 CLR 447 at 452. However, ‘that does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognisably outside the worst category’: Veen v The Queen [No 2] (1988) 164 CLR 465 at 478.”

58 I do not view these cases as belonging to the worst category of cases for which the penalty of $20,000 has been prescribed. Plainly they do not fit such a category or anywhere near it. Neither defendant is to be treated as having deliberately flouted the provisions of the relevant proclamation, although I have found that each acted with gross carelessness. Neither defendant was introducing these horses for gain or as part of a business; the defendant Taiaroa was doing his friend a favour and the defendant Court was, as it were, moving house, and in the process was moving his children’s horses.
59 It is fortunate that the introduction of these horses was quickly detected before any spread of ticks to other animals; of course, as I observed earlier, had there been the spread of disease, the offences would have moved into the gravest category attracting the much greater maximum penalty of $100,000.
60 It is proper that I take into account that each of these defendants co-operated fully with departmental officers following apprehension. I take into account that each defendant freely confessed his involvement in the transportation, and that the only issue raised by either defendant in this Court was the absence of knowledge of the presence of signs and the statutory requirements which prompted their erection. True it is that each defendant would have faced a powerful case had he conducted his defence differently, but nevertheless I should heed the approach in fact taken by each defendant in arriving at an appropriate penalty.
61 Each defendant is going to face a substantial burden for the payment of the costs of the prosecution in this Court, and this is a factor not to be ignored.
62 It would be quite wrong to view each of the three offences charged against each of the defendants in isolation. I must heed the principle of totality, and this, of course, calls for a broad evaluation overall of all the contraventions of the proclamation under the statute. Those breaches, of course, all concerned the movement of the same horses on the same day. The defendants introduced horses that were infested with cattle tick, and they did so without giving the required notice and without obtaining the required permit.
63 I do not consider either of these defendants is likely to contravene the requirements of the Stock Diseases Act again. However each defendant must be punished and the consideration of general deterrence must be recognised.
64 Whilst I shall proceed to impose fines for each offence, I intend to impose penalties which in aggregate I consider to be appropriate to the particular circumstances of these two cases.
65 In determining appropriate penalties I should have regard to the financial circumstances of each defendant. Section 6 of the Fines Act 1996 provides:
“In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider:

(a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and
(b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.”

66 The authorities establish that it would be unjust to impose penalties which a defendant has no reasonable capacity to pay.
67 In Kaye v Vagg (No 2) (1984) 11 A Crim R 127 Cox J, having referred to a number of decisions, stated their effect at 129:
“They establish, as Cosgrove J says in Devlyn v Lowe (unreported, Supreme Court of Tasmania, 23 May 1980), that ‘the imposition of a fine which is beyond the offender’s reasonable capacity to pay never was just or rational.’”
68 In R v Fraser (1985) 20 A Crim R 4 Davies, Kelly and Beaumont JJ in their joint judgment made an extensive review of the authorities on the relevance of an inability to pay and said at p 12:
“We think some relevant considerations are correctly and succinctly stated in Hines at pars 9.24 and 9.25:

‘An offender should not be fined a sum which he has no means of paying…, and that principle makes it wrong to impose such a fine on the footing that some other person will pay… The [Court of Criminal Appeal] in Lewis [1965] Crim LR 121 made it clear, however, that ‘the court should not be misled into thinking that present incapacity to pay is conclusive. There may be many cases where a man at the moment may only be able to reveal overdrafts and debts, whereas somewhere at his beck and call are to be found resources with which he can meet the penalty’; moreover, future earning capacity is obviously relevant provided that regard is had to current local work prospects.”

69 R v Rahme (1989) 43 A Crim R 81 is further authority for the proposition that an offender’s ability to pay is an important consideration in arriving at a penalty. In that case, having regard to the appellant’s disclosed means and capacity to pay, the Court of Criminal Appeal reduced the penalty imposed at first instance by more than seventy-five percent. Finlay J reviewed the relevant authorities at pp 86-89.
70 See also Smith v The Queen (1991) 25 NSWLR 1 and in particular the judgment of Kirby P at 12.
71 Whilst no evidence was introduced at the hearing on 17 March 1999 as to the financial resources of either defendant, the parties have since agreed that I should consider affidavits subsequently sworn by the defendants which deal with their financial positions.
72 The affidavit of Mr Court, which I have identified as Exhibit 9, was sworn on 15 April 1999. The prosecutor does not seek to challenge the content of that affidavit which discloses that Mr Court is a person of limited means. He is a self-employed tiling contractor conducting his business in partnership with his wife. Both are dependent entirely upon the income of that business although both Mr and Mrs Court had earlier conducted business in remedial massage. They have three children living at home; one is employed as the defendant’s apprentice but the other children are not earning. Indeed, the youngest child is still at school.
73 Mr Court’s affidavit discloses a total taxable income for the partnership for the year ended 30 June 1997 of $24,098. The affidavit discloses much the same picture for the year ended 30 June 1998 and the nett income for the year ended 30 June 1999 is expected to be some $26,000, to be divided equally between Mr and Mrs Court.
74 The affidavit discloses that the combined assets of Mr and Mrs Court are modest. They own no real estate, they rent their premises at Wallsend, and they have borrowed on the two vehicles that they possess. Assets have been valued at under $17,000 and liabilities in excess of $22,000.
75 The estimated nett weekly income for the partnership for the year ending 30 June 1999 is $513. Details of income and expenditure on an average weekly basis as set out in the affidavit disclose a modest excess of expenditure over income. However I note the defendant’s expressed intention to attempt to increase his income and to reduce his expenditure to pay the penalties and costs in this matter. Obviously he will have to do both.
76 I must have regard to the evidence in Mr Court’s affidavit in fixing the penalties to be imposed in his case.
77 The defendant Mr Taiaroa swore an affidavit on 17 April 1999 and I have identified that affidavit as Exhibit 10. Once again the prosecutor does not seek to challenge the content of this affidavit. Mr Taiaroa carries on farming in partnership with his wife. Unlike Mr Court, Mr Taiaroa does have an interest in property. He and his wife own their farm, although it is apparently encumbered. The farm with house has a stated value of $180,000, but that supports a loan advanced by the defendant’s mother-in-law in excess of $80,000. This defendant and his wife have liabilities to a bank and a finance company of approximately $20,000. The partnership assets exceed liabilities by over $100,000, but the surplus is represented by the farm and farming equipment which, of course, are essential to produce income.
78 For the year ended 30 June 1997 the farming business produced for the partnership a taxable income of under $13,000. The year ended 30 June 1998 was more successful, the business showing a nett profit of $32,000 before tax. The defendant expects the current financial year to produce a partnership income of $20,000 after tax. However the defendant said, and I accept, that farming income is extremely volatile and difficult to predict.
79 The defendant and his wife have four children, three of whom are fully dependent on their parents. Paragraph 9 discloses an excess of weekly expenditure over income. This defendant stated an intention in his affidavit to borrow funds to meet his obligation for penalties imposed and costs. Obviously he will then have increased expenditure in repaying those loans.
80 It would seem that Mr Taiaroa has more assets than Mr Court but like Mr Court his ability to meet penalties in this case is limited.
81 I have decided that I should reduce the penalties I would otherwise have imposed in the case of each defendant so as to take account of his financial position. Whilst I recognise such differences as there are in their respective financial positions, I have nevertheless decided, as I indicated earlier, that I should punish each defendant in the same way so that the orders I will make in each case in respect of penalties are the same. I propose to impose a penalty in each case of $2000 in respect of the offence identified in paragraph 1 of each summons and a penalty of $750 in respect of the offences identified in paragraphs 2 and 3 thereof.
82 This brings me to costs.
83 Correspondence has been forwarded to my associate by agreement between the prosecutor and the defendants. I have had that correspondence identified as Exhibit E. Such correspondence records an agreement that the defendants will pay the prosecutor’s legal costs and disbursements in the sum of $15,000. It has been agreed, as that correspondence discloses, that each defendant is to be responsible only for $7500 of the prosecutor’s total costs. In the case of Mr Court it has been further agreed that he will pay his share of such costs at a minimum rate of $100 per month.
84 The agreement I have outlined will be reflected in the orders for costs that follow.
85 No application has been made to me by either defendant for time to pay the penalties I am about to impose nor would any such application be appropriate, having regard to the provisions of the Fines Act, 1996. The penalties I impose are to be payable within twenty-eight days, subject to any application that may be made to the registrar of this court pursuant to s 10 of the Fines Act.
Formal orders
86 In matter no. 11076/97 concerning Barry Court:

(1) The defendant is convicted of the offences defined in paragraphs 1, 2 and 3 of the summons filed on 11 April 1997.
(2) The defendant is fined the sum of $2000 for the introduction of horses infested with cattle tick, in contravention of provision 2 of the Stock Diseases Proclamation No. 520.
(3) The defendant is fined the sum of $750 for the introduction of such stock without having given requisite notice in contravention of provision 3 of the same proclamation.
(4) The defendant is fined the sum of $750 for the introduction of such stock without the requisite permit in contravention of provision 5(3) of the same proclamation.
(5) The defendant is to pay the prosecutor’s costs in the sum of $7500, with such costs to be paid by monthly instalments of no less than $100. The first such instalment is to be paid no later than twenty-eight days from this date.

87 In matter No. 11077/97 concerning Michael John Taiaroa:

(1) The defendant is convicted of the offences defined in paragraphs 1, 2 and 3 of the summons filed on 11 April 1997.
(2) The defendant is fined the sum of $2000 for the introduction of horses infested with cattle tick, in contravention of provision 2 of the Stock Diseases Proclamation No. 520.
(3) The defendant is fined the sum of $750 for the introduction of such stock without having given requisite notice in contravention of provision 3 of the same proclamation.
(4) The defendant is fined the sum of $750 for the introduction of such stock without the requisite permit in contravention of provision 5(3) of the same proclamation.
(5) The defendant is to pay the prosecutor’s costs in the sum of $7500.
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Last Modified: 04/23/1999