Director General, Department of Industry and Investment v Rob Butler (Nee Zachariah El-Chami Batch)

[2011] NSWSC 1620

Supreme Court

New South Wales

Medium Neutral Citation:	Director General, Department of Industry and Investment v Rob Butler (Nee Zachariah El-Chami Batch) [2011] NSWSC 1620
Hearing dates:	10 February 2011
Decision date:	23 December 2011
Jurisdiction:	Common Law
Before:	Hidden J
Decision:	Fines imposed. Forfeiture of boat declined.
Catchwords:	SUMMARY PROSECUTION - Fisheries offences - pleas of guilty - whether boat used in connection with offences should be forfeited.
Legislation Cited:	Fisheries Management Act 1994 Fisheries Management Regulations 1992
Category:	Principal judgment
Parties:	Director General, Department of Industry and Investment (plaintiff) Rob Butler (Nee Zachariah El-Chami Batch) (defendant)
Representation:	Counsel M Higgins (plaintiff) G Gillett (defendant) Solicitors IV Knight, Crown Solicitor (plaintiff)
File Number(s):	2010/32882

Judgment

1. The plaintiff, Director General, Department of Industry and Investment, brings these proceedings against the defendant, Rob Butler, by way of summary prosecution under the Fisheries Management Act 1994. (I understand that the defendant is of Lebanese origin and Rob Butler is his anglicised name.) The plaintiff also seeks the forfeiture of a boat used in the commission of one of the offences charged, pursuant to s 269 of the Act. It is because the value of that boat exceeds $10,000 that the proceedings have been instituted in this court: s 269(2).

1. The defendant is charged with the possession of a quantity of saltwater nippers in excess of the maximum permitted by the legislation (referred to as "the possession limit"), an offence under s 18(2) of the Act. He is also charged with 2 offences of resisting or obstructing a Fisheries officer in the exercise of his duty, pursuant to s 247(1). To those charges he has pleaded guilty.

1. It is the application for the forfeiture of the boat which is in contest. Each of the offences under ss 18 and 247 of the Act is a "forfeiture offence" for the purpose of s 265. That section empowers a Fisheries officer to seize a boat reasonably believed to have been used by a person engaged in commercial fishing activities for the purpose of committing such an offence, and boats seized under that provision are liable to forfeiture under s 269.

Facts

1. I received a lengthy statement of facts, which it is not necessary to recite in detail. It is sufficient to say that in the evening of 7 January 2010, Fisheries officers were patrolling in the Port Hacking area. They saw a white boat stationary in Fisherman's Bay. On sand flats adjacent to where the boat was anchored, they saw the defendant and another man, Christopher Barrett, extracting saltwater nippers by the use of a bait pump. As I understand it, a saltwater nipper is a small crustacean which is commonly used as bait. This process continued for over two hours. This constituted the offence under s 18(2) of the Act. The saltwater nippers were placed in buckets and conveyed on the white boat to Gunnamatta Bay, where Mr Barrett was dropped off.

1. The defendant then navigated the boat to a boat ramp at Caringbah. There he loaded it onto a trailer connected to a Toyota Hilux motor vehicle. He drove the vehicle to Gunnamatta Park, where Mr Barrett was waiting for him. Mr Barrett had the two 20 litre buckets containing the nippers. He placed one of them into the boat.

1. These movements had been observed by Fisheries officers, who were travelling in patrol vehicles. In one of them, a marked vehicle, were Officers Clarke and Wright. Both were wearing fluorescent yellow vests with the words "Fisheries officer" on the front and the word "Fisheries" on the back. Their vehicle stopped in front of the defendant's vehicle. Officer Wright got out and held up a large sign saying "Stop, Fisheries" and shouted those words. He also held up his official warrant.

1. The defendant reversed his vehicle. In doing so he hit Mr Barrett, who was trying to place the second bucket of saltwater nippers into the boat, knocking him to the ground. Officer Wright again shouted "Stop, Fisheries". The defendant drove forward, colliding with the sign which officer Wright was holding, and drove off. This conduct gave rise to the first charge under s 247 of the Act. Officer Clarke found the bucket containing nippers which Mr Barrett had dropped when he was struck by the defendant's vehicle.

1. The defendant was followed by another Fisheries officer, Officer Cartwright, in an unmarked patrol vehicle. He stopped at a location in Woolooware and momentarily got out of the vehicle. Officer Cartwright drove his vehicle in front of the defendant's, by which time the defendant had got back into it. The officer held up his official warrant, but the defendant began to reverse the vehicle. The officer shouted, "New South Wales Fisheries officer. Stop this vehicle now!" However, the defendant drove off again.

1. Officer Cartwright continued to follow him over a significant distance. Eventually, at a location in Caringbah, he was able to enlist the assistance of police who were travelling in a vehicle in the area. The police turned on their red and blue flashing lights and the defendant stopped. This course of conduct constituted the second offence under s 247. Officer Cartwright identified himself and cautioned him. He falsely claimed that the saltwater nippers had been given to him by a man he named as "Greg", who was known to the officers as a commercial fisherman. However, when it was put to him that Fisheries officers had observed his activities earlier in the evening, he admitted that he had been collecting the nippers and named his accomplice as "Chris".

1. Other Fisheries officers arrived at the scene, and the defendant made further admissions to Officer Chen. He supplied further information about Mr Barrett, and offered to help officers catch the bait and tackle shops which were allegedly buying saltwater nippers from him. He also admitted that at Gunnamatta Park he had seen Officer Wright holding a sign on which he could read the word "stop." For reasons which will appear, the principal concern he expressed was that his boat might be seized. He pleaded with the officers not to do so. He said, "I swear to God I will tell you everything." He also said, "I swear to God this is the last time. I will stop, please don't do it to me."

1. The boat and trailer were seized. A large number of live saltwater nippers were found in the two white buckets, together with a further two of them on the floor of the boat. In all, the nippers numbered a little over 2,000. By a provision in the Fisheries Management Regulation 1992, the possession limit of saltwater nippers is 100 per person.

Antecedents

1. The defendant has a number of previous convictions of offences under the Act, all of them dealt with by the imposition of fines in the Local Court. Four of them were committed in 2000 and 2002, and were dealt with at Ryde Local Court on 2 May 2003. However, significantly for present purposes, three of them were committed in 2008 and 2009 and were dealt with at Campbelltown Local Court on 6 December 2010. There was an offence under s 18(2), being in possession of 1,500 saltwater nippers, and an offence of resisting or obstructing a Fisheries officer (s 247(1)), both committed on 18 December 2008. There was a further offence under s 18(2), on this occasion the possession of 2,520 saltwater nippers, committed on 26 December 2009. The penalties for these offences were modest except for the last, for which he was fined $4,500, together with court costs and a substantial sum for professional costs.

Defendant's evidence

1. An affidavit of the defendant was read and he gave oral evidence. In the affidavit he expressed remorse for the offences and said that he would not break the law again. He acknowledged that he did not stop when directed to by Officer Cartwright because he knew that he had excess saltwater nippers in his possession. He also acknowledged that he had lied when he claimed that he had been given them by another person. He expressed regret for any danger he might have caused to Officer Wright or Officer Cartwright by his course of driving.

1. In oral evidence, he claimed that he did not know that Officer Wright was a Fisheries officer when he stood in front of his vehicle and held up the sign. He acknowledged seeing the word "stop" on the sign, but denied that he saw it to be a Fisheries sign or that he realised that Officer Wright was wearing a Fisheries uniform. He said that he drove off in panic having been confronted in that way at that time of night.

1. In his affidavit he said that he took saltwater nippers in excess of the prescribed limit to use as bait "to catch fish which I love doing as a pastime." He adhered to this in oral evidence, denying that he had been engaged in any way in a commercial enterprise.

1. The boat used by the defendant was owned by his wife, Ms Rima Rajab. An affidavit by her was read and she also gave oral evidence. She bought the boat and trailer in 2009 for $14,000, the money being part of her inheritance from her mother. She bought them because her husband had asked her to, so that he and their sons could go fishing.

1. Three days before the night of the offences, on 4 January 2010, Officer Chen wrote to Ms Rajab concerning the defendant's offence of 26 December 2009, in which the boat and trailer had been used. The purpose of the letter was to give her an understanding of the powers of Fisheries officers, particularly in relation to seizure of boats and vehicles. He pointed out that the 2009 offence was one which could have attracted the power of seizure under s 265 of the Act, and warned that Fisheries officers may have no option but to seize the boat and trailer if they were connected with any further fisheries offences.

1. The letter was sent by registered post, and was received by the post office in the area where the defendant and his family were then living. In her affidavit Ms Rajab said that she did not receive the letter "until a day or so" after the boat was seized by officers because of the present offences. In his affidavit the defendant deposed that he had not seen the letter "until shortly after" the boat was seized.

1. However, in oral evidence neither of them adhered to those statements. The plaintiff tendered a record of Australia Post which showed that the letter had been picked up by Ms Rajab on 6 January, the day before the offences. In oral evidence, Ms Rajab agreed that she had picked up the letter that day, and said that she had brought it to the defendant's attention the following day before he went out in the boat. He told her that he was going to get some nippers to go fishing during the school holidays, and that he was not going to sell them. In oral evidence, the defendant said that he did not remember whether the letter came to his attention before or after the boat was seized.

Forfeiture

1. The plaintiff seeks the forfeiture of the boat, its motor and its trailer. For the purpose of Pt 9 of the Act, dealing with enforcement, "boat" is defined to include any trailer used to transport it: s 240(1). Section 269(1) empowers a court to order the forfeiture of a boat used in connection with a fisheries offence of which a person has been convicted if the boat has been seized under the provisions of the Part. As noted above, the defendant's boat and trailer were seized pursuant to s 265 on the basis of a reasonable belief that they had been used by him while engaged in commercial fishing activities for the purpose of committing a forfeiture offence.

1. Section 241(1) defines "commercial fishing activities" as fishing activities for commercial purposes. By subs (2)(b) of that section, a person is presumed to be engaged in commercial fishing activities if he or she is in possession of a quantity of fish in excess of that permitted for a person who is not a commercial fisherman. The defendant is not a commercial fisherman. The term "fish" is defined broadly in s 5, and encompasses saltwater nippers. The effect of s 241(2) is that the defendant bears the burden of proving (on the balance of probabilities) that he was not engaged in commercial fishing activities at the relevant time.

1. I am not so satisfied. The quantity of nippers involved, some twenty times the permissible limit, tells strongly against that conclusion. So does the conversation he had with Officer Chen on the night in question to the effect, as summarised in the statement of facts, that he wished to help catch the bait and tackle shops that were allegedly buying the nippers from him. In his affidavit, which was read and not challenged, Officer Chen records the defendant as saying:

"Just let me catch the shops for you. I can catch them all. I'll put a camera on. ... I can catch them all. I will catch all the crooks."

In response to this, Officer Chen said, "You are one of the crooks." The defendant replied, "I admit I am a crook. I was pumping ... ."

1. Whether this part of the conversation amounts to an admission that he intended to sell the nippers he had obtained that night to bait shops, or that he had done so in the past, is unclear. Whatever was meant to be conveyed, the admission is significant for present purposes. On the whole of the evidence, I reject the defendant's account in this court that he obtained the nippers on the night in question only for the purpose of recreational fishing.

1. It is not in dispute that the boat was used in connection with the s 18(2) offence. I am satisfied that at the time of the offence the defendant was aware of Officer Chen's letter warning of the possibility of seizure of the boat in the event of any further fisheries offence. I have no doubt that it was for that reason that he sought to evade detection by driving off in the manner he did and that, after his apprehension, he pleaded with the officers not to seize the boat. As set out above, he has a history of fisheries offences, including offences of the same nature as those which bring him before this court.

1. If the defendant were the owner of the boat and trailer, it must be said that the prosecution would have made out a strong case for their forfeiture. Counsel for the defendant realistically acknowledged as much. However, the boat and trailer are the property of his wife. They can nonetheless be forfeited, but obviously that is a significant discretionary factor in determining whether such an order should be made. She purchased the boat and trailer for a significant sum of money from her own resources. True it is that they were bought at the request of the defendant and for his own purposes, but I accept her evidence in her affidavit that in her culture "the wife does as the husband asks, within reason." I also accept her evidence that on the night in question he told her no more than that he was going to obtain some saltwater nippers so the family could go fishing during the holidays, and that she did not anticipate that he was going to indulge in illegal activity.

1. In her affidavit Ms Rajab asks that the boat and trailer be returned to her, saying that she would demand an assurance from the defendant that he would comply with the law if he used them in the future. The effect of her oral evidence was that the family were not comfortably off and that she might sell the boat because she needed money to care for their three boys.

1. I accept the evidence of Ms Rajab. In these circumstances, I will not order that the boat and trailer be forfeited.

Penalty

1. I have already set out several of the factors relevant to penalty for these offences. The offence under s 18(2) of the Act was committed for financial gain by a man who was no stranger to offending of this kind. The gravamen of the offence, as explained in the statement of facts, is that possession limits are in place to ensure a fair share of fisheries resources amongst the community, and primarily to ensure that the stocks remain at a suitable level for future harvest. Commercial fisherman in the bait gathering industry pay annual licence and management fees, and the number of licences issued is limited. Behaviour such as the defendant's compromises the sustainability of that resource.

1. Considerations of deterrence, both general and personal, are significant. Given the defendant's history of offences of this kind, and his awareness that seizure of the boat and trailer could well result from any further offending, personal deterrence looms large. The offences under s 247(1) are serious, involving a determined attempt to prevent Fisheries officers from exercising their duty. While I accept that he did not intend to cause harm to any officer, his course of driving exposed them to danger, particularly in the case of Officer Wright.

1. My assessment of the defendant's expressions of remorse must be guarded. I do not accept that he did not understand who Officer Wright was when he was confronted at Gunnamatta Park, which is not consistent with the statement of facts. His counsel said at the outset of the proceedings, and confirmed towards the end of them, that there was no dispute with those facts. Of course, when people who have pleaded guilty to offences give evidence and are cross-examined, it is not uncommon for them to give a sanitised version of their conduct. Too much should not be read into evidence of that kind. Nevertheless, I am left with the impression that the defendant does not have a genuine insight into the significance of his offending and that his expressions of remorse were somewhat formulaic.

1. That said, the defendant can be in no doubt that any further offending will be detected and that its consequences could be very serious, both for him and for his family. The plaintiff accepts, and I agree, that the appropriate penalty in this case is a fine for each offence. That may not be the plaintiff's attitude, or the attitude of a court, should he have to be dealt with for a further offence.

1. The defendant gave evidence of the family's financial resources, although it was unsupported by any documentation. I accept that evidence, which was supported by that of his wife and which demonstrates that they are anything but affluent. Nevertheless, substantial fines must be imposed to recognise the seriousness of these offences. The utilitarian value of the defendant's pleas of guilty should also be recognised. But for those pleas, I would have imposed fines totalling $8,000. In the light of the pleas, the fines will total $6,000.

1. On the charge under s 18(2) of the Act, possessing a quantity of saltwater nippers in excess of the possession limit, the defendant is fined $2,500. On the first charge under s 247(1), resisting or obstructing a Fisheries officer in the exercise of his duty, he is fined $2,000. On the second charge under s 247(1), he is fined $1,500.

1. The defendant should have the opportunity to be heard on the terms of payment of those fines. The plaintiff seeks professional costs but, given that the proceedings were only partially successful, the parties should be heard on that issue also.

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Decision last updated: 23 December 2011