GAZELEY -v- SEGERS [2006] WASC 76

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 76
Case No:	SJA:1006/2006	Heard:	8 FEBRUARY 2006
Coram:	BLAXELL J	Delivered:	8/05/06
No of pages:	13	Judgment Part:	1 of 1
Result:	Application for leave to appeal dismissed
Category:	B
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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

CITATION : GAZELEY -v- SEGERS [2006] WASC 76 CORAM : BLAXELL J HEARD : 8 FEBRUARY 2006 DELIVERED : 8 MAY 2006 FILE NO/S : SJA 1006 of 2006 BETWEEN : PETER ROBERT GAZELEY

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

(Page 3)

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…

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 Gazeley v Segers

Details

AGLC: Gazeley v Segers [2006] WASC 76
Case: [2006] WASC 76
Decision Date

CaseChat Overview and Summary

In this case, the appellant, Peter Robert Gazeley, sought leave to appeal against the penalties imposed by the Magistrates Court for possessing totally protected fish and rock lobster tails in contravention of the Fish Resources Management Act 1994 (WA) and Fish Resources Management Regulations 1995. The appeal focused on whether the penalties, particularly the mandatory additional penalties based on the number of fish, were manifestly excessive. The appellant argued that the Magistrate failed to adequately consider mitigating factors, erred in not giving credit for his guilty plea, and placed excessive reliance on deterrence.

The court considered the principles governing appeals against sentence, emphasising that the appeal court cannot substitute its own discretion for that of the sentencing court unless there was an error of law, a mistake of fact, or a failure to take account of material considerations. The court noted that the Act was designed to protect a limited natural resource and that the offences involved deliberate and premeditated breaches by a professional fisherman well-versed in the regulatory regime. The court held that the Magistrate had properly exercised his discretion in imposing the additional penalty, considering the unique circumstances where the fish in question were only the tails of rock lobsters, and that to have done otherwise would have been inconsistent with the mandatory requirements of the Act. The court concluded that the appeal did not have a reasonable prospect of success and dismissed the application for leave to appeal.

Orders