H Stanke & Sons Pty Ltd v Parkes - [2010] SASC 263

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
H STANKE & SONS PTY LTD v PARKES
[2010] SASC 263
Judgment of The Honourable Justice White
9 September 2010
PRIMARY INDUSTRY - FISH - OFFENCES - OTHER OFFENCES
CORPORATIONS - MANAGEMENT AND ADMINISTRATION - AUTHORITY, RIGHTS AND POWERS OF OFFICERS OF CORPORATION - AUTHORITY - OF DIRECTORS
The appellant, a corporation, held a licence to fish for rock lobsters, which was sub-licensed to a family trust - an employee of the trust failed to comply with regulations imposing reporting obligations on the employee and the appellant - the appellant appealed against the recording of convictions contending that: all reasonable steps had been taken by the appellant to ensure compliance with the Regulations; knowledge which led to a charge being aggravated was improperly attributed to the company; and the effect of the recording of convictions on its arrangement with its financier constituted extenuating circumstances warranting the Court refraining from recording convictions.
Held: the learned Magistrate had not erred in recording convictions - whilst knowledge was inappropriately attributed to the company, this did not effect the appropriateness of recording convictions - no sufficient extenuating circumstances existed.
Fisheries Management Act 2007 (SA) s 70; Fisheries Management (Rock Lobster Fishers) Regulations 2006 reg 22, reg 23, referred to.
R v Reiner (1974) 8 SASR 102; R v Godfrey (1993) 69 A Crim R 318; R v D (1997) SASR 413; Markarian v The Queen (2005) 228 CLR 357; Hemming v Lukin (1996) 67 SASR 248; Hemming v Neave (1989) 51 SASR 427; Piva v Brinkworth (1992) 59 SASR 92; City of Salisbury v Ahrens Group Pty Ltd [2010] SASC 254; Hemming v Mundy (2001) 213 LSJS 453; Lamattina v Gould (2009) 103 SASR 587; State of New South Wales v Fahy (2007) 232 CLR 486; Tesco Supermarkets Ltd v Nattrass [1972] AC 153; JC Houghton & Co v Nothard, Lowe and Wills Ltd [1928] AC 1; Beach Petroleum NL v Johnson (1993) 43 FCR 1; Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500; Farrow Finance Co Ltd (in liq) v Farrow Properties Pty Ltd (in liq) (1997) 26 ACSR 544; Director of Public Prosecutions Reference No 1 of 1996 (1998) 3 VR 352; Director-General, Department of Education and Training v MT [2006] NSWCA 270; AAPT v Cable Wireless Optus Ltd [1999] NSWSC 509; North Sydney Council v Roman [2007] NSWCA 27; Chappell v A Ross & Sons Pty Ltd [1969] VR 376; R v Olbrich (1999) 199 CLR 270, considered.

H STANKE & SONS PTY LTD v PARKES
[2010] SASC 263
Magistrates Appeal

WHITE J: The fishing for rock lobster in the Southern Zone Rock Lobster Fishery in South Australia is heavily regulated. Amongst other things, commercial fishers must be licensed, use only a registered boat skippered by a registered master, use no more than the number of pots authorised…

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.

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Details

Case: [2010] SASC 263
Decision Date: 9 September 2010

CaseChat Overview and Summary

In the matter of H Stanke & Sons Pty Ltd v Parkes, the appellant, a corporation licensed to fish for rock lobsters, contested the recording of convictions against it after it was found to have contravened certain regulations. The dispute arose from instances where an employee of a family trust, which held a sub-licence from the appellant, failed to comply with reporting obligations under the Fisheries Management Act. The appellant argued that it had taken all reasonable steps to ensure compliance with the relevant regulations, that knowledge leading to charges was improperly attributed to the company, and that the consequences of the convictions on its financial arrangements warranted the court refraining from recording convictions.

The court had to determine whether the magistrate correctly recorded the convictions against the appellant, despite the arguments that all reasonable steps had been taken to ensure compliance, improper attribution of knowledge, and extenuating circumstances. The court considered whether the appellant had indeed taken reasonable steps to ensure compliance, the appropriateness of attributing knowledge to the appellant, and whether there were sufficient extenuating circumstances to justify not recording the convictions.

The court found that while there were procedural errors in attributing knowledge to the company, these did not negate the validity of the convictions. The appellant had failed to take reasonable steps to ensure compliance post-warning, and the extenuating circumstances presented were insufficient to warrant the court refraining from recording convictions. The court upheld the magistrate's decision, confirming that the convictions were appropriately recorded.

The court's decision resulted in the affirmation of the convictions against H Stanke & Sons Pty Ltd, rejecting the arguments presented by the appellant and upholding the penalties imposed.

Orders

Orders of the court

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Background

Background to the litigation

Another matter to note is that the obligation imposed on the licence holder or the registered master by sub-reg (1) is that they “must ensure” that the prior report is made. Neither the licence holder nor the registered master is obliged to make the report in person. They are obliged only to ensure that a prior report is made by someone by no later than the prescribed time, and giving the prescribed information.Background Circumstances For many years members of the von Stanke family have engaged in the business of rock lobster fishing from Carpenter Rocks. Initially, three brothers (Fred, Jack and Bob) carried on business in partnership but, in 1965, the appellant and another company (Cape Banks Processing Company Pty Ltd (CBP)) were incorporated. Since 1990, the appellant and CBP have carried on business in partnership under the name “Stanke Ociana Seafoods”. The Boards of Directors of the appellant and CBP are identical. Each Board contains seven persons, five of whom are sons of one or other of Fred, Jack and Bob, one of whom is a grandson of Fred and one of whom is, as I understand it, a non-family member. Two of the directors are John von Stanke and his cousin Ian von Stanke (Ian). The business of the appellant and CBP includes the ownership and use of seven rock lobster fishing licences and the ownership and operation of a rock lobster processing plant at Carpenter Rocks. This plant employs approximately 55 people, many of whom are also members of the von Stanke family. The appellant sub-licences its fishing licences to members of the von Stanke family. A sub-licence in respect of licence No S207 has been granted to a family trust of which Ian is the sole trustee. In the 2007‑08 fishing season (which included May 2008), Ian employed his son Jamahl and a deckhand to use the sub-licence on a boat named “Indian Breeze owned by the family trust. As at May 2008, Jamahl had been a rock lobster fisherman for approximately 17 years, and had held a master’s licence for about eight years. On each of 11 and 12 May 2008, Jamahl was detected using the Indian Breeze to fish for rock lobster in a protected sanctuary. These were contraventions of s 70 of the Fisheries Management Act. In addition, Fisheries Officers noted that, although the Indian Breeze had landed rock lobster at Robe on each day in the period from 3 to 5 May 2008 (both dates inclusive), and in the period 7 to 14 May 2008 (both dates inclusive) there had been no compliance with the prior reporting obligation on those days. In 10 cases, there had been no prior report at all. On the remaining day, there had been a prior report, but this was only 11 minutes before the lobster catch was landed. Two Fisheries Officers interviewed Jamahl on 20 May 2008. Jamahl said that he understood that he was required to ensure the making of a prior report in May 2008 only if he landed before 10.00 am or after 4.00 pm. For the reasons given earlier, this was a mistaken understanding. The Fisheries Officers reminded Jamahl that a prior report was necessary in respect of all landings of rock lobster during the month of May, and reminded him of the “One on One” discussions which he had had with a Fisheries Officer at Carpenter Rocks on 27 September 2007 in which, amongst other things, the prior reporting obligation had been discussed.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The appellant was charged with only three of the 15 contraventions of the prior reporting obligation outlined above. Jamahl was charged on the same information with two contraventions of s 70 of the Fisheries Management Act. He pleaded guilty to those offences and was sentenced by the Magistrate at the same time as the appellant. It was not suggested that the sentence imposed on Jamahl was in any way relevant to the sentencing of the appellant.The Magistrate’s Decision The Magistrate noted first that each of the offences occurred as part of a course of conduct, and that the three counts were said to be representative. The appellant was, of course, to be sentenced only for the offences to which it had pleaded guilty and was not to be punished for the uncharged conduct.[1] However, the appellant was not entitled to any leniency on the basis that the offences were isolated instances of non‑compliance.[1] R v Reiner (1974) 8 SASR 102 at 105; R v Godfrey (1993) 69 A Crim R 318 at 322-3; R v D [1997] SASC 6350; (1997) 69 SASR 413 at 419. The Magistrate regarded the appellant’s conduct in relation to the offences committed on 27 May 2008 as being more culpable than its conduct in relation to the offences committed on 9 and 14 May 2008. This was because the offence on 27 May 2008 was committed after both Jamahl and Ian had been interviewed by the Fisheries Officers, and after Ian’s assurance that he would make sure that Jamahl complied with his prior reporting obligations. In this respect, the Magistrate noted that Ian participated in the interview in his capacity as a director of the appellant and, accordingly, that his knowledge of Jamahl’s conduct derived from the meeting was to be attributed to the appellant. The Magistrate said that the third offence had to be considered separately from the first and second. The Magistrate took into account in the appellant’s favour in relation to the offences of 9 and 14 May 2008 the steps which the appellant had taken before May 2008 to ensure compliance by sub-licensees and their boat masters with applicable legislative and regulatory requirements. I will refer to these previous steps in more detail shortly. However, because the appellant, despite being aware through Ian of Jamahl’s previous non-compliance, had done nothing after 20 May 2008 to ensure his compliance, the Magistrate was not prepared to attach much mitigatory significance to the previous steps taken by the appellant when sentencing for the third offence. In respect of this offence, the Magistrate sentenced on the basis that the appellant had not taken real or reasonable steps to prevent non-compliance.Section 16 of the CLSA Section 16 of the CLSA provides:Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion—(a) that the defendant is unlikely to commit such an offence again; and(b) that, having regard to—(i) the character, antecedents, age or physical or mental condition of the defendant; or(ii) the fact that the offence was trifling; or(iii) any other extenuating circumstances,good reason exists for not recording a conviction, the court may impose the penalty without recording a conviction.

Ratio Decidendi

Legal Principle Established

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