Gazeley v Segers
[2006] WASC 76
GAZELEY -v- SEGERS [2006] WASC 76
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 76 | |
| Case No: | SJA:1006/2006 | 8 FEBRUARY 2006 | |
| Coram: | BLAXELL J | 8/05/06 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | PETER ROBERT GAZELEY GERARDUS HENDRIKUS THEODORUS SEGERS |
Catchwords: | Fish and fisheries Offences of possessing "totally protected fish" and rock lobster tails Imposition of fines together with mandatory additional penalties based on value of fish Whether sentences manifestly excessive |
Legislation: | Fish Resources Management Act 1994 (WA), s 46, s 52, s 222 Fish Resources Management Regulations 1995 (WA), reg 10, reg 35 and Sch 2 |
Case References: | Chan (1989) 38 A Crim R 337 Dinsdale v The Queen (2000) 202 CLR 321 House v The King (1936) 55 CLR 499 Lowndes v The Queen (1999) 195 CLR 665 Comptroller-General of Customs v Wong (1998) 103 A Crim R 491 Czarniak (1995) 79 A Crim R 143 Ealing v Breedon, unreported; SCt of WA (Owen J); Library No 940373; 11 April 1994 Pearce v Stanton [1984] WAR 359 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Appellant
AND
GERARDUS HENDRIKUS THEODORUS SEGERS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE T J MCINTYRE
Citation : SEGERS v GAZELEY
File No : MO 112 of 2005, MO 113 of 2005
Catchwords:
Fish and fisheries - Offences of possessing "totally protected fish" and rock lobster tails - Imposition of fines together with mandatory additional penalties based on value of fish - Whether sentences manifestly excessive
(Page 2)
Legislation:
Fish Resources Management Act 1994 (WA), s 46, s 52, s 222
Fish Resources Management Regulations 1995 (WA), reg 10, reg 35 and Sch 2
Result:
Application for leave to appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr M J Bowden
Respondent : Mr S M Murphy
Solicitors:
Appellant : Cannon Bowden & Co
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Chan (1989) 38 A Crim R 337
Dinsdale v The Queen (2000) 202 CLR 321
House v The King (1936) 55 CLR 499
Lowndes v The Queen (1999) 195 CLR 665
Case(s) also cited:
Comptroller-General of Customs v Wong (1998) 103 A Crim R 491
Czarniak (1995) 79 A Crim R 143
Ealing v Breedon, unreported; SCt of WA (Owen J); Library No 940373; 11 April 1994
Pearce v Stanton [1984] WAR 359
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1 BLAXELL J: This is an application for leave to appeal from sentences imposed in the Magistrates Court at Moora on 12 December 2005 following the appellant's convictions for offences contrary to the Fish Resources Management Act 1994 (WA) ("the Act") and the Fish Resources Management Regulations 1995 ("the Regulations"). Those offences were as follows:
"1. On 25th June 2003 having in his possession totally protected fish, namely 3 setose western rock lobster and 26 rock lobster tails of a weight less than 140 grams; contrary to sections 46(b), 52 and 222 of the Act.
2. On 25th June 2003, without authorisation, having in his possession part only of a rock lobster, namely 77 rock lobster tails; contrary to regulation 35 and section 222 of the Act."
2 As a first offender the appellant was liable to a maximum fine of $5000 in respect of each offence by way of a "general penalty" (under s 52 of the Act). The court was also required to impose a mandatory "additional penalty" (under s 222 of the Act) by reference to either the weight of the fish or to the number of fish. In the particular circumstances of the case this meant that the total additional penalty had to be either $4700 (by weight) or $15,900 (by number).
3 In the end the court imposed a fine of $1000 in respect of each offence, and a total additional penalty (by reference to the number of fish) of $15,900. The appellant seeks leave to appeal on the basis that these penalties were manifestly excessive.
The facts of the offences
4 On 25 June 2003 Jurien Bay police officers executed a search warrant concerning an unrelated matter at the home of the appellant in Cervantes. Upon searching the kitchen, 26 cooked and individually wrapped rock lobster tails were located in the freezer, and the appellant advised that he had more in a large chest freezer in the laundry. A search of the laundry chest freezer located 80 more rock lobster tails wrapped in clear plastic, on plastic trays of 10 per tray.
5 The appellant admitted that the rock lobster tails were his, and the 106 tails were then seized by the police officers exercising their powers as fisheries officers. Upon subsequent examination, it was found that three of the tails were from setose Western Rock Lobster (namely breeding
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- females) and 26 were underweight (being less than the 140 grams prescribed in the Regulations). The 26 underweight tails ranged in weight from 110 grams to 139 grams with an average weight of 130.73 grams.
6 The setose and underweight rock lobster tails were all "totally protected fish" within the meaning of the Act and Regulations, and their possession by the appellant constituted the first offence.
7 The second offence was committed as a result of the appellant's possession of the remaining 77 rock lobster tails. In this regard it is an offence to possess a part only of a rock lobster unless such possession occurs in circumstances authorised or excused under reg 35 (none of which applied in the present case).
The proceedings in the Magistrates Court
8 The appellant initially pleaded not guilty to the two charges against him and the matters were eventually listed for hearing on 12 December 2005. However, after giving notice to the prosecution on 6 December, the appellant entered late pleas of guilty.
9 During the course of the plea in mitigation the court was informed that the appellant was 47 years of age, and married with one teenage child. He had been in the fishing industry since leaving school, his father was a fisherman before him, and he had married the daughter of a fisherman. He had been skippering vessels for approximately 13 years and held a professional licence for 93 or 94 pots. He had no prior record of offences whatsoever.
10 Counsel for the appellant also told the court that there was "simply no excuse" for possessing the setose and underweight tails the subject of the first charge. In this regard he had relied upon his crew to gauge the tails and normally checked them himself, but obviously had not done so "as thoroughly as he should". The presiding Magistrate then asked, if this was so, why the offending tails had ended up in the appellant's freezer and not his catch. Counsel's response to this question was "I don't know".
11 The court was also told that the appellant had kept the lobster tails for private consumption but not immediate consumption. His Honour then asked: "He just likes to keep his crayfish neat by putting them in packs of 10, does he, or not?" and counsel responded: "Well, what can I say?".
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12 In imposing the penalties for the offences, his Honour gave the following reasons for decision:
"Mr Gazeley is a professional fisherman of many years standing. I've made a comment about general knowledge in the crayfishing industry, I'm entitled to do so, in one sense of the word, any professional crayfisherman knows, if he has 77 cray tails in his freezer and someone finds out, he's in a bit of trouble.
I'll take into account what's been said, I'll take into account the fact he's got no prior history, after many years in the industry, and I'll take into account that the 77 tails were not underweight or otherwise, so it's not as though he's been found in a situation where it's as bad as it could have been; for example, they could have all been underweight, they could have all been setose and so on.
So bearing in mind that the maximum penalty is $5000 with respect to each, I'll be imposing an appropriate fine. The only question for me is the mandatory minimum penalties, why it is that there'd be a differentiation is beyond me, in one sense of the word, because if I impose a penalty with respect to weight, it's only $4700; if I impose a penalty with respect to numbers, it's $15,900. I mean, that creates a bit of a quandary for me, but these issues need to be balanced, with the knowledge that the crayfishing industry is a very highly regulated industry, both for the protection of those who are in it, and for the protection of the resource itself. It's an issue that's constantly in the mind of fishermen and people associated with the industry.
So I'm satisfied that I need to impose penalties that do act as a deterrent because it is an industry where if there's people who wish to get around the rules, they're capable of doing so, and so it is important, I think, that I impose penalties that truly act as a deterrent because of the fact that such a highly regulated industry, most people in the industry will find out at some point in time what happened to Mr Gazeley because fishermen are notorious gossips.
All right, just to bring the threads together: the accused is a fisherman of long standing, he knows precisely what the rules are, there's been a substantial breach, both with respect to the
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- possession of the 3 setose and the 26 undersized - - or underweight tails. And, as I've said earlier, to have 77 processed tails in your possession, if that's the right word, is a clear breach of the rules, in a situation where, Mr Gazeley, as I say, is well aware of the rules. It's important that the court impose penalties that reflect the need for deterrence, and with that in mind, there's a fine with respect to the first matter of $1500 with costs of $825.42.
The additional penalty will be applied on that complaint, and it is with respect to numbers rather than weight, because, in my view, if I was to select the lesser of the two additional penalties, it would not send the appropriate deterrent message, and there's a fine of $1500 with respect to the second matter. That makes it quite an expensive breach, but the rules are there, and the rules are known. Thank you."
13 Shortly afterwards his Honour indicated that he had made an error in calculating the general penalties and he substituted fines of $1000 instead of $1500.
The grounds of appeal
14 The appellant applies for leave to appeal against these penalties on the following grounds:
"1. The Learned Sentencing Magistrate imposed a sentence (the additional penalty) which was manifestly excessive in all the circumstances of the offence and the offender.
Particulars
1.1 The Learned Sentencing Magistrate failed to give sufficient weight to:
a) the absence of criminal record or prior convictions for Fisheries Act offences.
b) The Applicant's plea of guilty and co-operation.
2. The Learned Sentencing Magistrate erred in the exercise of his discretion by failing to give the Applicant any credit for his plea of guilty.
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- 3. The Learned Sentencing Magistrate erred in law in the exercise of his discretion in that he failed to take into account the totality principle in the imposition of the fine plus additional penalties resulted in the imposition of a penalty which far exceeded that which was normally imposed for like offences.
4. The Learned Sentencing Magistrate erred in law in that he placed excess reliance on the sentencing considerations of general and specific deterrence to the exclusion of other factors.
5. The Learned Sentencing Magistrate erred in law in imposing an additional penalty calculated on the number of rock lobster rather than the weight of rock lobster thereby producing an additional penalty of approximately $15,000.00 as opposed to approximately $4,700.00 thus resulting in the imposition of a penalty which far exceeded that which was normally imposed for like offences, particularly in view of the fact that the Prosecution were not calling for the imposition of an additional penalty based on the number of rock lobster as opposed to the weight."
The principles governing the application for leave
15 A person aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court on the limited grounds set out in s 8 of the Criminal Appeals Act 2004. Relevant to the present matter, those grounds are that the court below made an error of law or fact (or both) or imposed a sentence that was excessive. Pursuant to s 9 of that Act leave is required for each ground of appeal, and such leave can only be given if this Court is satisfied that the ground has a reasonable prospect of succeeding.
16 The prospects for success of a ground of appeal against sentence obviously need to be measured against the principles that apply to all such appeals. In this regard, the appeal is from the exercise of a judicial discretion, and the court cannot substitute its own opinion for that of the court below simply because it would have exercised its discretion in a different way (Lowndes v The Queen (1999) 195 CLR 665, 672). A ground of appeal based upon an error of law or fact will only succeed if it is shown that the sentencing court acted upon a wrong principle, took into account extraneous or irrelevant matters, made a mistake of fact, or failed
(Page 8)
- to take account of some material considerations. When any of these circumstances are established the decision of the sentencing court is reviewed and this Court can exercise and substitute its own discretion (House v The King (1936) 55 CLR 499, 505).
17 House is also authority for the proposition that an appellate court may review and substitute its own discretion for a sentence that is "unreasonable or plainly unjust". In such a case, although the nature of the error might not be discoverable, it can be inferred that the sentencing discretion has miscarried and that a substantial wrong has occurred.
18 The usual formulation of this last principle is that an appellate court will interfere with a sentence that is "manifestly inadequate or excessive". However, this formulation has been abbreviated in s 8(1)(a)(iii) of the Criminal Appeals Act 2004 which allows an appeal from a sentence that is simply "inadequate or excessive". However, nothing turns upon this. As was said by Gleeson CJ and Hayne J in Dinsdale v The Queen (2000) 202 CLR 321, at 325:
"Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion."
19 In determining whether a sentence is excessive, it must be looked at from the perspective of the maximum sentence prescribed, the standards of sentencing customarily observed for that offence, the place which the offending conduct occupies in the scale of seriousness for offences of that type, and the personal circumstances of the offender (Chan (1989) 38 A Crim R 337, 342).
20 In applying the above principles to the present matter, it must be remembered that the sentencing discretion as to the additional penalty was
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- an unusual one. The imposition of the "general penalty" involved the Magistrate arriving at a fine within a range in the usual way. However, the mandatory imposition of the "additional penalty" involved the exercise of a limited discretion to choose between only two alternatives.
The prospects of the appeal succeeding
21 The grounds of appeal have been framed in such a way that they need to be considered together, and I propose to assess the prospects for success of the appeal as a whole.
22 In essence, the grounds of appeal contend that the imposition of the greater "additional penalty" resulted in an overall sentence that was manifestly excessive. It is said that by exercising the sentencing discretion in this way, the Magistrate failed to give sufficient weight to mitigating factors and disregarded the principle of totality. There was also excess reliance on the need for general and specific deterrence, resulting in a penalty which far exceeded that which was normally imposed for like offences.
23 The appropriate starting point in assessing the prospects of each of these grounds of appeal is the legislation itself. The Act has the fundamental purpose of protecting a very limited natural resource, and s 3 includes the following objects:
"(a) to conserve fish and to protect their environment;
(b) to ensure that the exploitation of fish resources is carried out in a sustainable manner;
...
(d) to foster the development of commercial and recreational fishing ...
(e) to achieve the optimum economic, social and other benefits from the use of fish resources;
(f) to enable the allocation of fish resources between users of those resources; "
24 In order to achieve these objects the Act and Regulations prescribe a highly regulated system of fishery management plans, fishing zones, protected fish, protected fish habitat areas, and various categories of licences. These provisions are clearly designed to protect not only the
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- fisheries resource itself but also the rights of licence holders (including the appellant) who have access to that resource.
25 As can be expected, the Act contains numerous penal provisions. Relevant to the first of the appellant's offences, it is an offence under s 46 to possess "totally protected fish". Regulation 10 and Pt 2 of Sch 2 to the Regulations list totally protected fish and these include setose western rock lobster caught from certain waters and rock lobster tail weighing less than 140 grams. ("Setose" is essentially a breeding female rock lobster which is recognisable by fine hair-like filaments on its underside.)
26 With respect to the appellant's second offence, reg 35 makes it an offence to possess part only of a rock lobster (other than in certain specified circumstances that do not apply in the present instance). It is relevant to note that rock lobsters which are shorter or longer than a particular range of lengths (as measured along the carapace) are also "totally protected fish". It follows that reg 35 is intended to prevent the removal of that part of a lobster that enables its length to be determined.
27 The Act and Regulations prescribe the same penalties for each of the appellant's offences. In each instance there is a general penalty of a fine not exceeding $5000 together with an additional penalty pursuant to s 222. In this regard, s 222 provides:
"222. Additional penalty based on value of fish
(1) ...
(2) If a court convicts a person of an offence to which this section applies the court must, in addition to any general penalty imposed in respect of the offence, impose on the person an additional penalty equal to 10 times the prescribed value of any fish the subject of the offence.
(3) A court may determine the prescribed value of any fish the subject of the offence by reference to either the weight of the fish or the number of fish.
(4) A court is to determine the prescribed value of any fish the subject of the offence -
(a) if the court is determining the value of the fish by reference to the weight of the fish, by
- multiplying the weight by the value per unit of weight prescribed in respect of fish of that class; and
- (b) if the court is determining the value of the fish by reference to the number of fish, by multiplying the number by the value per fish prescribed in respect of fish of that class.
- (5) The additional penalty referred to in subsection (2) is irreducible in mitigation despite the provisions of any other Act.
(6) ... "
28 So far as I am aware s 222 has not been the subject of any previous appeal, and I do not have any materials to indicate any customary standards of sentencing. However, I am informed from the Bar table that in most cases there is little variation between an additional penalty by weight and an additional penalty by number. The reason for the significant variation in the present instance is that the appellant possessed only the tails of rock lobsters, and thus a substantial proportion of their weight had been removed.
29 As to the place that the appellant's offences occupy in the scale of seriousness, there are some obvious aggravating features present. He was a professional licensed fisherman who was well aware of the regulatory regime under the Act, and his livelihood depended upon a general observance of the rules that he himself breached. The offences did not occur spontaneously or as a result of oversight, but involved obvious premeditation and planning. In this regard, the tails were not only removed from the rock lobsters but they were either individually wrapped in cellophane or neatly packed into trays of 10 tails and then wrapped in clear plastic.
30 Concurrently with this situation three of the rock lobster tails were setose and 26 of them were underweight. Given the appellant's long experience as a fisherman and the particular circumstances referred to above, it is a compelling inference that, at the very least, he was recklessly indifferent to his possession of tails with these offending characteristics.
31 The sentencing Magistrate rightly had regard to the need for personal and general deterrence when arriving at the appropriate penalties for the offences. Offences of this type almost always occur out of sight and with
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- very little risk of apprehension. In this regard professional fishermen are particularly well placed to commit such offences without arousing suspicion. Although the Act provides for fisheries officers to police the regulations they face the daunting task of patrolling vast areas of sea and a very lengthy coastline. Therefore it is not surprising that the present offences only came to light as a result of police officers executing a search warrant in an unrelated matter.
32 Nevertheless, there were also some mitigating factors present. The appellant did not have any prior criminal record or convictions for offences under the Act. He also pleaded guilty to the offences, although, of course, those pleas did come rather late.
33 I understand that the appellant does not take issue with the quantum of the $1000 fines imposed by way of general penalties. Given that a maximum $5000 general penalty was available to the court, fines of $1000 were obviously within the appropriate range.
34 If leave to appeal is granted, the essential issue will be whether the additional penalty of $15,900 (either on its own, or in combination with the general penalties) was manifestly excessive. This issue will need to be determined on the basis that the only alternative disposition open to the Magistrate was to substitute an additional penalty of $4700.
35 It is submitted on behalf of the appellant that the overall penalties were manifestly excessive simply because they amounted to approximately 70 per cent of the maximum possible. (Viz. 70 per cent of what would have been the total penalties if the maximum fines of $5000 had been imposed.)
36 If one was to accept this proposition and follow it through to its logical conclusion, it would mean that in any circumstances similar to the present, a first offender could never be subjected to the greater of the alternative additional penalties. No matter how low the general penalty, the greater of the additional penalties would be disproportionate and would render the total outcome manifestly excessive.
37 To my mind such a proposition is contrary to the general scheme of the Act. The Act provides for two separate penalties to be imposed upon a convicted offender. The first penalty is the "general penalty" under s 52 and it is to be a fine with a maximum which increases for second and subsequent offenders. The second penalty is the "additional penalty" under s 222 and this is to be "equal to 10 times the prescribed value" of the offending fish. The same additional penalty applies regardless of
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- whether it is a first or subsequent offence, and it is required to be 10 times the value of the illicit catch. The only residual discretion left to the court is to decide whether that prescribed value should be determined by weight or by number.
38 It is also clear from subs 222(2) that the additional penalty equal to 10 times the value of the fish is mandatory and "must" be imposed. Furthermore, subs (5) provides that the additional penalty is "irreducible in mitigation despite the provisions of any other Act". Accordingly, mitigatory considerations are not to be taken into account, and alternative dispositions under the Sentencing Act are not available. The essential task of the court is to determine which of the alternative methods of calculation best represents the value of the fish.
39 In the present case, the fish in question were only the tails of rock lobsters, and most of the weight of those rock lobsters had been removed. In my view, this was a fairly compelling circumstance which made it almost inevitable that the Magistrate should have exercised his discretion in the way that he did. To have done otherwise would have allowed the appellant the benefit of stripping each lobster of its head and effectively provided him with a credit for his offending conduct. Such an outcome would have been inconsistent with the clear intention of s 222 that there be an additional penalty based upon value.
40 The Magistrate properly took into account all relevant factors in determining the general penalties, and in my view also arrived at the correct disposition in respect of the additional penalty. I am not persuaded that any ground of appeal has a reasonable prospect of success, and the application for leave will accordingly be dismissed.
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