Isak v Garbellini

[2006] WASC 50

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   ISAK -v- GARBELLINI [2006] WASC 50

CORAM:   MCKECHNIE J

HEARD:   28 FEBRUARY 2006

DELIVERED          :   28 FEBRUARY 2006

FILE NO/S:   SJA 1123 of 2005

BETWEEN:   PITER ISAK

Appellant

AND

LESLIE PETER GARBELLINI
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE I G BROWN

File No  :PE 52901 of 2005, PE 52902 of 2005

Catchwords:

Criminal law and procedure - Sentence - Fishing without foreign fishing licence - Global fine - Whether excessive - Appeals - Reasonable prospects of success

Legislation:

Fisheries Management Act 1991 (WA)

Result:

Leave to appeal refused

Category:    A

Representation:

Counsel:

Appellant:     Mr D J McKenzie

Respondent:     Mr G T J Farley

Solicitors:

Appellant:     Legal Aid of Western Australia

Respondent:     Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Djou v Commonwealth Department of Fisheries [2004] WASCA 282

Samuels v State of Western Australia [2005] WASCA 193

Case(s) also cited:

Nil

1. MCKECHNIE J:  This is an application for leave to appeal.  I am grateful to the Commonwealth for responding to the application for leave to appeal so that I may deal with it today.  I stress that it is an application for leave to appeal, not the appeal itself.  Under the Criminal Appeals Act 2004 (WA) s 9 I can only grant leave if I am satisfied that the ground I am considering has reasonable prospects of success as described: Samuels v State of Western Australia [2005] WASCA 193. It is that test that I apply.

2. There are three grounds of appeal.  Ground 3 is abandoned.  That leaves grounds 1 and 2. 

Ground 1

"1.The Learned Magistrate erred in law by imposing sentences which were manifestly excessive in all the circumstances of the convictions, including that:

1.1the Appellant pleaded guilty at the first opportunity; and

1.2the Appellant had no capacity to pay the fine."

1. I do not consider there are reasonable prospects of success on the first particular.  Clearly the Court below took the plea of guilty into account.  I say that because that is what his Honour said he did.  The precise amount by which he took it into account was not identified.  I hesitate to apply any rough rule of thumb that may apply in relation to sentences of imprisonment to fines, but clearly a plea of guilty should always be taken into account and this one was.

2. As to the second particular, it appears the Magistrate was referred to Djou v Commonwealth Department of Fisheries [2004] WASCA 282. In that case Roberts‑Smith J set out at [48] a number of propositions he had distilled from the authorities. He noted at (7):

   "But where a fine is otherwise properly imposed, immediate imprisonment in default of payment may be ordered even though it is known that the offender will serve a default term by reason of his not being permitted to be in the jurisdiction in order to pay the fine by other means."

3. I am not satisfied that ground 1.2 has reasonable prospects of success.  The Magistrate carefully directed himself to the various issues that relate to the imposition of a fine and I detect no error as asserted in ground 1.

Ground 2

"2.The Learned Magistrate erred in law by imposing a penalty well above the usual sentencing range."

1. This was the applicant's fourth offence.  The fine imposed was a very high fine indeed when compared with some of the fines detailed in Djou.  When a sentence or a fine is above or below the range of penalties commonly imposed for offences of that nature attention needs to be given as to whether there is an explanation as to why it falls outside the range.  The mere fact that it falls outside the range is not a basis for appeal, but the fact that it falls outside of the range without any reasonable explanation may enable an appellate Court to infer error on the part of the sentencing Court in imposing a sentence which is manifestly excessive or inadequate as the case may be.

2. The Magistrate noted the convictions in Darwin in 1998, in Broome in 2000 and in Broome again in 2002.  The appellant had been the captain of a fishing boat on each of the last three occasions and was acting in the same capacity again when apprehended for these offences.  The Magistrate noted the maximum fine is $55,000 and that this was a fourth offence.  In my view, he also took into account the need for general deterrence because he said that the fine may convey the message that this country regards illegal fishing as a serious offence.  He concluded by saying:

   "In any event, I'm satisfied that that's the appropriate disposition, even allowing for a plea of guilty and I have allowed for that in fixing the figure of $30,000."

3. In my opinion, there is an explanation by the Magistrate as to why the fine was imposed.  I would have to agree that the fine is beyond the range of sentences normally imposed but there is a reasonable and very clear explanation for that.  There are no reasonable prospects of showing that the Magistrate erred in law in imposing such a penalty.  I would refuse leave to appeal on both grounds.