Lochiel South Pty Ltd v NSW Department of Trade and Investment, Regional Infrastructure and Services: Lavalle v NSW Department of Trade and Investment, Regional Infrastructure and Services

[2019] NSWDC 22

District Court

New South Wales

Medium Neutral Citation:	Lochiel South Pty Ltd v NSW Department of Trade and Investment, Regional Infrastructure and Services: Lavalle v NSW Department of Trade and Investment, Regional Infrastructure and Services [2019] NSWDC 22
Hearing dates:	24 September 2018, 25 September 2018, 26 September 2018, 27 September 2018
Date of orders:	22 February 2019
Decision date:	22 February 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Lochiel South Pty Ltd Conviction Appeal dismissed. Sentence appeal dismissed - all orders of Local Court confirmed. Appeal against Costs order - appeal dismissed - all orders of Local Court confirmed. Appeal against Forfeiture order- appeal dismissed - all orders of Local Court confirmed. Tory Lavalle Conviction Appeal dismissed. Sentence appeal dismissed - all orders of Local Court confirmed. Appeal against Costs order - appeal dismissed - all orders of Local Court confirmed.
Catchwords:	SENTENCE APPEAL – Fisheries prosecution – Eastern rock lobster a premium table species – breaches by nominated fisher of Fisheries Management Plan – fisher – strict liability of employer – imputed liability – specific offences by employer shareholder – honest and reasonable mistake – proof of honest and reasonable mistake – imputations from answers to questions – statutory requirement of shareholder to answer questions and provide documents – contravention of Management Plan proved – sale of untagged Eastern rock lobster – shareholder knowingly permit contravention proved – review of sentence – fines – accumulation – statutory limit – maximum fine­ – share management fishery – costs – forfeiture orders. APPEAL AND REVIEW – Error by Magistrate asserted – submissions not made in Local Court – concessions made in Local Court now withdrawn – no issue estoppel – prosecutor’s obligations – evidence on sentence not admissible in conviction appeal. ENVIRONMENT AND PLANNING – regulation of commercial fishing – contravention of regulation – obligations of shareholder in share management plan – forfeiture of shares. WORDS OR PHRASE – fishery – share management Plan – shareholder – knowingly permit.
Legislation Cited:	Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 District Court Act 1973 Evidence Act 1995 Fisheries Management Act 1994 Fisheries Management (General) Regulation 2010 Fisheries Management (Lobster Share Management Plan) Regulation 2000
Cases Cited:	Andrew v Ardler [2012] NSWSC 845 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; 254 FCR 68 Boujaoude v R [2008] NSWCCA 35 Charara v R (2006) 164 A Crim R 39 CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440 Director of Public Prosecutions v AG (NSW) [2015] NSWCA 218 Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227 Doja v R [2009] NSW CCA 303 DPP v Barnes [2006] NSW CCA 246 Dyason v Butterworth [2015] NSWCA 52 Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 Fox v Percy (2003) 214 CLR 118 Gianoutis v Glykis (2006) 65 NSWLR 539 Hardt v Environmental Protection Authority [2007] NSWCCA 338 He Kaw The v The Queen [1985] HCA 43; (1985) 157 CLR 52 Hillier v The Queen (2007) 228 CLR 618 Ignatov v R [2018] NSWCCA 217 Johnson v The Queen (2004) 78 ALJ R 616 JT v R [2012] NSWCCA 133 Knaggs v R [2007] NSWCCA 83 Markarian v The Queen (2005) CLR 357 Mill v The Queen [1988] HCA 70; 166 CLR 59 Mousell Brothers Ltd v London and North-Western Railway: Co; The King and The Minister for Customs v Australasian Films and Another (1921) 29 CLR 195 NSW Department of Trade and Investment, Regional Infrastructure and Services v Pasquale Brancatisano, Seacliff Functions Pty Ltd, Lochiel South Pty Ltd, Tory Lavalle and Emanuel Efstathiadis, Local Court NSW, 15 September 2017, unreported, Magistrate Williams Olbrich v The Queen (1999) 199 CLR 270 Ostrowski v Palmer [2004] HCA; (2005) 218 CLR 493 Parker v DPP (1992) 28 NSWLR 282 Pasquale Brancatisano v The NSW Department of Trade and Investment, Regional Infrastructure and Services [2018] NSW DC 333 Pearce v The Queen (1998) 194 CLR 610 Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204 Prodanovski v Andrews [2017] NSWCCA 230 Prodanovski v The NSW Department of Trade and Investment, Regional Infrastructure and Services [2017] NSW DC 73 Proudman v Daymon [1941] HCA 28; (1941) 67 CLR 536 R v Doan [2000] NSWCCA 71 R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10 R v Longshaw (1990) 20 NSWLR 554 R v Qutami [2001] NSWCCA 353 Sault Ste Marie [1978] 2 SCR 1299 The Queen v Baden-Clay (2016) HCA 16; (2016) 258 CLR 308 Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715 Vickers Pty Ltd v Australian Direct Mail Advertising and Addressing Co, Pty Ltd (1975) 133 CLR 72 Walker & Sons (Hauliers) v Environment Agency [2014] EWCA Crim 100 Weissensteiner v. The Queen [1993] HCA 65; (1993) 178 CLR 217 Zreika v R [2012] NSWCCA 44
Texts Cited:	Cross on Evidence, 8th ed. J D Heydon, (2010) LexisNexis Butterworths Alice in Wonderland, Lewis Carroll
Category:	Principal judgment
Parties:	Lochiel South Pty Limited (Appellant) Tory Lavalle (Appellant) NSW Department of Trade and Investment, Regional Infrastructure and Services (Respondent)
Representation:	Counsel: Mr D Campbell SC (for the Appellants) Mr K Averre (for the NSW Department of Trade and Investment, Regional Infrastructure and Services)   Solicitors: Mr C Sheppard (for the Appellants) Mr A Campbell (for the NSW Department of Trade and Investment, Regional Infrastructure and Services)
File Number(s):	2015/00179102 (Appellant - Tory Lavalle)2015/00014815 (Appellant - Lochiel South Pty Limited)

Judgment

Introduction

1. On 15 September 2017, Magistrate David Williams, after a defended hearing that went for two years, with over nine weeks of court time, found Lochiel South Pty Ltd (Lochiel South) guilty of 27 breaches of s 65(1) Fisheries Management Act 1994 (FM Act) and 3 breaches of cl 75 Fisheries Management (General) Regulation 2010 (FM(G) Reg). Tory Lavalle ("Lavalle"), a Director of Lochiel South, was found guilty of three breaches of s 65 (1) FM Act because of liability derived from s 279 FM Act: NSW Department of Trade and Investment, Regional Infrastructure and Services v Pasquale Brancatisano, Seacliff Functions Pty Ltd, Lochiel South Pty Ltd, Tory Lavalle and Emanuel Efstathiadis, Local Court NSW, 15 September 2017, unreported, Magistrate Williams: "Magistrate's reasons".

2. On 13 December 2017, fines totalling $378,000 were imposed on Lochiel South for 18 of those offences. The remaining matters were dealt with by only a finding of guilt as Magistrate Williams found it inexpedient to impose any further penalty: Applying s 10A Crimes (Sentencing Procedure) Act 1999. On that day Tory Lavelle was fined a total of $40,000. Costs orders were made against Lochiel South and Lavalle, for respectively, $70,000 and $7,000: Magistrate's sentence reasons 13 December 2017.

3. Applying s 75 FM Act, Magistrate Williams ordered the forfeiture of the shares that Lochiel South held in the Eastern rock lobster fishery.

4. Lochiel South and Lavalle appealed all of Magistrate Williams determinations and orders to the District Court. The appeal hearing went for four days from 24 September 2018.

5. The appeal proceeded on the basis of the evidence in the Local Court. With the consent of the Respondent one piece of fresh evidence was tendered on appeal. It related to Lavalle's good character: Appeal Exhibit C. Written submissions were filed on behalf of the parties: MFI 1 & 2. After I had reserved for judgement supplementary submissions were also filed by leave.

6. Most objective facts were not disputed. So far as both Appellants were concerned the principle focus of the appeal was on asserted errors of law made by Magistrate Williams and challenge to some of the inferences his Honour drew from proved facts. Challenge was also made to his Honour's conclusions as to the appropriate penalties and the consequential orders made.

7. During the appeal hearing I was also asked to view some surveillance video recordings and listen to portions of an electronically recorded interview between Fisheries Officer Chen and Tory Lavalle ("ERI"): Appeal Book Volume 7, Local Court Exhibit 32.

8. Magistrate Williams' decision extended to some 1048 paragraphs. I am bound to afford respect to his Honour's endeavour to give the correct and lawful conclusion to the puzzles presented to him: Fox v Percy (2003) 214 CLR 118 at [41].

9. The transcript covered some 2,300 pages. There were 8 additional volumes of appeal books. I was not taken to, or required to read, all of the evidence and transcript from the Local Court hearing. I was asked to review specific parts of the evidence. The detail and length of both the written and oral submissions made required much closer examination of the transcript and evidence than I had initially been led to expect.

10. A number of points taken on appeal had not been raised in the Local Court, despite the submissions in Local Court having occupied days. The Appellants submitted that some concessions made by those then acting for Lochiel South should not have been made and, which having been made, had led to error. Further, a number of points taken by the Appellant on appeal were the opposite of those advanced in the Local Court.

District Court power on rehearing

11. On the rehearing, the District Court's appellate powers are be exercised under Crimes (Appeal and Review) Act 2001.

12. Section 17 relevantly provides:

An appeal against sentence is to be by way of a rehearing of the evidence given in the original Local Court proceedings, although fresh evidence may be given in the appeal proceedings.

13. Section 18 (1) relevantly provides:

An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by section 19.

14. On an appeal against conviction from the Local Court, a District Court Judge is permitted to have regard to the Magistrate's reasons for judgment, in addition to the transcript of and evidence tendered in, the Local Court proceedings: Charara v R (2006) 164 A Crim R 39, per Mason J at [23].

15. The District Court does not have a supervisory jurisdiction over the Local Court. However, within the functions exercised by the District Court under the Crimes (Appeal and Review) Act 2001, a District Court Judge must be alive to the possibility that misapprehensions and errors of judgment can occur in a Magistrate's evaluation of evidence. A Judge is entitled to draw his or her own inferences from the evidence given in the Local Court (with the "natural limitations" of an appellate court); those inferences may, or may not be, contrary to any inferences drawn by the Magistrate. The Court exercises a power analogous to that considered in Fox v Percy, where the High Court considered the nature of a "rehearing" in civil proceedings.

16. After hearing an appeal s 20 Crimes (Appeal and Review) Act 2001, relevantly provides:

(1) The District Court may determine an appeal against conviction:

(a) by setting aside the conviction, or

(b) by dismissing the appeal, …

(2) The District Court may determine an appeal against sentence:

(a) by setting aside the sentence, or

(b) by varying the sentence, or

(c) by dismissing the appeal.

17. Neither the Crimes (Appeal and Review) Act 2001 nor the District Court Act 1973 specifically, provide for the procedure to be adopted, or set out the powers to be exercised or the function to be performed by the District Court on an appeal against a conviction in the Local Court. The exceptions are ss 18(2) and 19, which relate to the receipt of fresh evidence and directions for a person to attend and give evidence: Charara at [19].

18. On one view a s 18 rehearing does not require a finding error as there is no power of remitter: Gianoutis v Glykis (2006) 65 NSWLR 539. However, more recently a number of Justices of the Court of Appeal have expressed a different view: see Dyason v Butterworth [2015] NSWCA 52; Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290; Director of Public Prosecutions v AG (NSW) [2015] NSWCA 218. That controversy does not have to be resolved here as the Appellants focused their submissions on asserted errors made by Magistrate Williams; “errors” made, in part, because of erroneous submissions made by those then appearing for the Appellants in the Local Court. As Justice Basten noted in Director of Public Prosecutions v AG at [34]:

"…the term "error" has no precise meaning; it requires the appellate judge to be satisfied that the judgement under appeal is wrong and should be corrected. How that satisfaction is achieved will depend on a range of factors relevant to specific cases."

19. The extensive written submission, over 3 days of oral submissions and their complexity, require careful consideration. I note I do not have the benefit of a transcript of the appeal. Careful consideration of those submissions does not however, require that each matter raised be individually dealt with. Rather, I have sought in reviewing the evidence and Magistrate Williams' judgement to give the critical issues in dispute fresh consideration in the light of the submissions made by both the Appellant, and the Respondent.

Background

The Eastern rock lobster fishery

20. Eastern rock lobster are a premium table species and accordingly have a high commercial value. Unrestrained and unrestricted taking of Eastern rock lobster would lead to the demise of the fishery with considerable adverse ecological and commercial consequences.

21. A "fishery" is: “a class of fishing activity, which may be identified by reference to a species or class of fish, an area of waters or seabed, a method of fishing a class of boat or persons and the purpose of activities”: Prodanovski v Andrews [2017] NSWCCA 230 at [14].

22. The taking of Eastern rock lobster from New South Wales waters is tightly controlled. It is subject to a legislative management plan: as set out in the (FM Act) and regulations . It is subject to limitations on commercial exploitation by a quota system. The quota regulates the number of Eastern rock lobster a commercial fisher may take in any given year. Strict requirements are made to ensure that all Eastern rock lobster taken commercially as part of the quota system are tagged and reported. Unused portions of a quota are tradable. The FM Act and associated regulations impose a number of other important requirements, such as the need to submit catch and effort log sheets every time an attempt is made to catch Eastern rock lobster, even if that attempt is unsuccessful.

23. When an Eastern rock lobster is taken commercially it must be tagged and logged. The tagging process requires that a sequentially numbered bright yellow tag be attached to the Eastern rock lobster either on board the vessel or within 10m of a docked vessel. The tag is looped over a portion of the Eastern rock lobster and run through a lock. The tag is tightened: the lock engaged and the excess tail of the tag trimmed to the locking mechanism by cutting it with a device similar to sharp pliers or scissors. Tags are not to be reused.

Pasquale Brancatisano's criminal activities

24. The present prosecution arose from an investigation into allegations of significant breaches of the FM Act and consequent regulations. Pasquale Brancatisano was the initial focus of the investigation that led to the prosecution of the Appellants. He was the skipper of the Lochiel, a fishing boat owned by Lochiel South. It is not in dispute that Brancatisano was at all relevant times the holder of a commercial fishing license, which extended to the taking of Eastern rock lobster in the share management fishery: Part 3 FM Act, s 68 FM Act and cl 2 of the Appendix to the Fisheries Management (Lobster Share Management Plan) Regulation 2000: ("the Management Plan"). It is not in dispute that he was the nominated fisher for Lochiel South: Appellant's outline of submissions, at [16].

25. Brancatisano was tried by Magistrate Williams at same time as the Appellants. He too was convicted: In his case of 117 breaches of the FM Act or regulations on 33 individual dates between 7 December 2012 and 14 May 2014. Importantly here, his convictions for 27 breaches of s 65(1) FM Act and 3 breaches of cl 75 FM(G) Reg are directly relevant to 30 of the charges relating to Lochiel South.

26. Brancatisano also appealed each determination and consequent order made by Magistrate Williams. His matter was listed along with this appeal as a special fixture at Wollongong District Court. On 24 September 2018, he sought to withdraw each appeal except those relating to the 10 custodial sentences imposed by Magistrate Williams. The other matters, relating to fines and costs, he sought to withdraw were dismissed and the orders of the Magistrate confirmed. In relation to the 10 remaining sentence appeals, I varied the penalties imposed by the Magistrate Williams: s 20 (2) Crimes (Appeal and Review) Act 2001.

27. For one matter I imposed a fixed term of imprisonment of 5 months - equivalent to time served in custody before bail was granted. For the remaining matters I indicated terms of imprisonment for each but directed the aggregate sentence of two years two months be served in the community subject to an Intensive Corrections Order: Pasquale Brancatisano v The NSW Department of Trade and Investment, Regional Infrastructure and Services [2018] NSW DC 333.

Other offenders

28. Prior to the specially fixed appeal hearing date two other Appellants, Seacliff Pty Ltd and Efstathiadis, sought to withdraw their appeals. The orders of the Magistrate were confirmed. Another related offender was dealt with in separate proceedings. The appeals were dismissed: Prodanovski v The NSW Department of Trade and Investment, Regional Infrastructure and Services [2017] NSW DC 73; Prodanovski v Andrews [2017] NSWCCA 230.

The Appeals

29. Lochiel South was convicted of 27 offences pursuant to s 65(1) FM Act and 3 pursuant to cl 75 FM(G) Reg. A summary of each charge and the penalty imposed is set out below; note there is no Court Attendance Notice (CAN) 14.

SENTENCE SCHEDULE (LOCHIEL SOUTH PTY LTD)

CAN No.	Offence date	Charge	Particulars	Sentence
1	5 February 2013	S 65(1) FMA Shareholder contravention of management plan (by nominee)	Rock lobster taken, landed and not tagged by Brancatisano: 24 rock lobster	$22,000.00
2	13 February 2013	S 65(1) FMA Shareholder contravention of management plan (by nominee)	Rock lobster taken, landed and not tagged by Brancatisano: 15 rock lobster	$15,000.00
3	14 February 2013	S 65(1) FMA Shareholder contravention of management plan (by nominee)	Rock lobster taken, landed and not tagged by Brancatisano: 36 rock lobster	$22,000.00
4	20 March 2013	S 65(1) FMA Shareholder contravention of management plan (by nominee)	Rock lobster taken, landed and not tagged by Brancatisano: Fish sold:26 untagged Eastern Rock Lobster	$22,000.00
5	13 February 2013	Cl 75 FM(G)R Sell Eastern rock lobster without tag attached	Fish sold: 15 untagged Eastern rock lobster Purchaser: Seacliff Functions Pty Ltd	s 10A
6	14 February 2013	Cl 75 FM(G)R Sell Eastern rock lobster without tag attached	Fish sold: 36 untagged Eastern rock lobster: Purchaser: Seacliff Functions Pty Ltd	s 10A
7	20 March 2013	Cl 75 FM(G)R Sell Eastern rock lobster without tag attached	Fish sold: 26 untagged Eastern rock lobster	s 10A
8	25 April 2013	S 65(1) FMA Shareholder contravention of management plan (by nominee)	Not attach tag to rock lobster :46.7kg of rock lobster sold to Seacliff Functions Pty Limited	s 10A
9	25 April 2013	S 65(1) FMA Shareholder contravention of management plan (by nominee)	Not attach tag to rock lobster:70.0kg of rock lobster sold to an unknown buyer	$22,000.00
10	8 May 2013	S 65(1) FMA Shareholder contravention of management plan (by nominee)	Not attach tag to rock lobster: 126.0kg of rock lobster sold to Harbourfront Restaurant	$22,000.00
11	17 July 2013	S 65(1) FMA Shareholder contravention of management plan (by nominee)	Not attach tag to rock lobster: 2.0kg of rock lobster sold to Seacliff Functions Pty Limited	$10,000.00
12	14 November 2013	S 65(1) FMA Shareholder contravention of management plan (by nominee)	Not attach tag to rock lobster: 4.6kg of rock lobster sold to Seacliff Functions Pty Limited	$10,000.00
13	2 December 2013	S 65(1) FMA Shareholder contravention of management plan (by nominee)	Not attach tag to rock lobster: 15.3kg of rock lobster sold to Seacliff Functions Pty Limited	$15,000.00
15	17 December 2013	S 65(1) FMA Shareholder contravention of management plan (by nominee)	Not attach tag to rock lobster: 35kg of rock lobster sold to Harbourfront Restaurant	$22,000.00
16	22 December 2013	S 65(1) FMA Shareholder contravention of management plan (by nominee)	Not attach tag to rock lobster: 12.5kg of rock lobster sold to Seacliff Functions Pty Limited	$15,000.00
17	27 December 2013	S 65(1) FMA Shareholder contravention of management plan (by nominee)	Not attach tag to rock lobster: 4kg of rock lobster sold to Seacliff Functions Pty Limited	$10,000.00
18	3 January 2014	S 65(1) FMA Shareholder contravention of management plan (by nominee)	Not attach tag to rock lobster: 172 rock lobster	$22,000.00
19	10 January 2014	S 65(1) FMA Shareholder contravention of management plan (by nominee)	Not attach tag to rock lobster: 9 rock lobster	$10,000.00
20	30 January 2014	S 65(1) FMA Shareholder contravention of management plan (by nominee)	Not attach tag to rock lobster: 1.1kg rock lobster	$7,000.00
21	18 February 2014	S 65(1) FMA Shareholder contravention of management plan (by nominee)	Not trim tag immediately after attaching to rock lobster: 257 rock lobster	$22,000.00
22	24 February 2014	S 65(1) FMA Shareholder contravention of management plan (by nominee)	Not trim tag immediately after attaching to rock lobster: 222 rock lobster	$22,000.00
23	24 February 2014	S 65(1) FMA Shareholder contravention of management plan (by nominee)	Not attach tag to rock lobster:22 rock lobster	s 10A
24	7 March 2014	S 65(1) FMA Shareholder contravention of management plan (by nominee)	Not trim tag immediately after attaching to rock lobster:34 rock lobster	$22,000.00
25	14 March 2014	S 65(1) FMA Shareholder contravention of management plan (by nominee)	Not attach tag to rock lobster:2 rock lobster	s 10A
26	14 March 2014	S 65(1) FMA Shareholder contravention of management plan (by nominee)	Not trim tag immediately after attaching to rock lobster: 124 rock lobster	$22,000.00
27	22 April 2014	S 65(1) FMA Shareholder contravention of management plan (by nominee)	Not trim tag immediately after attaching to rock lobster: 34 rock lobster	$22,000.00
28	22 April 2014	S 65(1) FMA Shareholder contravention of management plan (by nominee)	Not attach tag to rock lobster:8 rock lobster	s 10A
29	22 April 2014	S 65(1) FMA Shareholder contravention of management plan (by nominee)	Not attach tag to rock lobster in such a manner that it cannot be removed without being broken: 9 Eastern rock lobster tagged with tags 1952560, 1952562, 1952566, 1952567, 1952568, 1952574, 1952580, 1952588, 1952638.	s 10A
30	14 May 2014	S 65(1) FMA Shareholder contravention of management plan (by nominee)	Not attach tag to rock lobster:12 rock lobster	s 10A
31	14 May 2014	S 65(1) FMA Shareholder contravention of management plan (by nominee)	Not attach tag to rock lobster in such a manner that it cannot be removed without being broken: 23 Eastern rock lobster	$22,000.00
TOTAL FINES:				$378,000.00

SENTENCE SCHEDULE (LAVALLE)

CAN No.	Offence date	Charge	Particulars	Sentence
1	24 February 2014	Ss 279(1) and 65(1) FMA Being the director of a shareholder company, knowingly permit a contravention of the management plan by a nominee	Not trim tag immediately after attaching to rock lobster: 222 rock lobster	$10,000.00
2	24 February 2014	Ss 279(1) and 65(1) FMA Being the director of a shareholder company, knowingly permit a contravention of the management plan by a nominee	Not attach tag to rock lobster: 22 rock lobster	$10,000.00
3	14 May 2014	Ss 279(1) and 65(1) FMA Being the director of a shareholder company, knowingly permit a contravention of the management plan by a nominee	Not attach tag to rock lobster: 12 rock lobster	$20,000.00
TOTAL FINES:				$40,000.00

30. In the Local Court it was not in dispute that s 65(1) FM Act imposed strict liability on Lochiel South. Accordingly, Magistrate Williams had little difficulty, once Brancatisano's guilt was proved, in imputing liability to Lochiel South: see, for example, Magistrate's reasons at [218] - [220] & [227] - [228].

31. For the offences alleging breaches of cl 75 FM(G) Regulation, the case against Lochiel South was circumstantial. The hearing in the Local Court again focussed primarily on whether Brancatisano had offended. Lochiel South's liability was regarded as, primarily but not exclusively, derivative: that is; if Brancatisano was acquitted so too would Lochiel South. Lavalle's direct liability derived from his alleged authorisation or permission for Brancatisano to breach the FM Act and FM(G) Reg.

The offences

32. It is important to begin with an understanding of the penalty provisions that founded the Court Attendance Notices (CANs) that led, eventually, to the convictions the subject of these appeals

Fisheries Management Act 1994 – s 65 Contravention of plan

(1) A shareholder in a share management fishery is guilty of an offence if the shareholder (or a person nominated by the shareholder to take fish in the fishery) contravenes a provision of a management plan for the fishery, being a contravention that is a designated contravention.

Maximum penalty: In the case of a corporation, 1,000 penalty units or, in any other case, 500 penalty units.

(2) A "designated contravention" is a contravention of a provision of a management plan that is designated as an offence by:

(a) the management plan, or

(b) a supporting plan (if adopted by the management plan).

(3) A management plan or supporting plan may also designate whether any such offence is an offence for which the shares of the shareholder are liable to forfeiture under this Act.

s 279 Offences by corporations

(1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision if the person knowingly authorised or permitted the contravention.

(2) A person may be proceeded against and convicted under a provision pursuant to this section whether or not the corporation has been proceeded against or been convicted under that provision.

(3) Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation against this Act or the regulations.

Fisheries management (General) regulation - Division 4 Tagging of eastern rock lobster taken for sale

cl 75 Eastern rock lobster not to be sold unless tag attached

(1) A person must not sell a whole eastern rock lobster, or the tail of an eastern rock lobster, that does not have a tag attached to it in such a manner that the tag cannot be removed without being broken.

Maximum penalty: 100 penalty units in the case of a corporation or 50 penalty units in any other case.

(2) A person does not commit an offence under this clause unless the rock lobster concerned was taken in the waters of, or adjacent to, New South Wales.

(3) In this clause:

"eastern rock lobster" means rock lobster of the species Sagmariasus verreauxi.

"tag" means a tag issued by the Secretary for attachment to eastern rock lobsters taken for sale.

"whole eastern rock lobster" includes an eastern rock lobster that has had parts (other than the abdomen of the rock lobster) removed.

Note. The Fisheries Management (Lobster Share Management Plan) Regulation 2000 requires commercial fishers to tag Eastern rock lobsters taken for sale.

Lochiel South's conviction appeal - s 65(1) FM Act

33. Each conviction was premised on Lochiel South's strict liability for the offences committed by Brancatisano as Lochiel South's nominated fisher. The Appellant criticised Magistrate Williams for treating Lochiel South's liability as "absolute" and not having proper regard to evidence that founded and established a defence of honest and reasonable mistake. I was urged to, and will, approach the evidence afresh. I do so making the following assumptions that do not appear to be in dispute:

1. Magistrate Williams’ conclusion that the evidence established Brancatisano committed each foundational offence was correct.

2. On each of these 27 occasions Brancatisano either sold untagged lobster or failed to attach tags to Easter rock lobster.

3. Brancatisano's actions were criminal.

4. Brancatisano ran two sets of receipt books and log books. One was illicit; the other licit.

5. Brancatisano would receive payments from purchasers and invoice them in the name of Lochiel South.

6. These transactions were the subject of charges against Brancatisano that led to convictions.

7. Some of these invoices were for untagged Eastern rock lobster.

8. Brancatisano was Lochiel South's nominated fisher.

9. Lavalle was a director of Lochiel South.

10. Lochiel South's books as provided by them to fisheries officers did not show corresponding entries for these payments.

11. Lochiel South is a shareholder in the Management Plan.

12. Lavalle was the director and partner who dealt directly with Brancatisano.

13. Lavalle and Lochiel South relied on Brancatisano’s expertise, skill and experience to run all aspects of the business.

14. Lavalle would regularly attend at Wollongong Harbour when the Lochiel docked.

15. Lavalle was learning about the Eastern rock lobster business.

16. Lavalle professed ignorance of these transactions when interviewed: See Electronically Recorded Interview between Fisheries Officer Chen and Lavalle, 30 October 2014 ("ERI"), at 23 line 5.

17. Section 65(1) is an offence of strict liability: He Kaw The v The Queen [1985] HCA 43; (1985) 157 CLR 52.

18. A defence of honest and reasonable mistake is available: Proudman v Daymon [1941] HCA 28; (1941) 67 CLR 536.

19. An evidentiary basis must exist for a defence of honest and reasonable mistake: Proudman v Daymon; CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440.

Submissions

34. Mr Campbell, Senior Counsel for both Appellants, submits, absent proof of malfeasance by Lochiel South, an inference is available that there was an honest and reasonable mistake made: that is, Lavalle and Lochiel South were the victims of Brancatisano's criminal activity and that Brancatisano was "on a dishonest frolic of his own, his enterprise depriving his employer of remuneration from lobsters properly tagged and on-sold, instead clandestinely disposing of them:" Appellant's submissions at [20.2.1].

35. This possible exculpatory inference was lightly pressed below and only in relation to the cl 75 offences. It was pressed with vigour on appeal. So, far as the s 65(1) offences are concerned it had been accepted in the Local Court that if Brancatisano had committed an offence, Lochiel South would also be liable. The exculpatory effect of an honest and reasonable mistake was not put to the Magistrate.

36. In the Local Court Lochiel South's defence to both the s 65(1) and cl 75 offences was based on challenges to the prosecution evidence of Brancatisano's offending. It was submitted below that the prosecution had failed to prove beyond reasonable doubt Brancatisano had committed any offences.

37. On appeal, Mr Campbell noted however that there was no impediment to an Appellant taking a point not taken below, if that point was now available. It is available on appeal only because the Appellant now concedes Brancatisano was in beach of his obligations under the FM Act and regulations. That the Appellant's position had now changed, Mr Campbell submitted, did not absolve the Respondent from their duty to prove each count against Lochiel South beyond reasonable doubt.

38. I proceed on the basis that there is no issue of estoppel available to the prosecution, nor is there any formal restriction on the Appellants to points taken in the Court below, as occurs in the Court of Criminal Appeal: Rule 4, Criminal Appeal Rules. The prosecution in any trial, and on appeal, have an obligation to prove their case beyond reasonable doubt. However, particularly where the defence raise issues relating to a failure by the prosecution to negative a hypothesis reasonably consistent with innocence. The fact that that hypothesis was not raised below, is a matter I can consider when I come to consider its reasonableness. Further, on reviewing the evidence and the decision of Magistrate Williams I must bear in mind that there was no obligation on the Respondent in the Local Court to rebut what was not raised in evidence or submission.

39. A submission was made that Magistrate Williams made no positive finding of malfeasance against Lochiel South. Specific reliance was placed on the following passage set out in the Appellant's submissions at [20]; "…I make no finding, subject to what I say in relation to the offences directly against Mr Lavalle, of any particular misfeasance by any particular person, these are corporate offences.” This quote comes from his Honour's sentence judgment of 13 December 2017. It was preceded by, in that judgment, and given context by, the sentence that came before, "I should say that these offences arise essentially without any involvement by the corporation other than by its servants…"

40. The Respondent did not seek to reopen its case or call evidence by leave to meet these new challenges rather it was submitted there was no evidentiary basis for a defence of honest and reasonable mistake of fact.

Issues for consideration s 65 (1) Fisheries Management Act offences

41. The issues raised on Appeal require a consideration of four important questions:

1. What form of liability applied to Lochiel South?

2. As the Appellant called no evidence other than good character what evidence raised an honest and reasonable mistake? And,

3. If raised, had the Respondent rebutted honest and reasonable mistake, and

4. Ultimately, had the Respondent proved each offence beyond reasonable doubt?

Magistrate Williams' Judgment

42. I was not asked to, and have no intention of, closely parsing each of Magistrate Williams' determinations. It is however necessary that I set out an example of his approach to the puzzles presented to him.

43. His Honour dealt first with some general propositions and submissions in relation to what was a complex combination of circumstances to which numerous technical objections had been taken. He carefully examined and then disposed of those objections, for example, the propositions that whatever Brancatisano sold was not Eastern rock lobster but hermit crab or some other lobster species or that the Lochiel was not fishing in New South Wales waters.

44. His Honour addressed two issues of importance to Lochiel South including the incompleteness of their records (Magistrates' reasons at [31]-[37]) and possible motive (at [46]-[48]).

45. Magistrate Williams then reviewed the mental element required for each offence under consideration. Contrary to the Appellant's suggestion, he concluded the offences alleged against Lochiel South were offences of strict liability by reference to well recognised authorities: at [80]-[88]. He dealt with Seacliff's assertion of honest and reasonable mistake and the tendency and coincidence evidence led and admitted against Brancatisano. He did not err in his legal directions.

46. Magistrate Williams then dealt with all the charges against all parties in date order. He set out the parties submissions, related them to the evidence tendered (most of which was not in dispute) and then gave reasons for his ultimate determinations. His determinations were not all one way. He gave the benefit of any reasonable doubt to an accused. Given the time and other pressures and limited resources available to Magistrates of the Local Court it was an exemplary effort.

The offences of 5 February 2013 - An example:

47. Magistrate Williams carefully analysed the evidence in relation to each of the s 65(1) FM Act offences before finding beyond reasonable doubt Brancatisano had committed them. So far as the offences of 5 February 2013 are concerned his Honour found as follows:

• On 4 and 5 February 2013 the Lochiel, captained by Brancatisano, was in the vicinity of certain fish traps identified as belonging to Brancatisano. His records show a total of 187 Eastern rock lobster were taken.

• Wollongong Fish Cooperative records note receipt of a consignment of 157.4 kg of Eastern rock lobster.

• Wollongong Fish Cooperative records show that 11.4 kg of that consignment went to Seacliff. Brancatisano’s first tax (licit) invoice books records a receipt for Lochiel South for that 11.4 kg of $570. Corresponding records from Seacliff match it. So too do the records of Lochiel South.

• Brancatisano’s second tax (illicit) invoice book also shows a sale to Seacliff of 19.5 kg of an unspecified product at $35 per kilogram for $682.

• His Honour found, for reasons carefully set out in his judgment, that beyond reasonable doubt the "unspecified product" was Eastern rock lobster.

• There was no invoice produced by Seacliff in relation to either transaction.

• Other evidence however, including documents were recovered from Brancatisano by Fisheries Officers as part of their investigation included his log sheets.

• Taken with admissions made by Brancatisano, His Honour concluded that on this day 19.5 kg of Eastern rock lobster, that is 24 Eastern rock lobster corresponding to this weight, were not declared on Brancatisano's log sheet and that these lobster were not tagged Those Eastern rock lobster were sold for $682.

48. Lochiel South's submissions to the Local Court did not dispute their liability for the contravention by Brancatisano but submitted the Local Court would have a reasonable doubt that any contraventions took place. Lochiel South made general submissions regarding the reliability of inferences to be drawn from the data about trip records. It was noted they had produced no record of the sale of 19.5 kg of anything at $35 per kilogram and that the Local Court would therefore have a doubt the transaction referred to in the second invoice book ever took place. It was submitted that the book may be an error or that the 19.5 kg may have been hermit crab or something else other than Eastern rock lobster.

49. His Honour noted that in his electronic record of interview Lavalle could not give any information about the absence of corresponding Lochiel South records.

50. His Honour concluded that the absence of financial records showing the 19.5 kg sale to Seacliff was of no moment. He noted that Seacliff has not been charged with any offence in relation to this transaction. He suggested it may be that was a cash sale or a failure in record-keeping process. Indeed, he said "there may be any number of explanations:" Magistrate’s reasons at [226]. He concluded however that:

"What is striking, though, is the consistency between the weight recorded on the invoice as have been sold to Seacliff (19.5 kg) and the shortfall in lobsters between the track records (187) and the log sheets (163). Moreover, the fact that there is both a shortfall as against trap records and a signed receipt is to, my mind, clearly more than mere coincidence. The combination of those matters satisfies me beyond reasonable doubt that indeed Brancatisano did separately sell 24 lobsters (19.5 kg) to Seacliff which were not recorded on the log sheet, and, by necessary implication were not tagged. The offences against Brancatisano are proved.

As direct result of that finding, the offence against Lochiel South is proved:" Magistrate's reasons at [227] - [228].

51. Consistent with this finding his Honour held in relation to each of the other matters proved against Brancatisano; "…there being no dispute that Lochiel South is the shareholder and at all relevant times Brancatisano was the Fisher nominated to take Eastern rock lobster for sale on its behalf the court would be satisfied beyond reasonable doubt of the guilt of the defendant Lochiel:" For example: at [219], [253] and [296].

Strict liability

52. Strict liability attaches to regulatory offences such as the FM Act and FM(G) Regulation. The offences are intended to be, and are, capable of being committed vicariously. Strict liability serves an important protective purpose. That is, to ensure measures are taken by those who might become strictly liable for regulatory offences to avoid that liability.

53. At the same time, the law allows for a limitation of that liability by leaving it open to an accused, corporate or otherwise, to avoid liability to raise, by evidence, an honest and reasonable mistake. This defence (or more strictly the requirement on the prosecutor that the evidence of honest and reasonable mistake be rebutted before conviction) is available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act innocent or if the accused took all reasonable steps to avoid a particular event: He Kaw The, per Gibbs CJ, citing with approval the Canadian authority, Sault Ste Marie [1978] 2 SCR 1299. Once honest and reasonable mistake is raised the prosecution then have an evidentiary onus of rebutting it beyond reasonable doubt. In the context of the s 65 (1) FM Act and cl 75 FM(G) Reg offences, here, this involves a consideration what a reasonable corporate employer would have done.

54. Ipp JA reviewed the relevant authorities, in Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204. He noted at [153]:

“Parliament can prohibit an act or enforce a duty and make the prohibition or the duty absolute; in which case a corporate principal is liable if the act is in fact done by his servants. It is not enough for a corporation to raise in their defence an assertion - we did not authorise a breach!” (citations omitted).

55. In Presidential Security Services, Allsop P also noted: "The proposition that a corporation cannot be criminally liable because criminal acts necessarily go outside the objects (presumed lawful) of a corporation has not been accepted by the courts;" at [5].

56. To ensure the principles relating to strict liability offences are correctly applied to the facts in issue requires, here, an examination of the FM Act and regulations:

"To ascertain whether a particular Act of Parliament has that effect or not regard must be had to the object of the statute, the words used, the nature of the duty laid down, the person upon whom it is imposed, the person by whom it would in ordinary circumstances be performed, and the person upon whom the penalty is imposed:" Mousell Brothers Ltd v London and North-Western Railway: Co; The King and The Minister for Customs v Australasian Films and Another (1921) 29 CLR 195.

57. In Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715, Gleeson CJ (with whom Mahoney JA and Campbell J agreed) said, at 718-719, noted that questions of statutory construction commonly require consideration of context and a legislative intention. The conclusion a principal would be liable for the misdeeds of others could: “…most readily be drawn when the offences could be characterised as regulatory in substance although criminal in form. Such offences were sometimes characterised as 'public welfare offences'. Laws relating to fair-trading, consumer protection, and safeguarding the environment provide examples."

57. I proceed on the basis that the objects of the FM Act bring it into this category:

Section 3 The Objects of Act

(1) The objects of this Act are to conserve, develop and share the fishery resources of the State for the benefit of present and future generations.

(2) In particular, the objects of this Act include:

(a) to conserve fish stocks and key fish habitats, and

(b) to conserve threatened species, populations and ecological communities of fish and marine vegetation, and

(c) to promote ecologically sustainable development, including the conservation of biological diversity,

and, consistently with those objects:

(d) to promote viable commercial fishing and aquaculture industries, and

(e) to promote quality recreational fishing opportunities, and

(f) to appropriately share fisheries resources between the users of those resources, and

(g) to provide social and economic benefits for the wider community of New South Wales, and

(h) to recognise the spiritual, social and customary significance to Aboriginal persons of fisheries resources and to protect, and promote the continuation of, Aboriginal cultural fishing.

Honest and reasonable mistake

59. In Proudman v Dayman, while the High Court reaffirmed and reinforced that the defence of honest and reasonable mistake was available, Mrs Proudman failed to meet her evidentiary onus. As Rich CJ noted it was, "… simply a case where a person, showing complete indifference to the fulfilment of the duty laid on her by the legislature, says: "I didn't know."

60. A similar conclusion was reached by Dixon J in his seminal judgment:

"The burden of establishing honest and reasonable mistake is in the first place upon the defendant and he must make it appear that he had reasonable grounds for believing in the existence of a state of facts, which, if true, would take his act outside the operation of the enactment and that on those grounds he did so believe. The burden possibly may not finally rest upon him of satisfying the tribunal in case of doubt. But, in the present case, the applicant assigned reasons for her alleged belief which neither the magistrate nor the Full Court found convincing or sufficient. Indeed, it may be doubted if she thought at all upon the question whether the person she permitted to drive her car did or did not hold a subsisting licence.

Agreeing as we all do in the view of the Full Court on this question of fact, it is enough to say that there is no support in the circumstances of the case for the defence of honest and reasonable mistake."

61. A more recent example is CTM v The Queen. There, an answer to a police question in the course of an interview, asserting information given to him by a complainant about her age, "…did not, in the light of the course of evidence, and absence of evidence, at trial, discharge the evidentiary burden involved in reliance on honest and reasonable mistake of fact as a ground of exculpation:" CTM at [36].

62. As Button J noted in Andrew v Ardler [2012] NSWSC 845, the plurality in CTM did not go beyond using the well-known phrase "evidential burden" (in discussing what the defendant must discharge). Justice Button pointed out that Hayne J gave this question greater consideration by referring to, the judgment of Dawson J in He Kaw Teh:

"[T]he burden of providing the necessary foundation in evidence will in most cases fall upon the accused. But it is not inconceivable that during the case for the prosecution sufficient evidence may be elicited by way of cross-examination or otherwise to establish honest and reasonable mistake or to cast sufficient doubt upon the prosecution case to entitle the accused to an acquittal. The governing principle must be that which applies generally in the criminal law. There is no onus upon the accused to prove honest and reasonable mistake upon the balance of probabilities. The prosecution must prove his guilt and the accused is not bound to establish his innocence. It is sufficient for him to raise a doubt about his guilt and this may be done, if the offence is not one of absolute liability, by raising the question of honest and reasonable mistake. If the prosecution at the end of the case has failed to dispel the doubt then the accused must be acquitted."" (footnotes omitted)

63. Justice Button also referred to Cross on Evidence, 8th ed. J D Heydon, (2010) LexisNexis Butterworths, at [9120], p 359:

"When the accused bears the evidential burden alone, it is only necessary for there to be such evidence as would, if believed and un-contradicted, induce a reasonable doubt in the mind of a reasonable jury as to whether the accused's version might not be true..."

Honest and reasonable mistake - evidence

64. The evidence relied upon by Lochiel South to raise that evidential burden is contained in the ERI between Fisheries Officer Chen and Lavalle on 30 October 2014. I have had the opportunity of reviewing all the ERI and listening in court to portions of that interview selected by the parties. Reliance is also placed on the absence of any corresponding financial records being produced by Lochiel South relating to the sale of Eastern rock lobster to purchasers who received and paid Brancatisano for untagged Eastern rock lobster.

The ERI of 30 October 2014

65. It is important to note that Lochiel South had an obligation and had been compelled to produce their financial records: see ss 256 -258A FM Act.

66. In the ERI, Fisheries Officer Chen, after establishing that Lavalle owned Lochiel South Pty Ltd and had done so for two years, asked him what efforts he had made to understand the regulations or rules and regulations relating to the New South Wales lobster fishery.

67. Lavalle replied; "… as a shareholder what have I made - okay. How to answer that one? I'm learning.… Right I've learnt look I was learning… I put a manager in place and it didn't work”: ERI pages 6 - 7.

68. Lavalle agreed with Officer Chen's suggestion that it was an offence for a shareholder if lobsters taken under their fishing business were not tagged. He also agreed that it was an offence for the nominated fisher to exceed the allocated quota: ERI page 6. Lavalle told Officer Chen that, "Pat [Brancatisano] goes and sells fish we get the check." "Pat," he said, was "on a wage." Cash and other receipts would be passed on to Lochiel South's accountant: ERI page 10.

69. Lavalle also agreed that it was an offence to reuse lobster tags in New South Wales and to sell lobster that did not have a tag trimmed and flush with locking mechanism: ERI page 12. He also agreed that there was no point in putting a loose tag onto a lobster but stated that he did not then know that it was an offence to place loose lobster tags on lobsters for sale in New South Wales: ERI page 13. He denied ever himself selling untagged lobsters: ERI page 14. He was then taken to specific allegations for the charges relating to 5 February 2013. He was asked about certain records that were produced to him: ERI pages 19 - 20.

70. Lavalle was unable to tell Officer Chen about those records. He could not explain why Brancatisano had written what he did nor explain the amount of $682. When asked by Officer Chen, "So can you explain why there is no financial record listed under the Lochiel South for the sale of those?" He answered, "I can't explain": ERI page 20.

71. Lavalle was taken to each transaction where Brancatisano had made sales but there was no corresponding record produced to Fisheries Officers by Lochiel South. He could not explain why there was no such record. Lavalle was taken to each of the allegations where he specifically was said to have committed a s65 and s269 FM Act offence.

72. Lavalle told Officer Chen that, he was, "…always down harbour I think": ERI page 43. And, "… there were heaps of times I've been there:" ERI page 44. At ERI page 46, Officer Chen again asked him “were you aware at the time that it was requirement to have those tags trimmed?" He answered, "No".

73. Officer Chen asked Lavalle about the events of 24 February 2014. A day he accepted he was at the Lochiel at Wollongong Harbour. He was asked if he could explain why a box of 18 Eastern rock lobster wasn't tagged in accordance with regulations. He could not. He was asked what happened to those untagged rock lobsters. He said he didn't know.

74. Officer Chen then asked, "so if you saw untagged lobsters on the back of Pat's boat, you know, and he's getting rid of the lobsters and the like, you know like so he's got tagged lobsters and he's got untagged lobsters you know wouldn't you think it's funny he's got untagged lobsters there?"

75. Lavalle replies "it would be yes... Just I had no idea, man. I just let it - why wouldn't they be tagged? What - maybe I wasn't looking they were tagged… I don't know:" ERI page 48.

76. Officer Chen persisted, "but you required that all lobsters needed to be tagged, right?" Lavalle replied, "Yes." Officer Chen, "At that time? So, yeah. So, I mean, I'm just asking the question, Tory." Lavalle said, "Yeah." Officer Chen then asked, "Yeah, so you don't know why that was the case?” Lavalle replied, "No:" ERI page 49.

77. At ERI page 53, Officer Chen took Lavalle to 22 April 2014 when he had been seen at Wollongong Harbour on-board the Lochiel. That date corresponded to another sale by Brancatisano of untagged lobsters. Again, Lavalle could offer no explanation for why 34 Eastern rock lobster inspected at Harbourside Fish Market had attached to them tags; tags, whose numbers had been assigned to the Lochiel but which had not been trimmed. Again, he could offer no explanation: ERI page 54.

78. When Lavalle was asked about the incident on 14 May 2014, the subject of an allegation directly against him, his responses, do him no credit. On this occasion he said he was assisting Brancatisano, as he said he had done on, "heaps of occasions." Again, he could not explain why he participated in a tagging process that appeared unusual or why Brancatisano was in possession of 12 untagged Eastern rock lobsters weighing 8 kg. Officer Chen asked him, "So you didn't know anything about that Tory?" Lavalle answered, "No": ERI page 62.

79. Ultimately, Officer Chen, after receiving many protestations of ignorance and a denial that Lochiel South would ever dodge tax by receiving cash, including cash payments received by Brancatisano, said to Lavalle; "All right. So then what I'm - what you're telling me is that the money from those receipts or records that we've identified, you believe Pat's been receiving those monies?" The ERI then sets out the following:

Lavalle; "If that's what the case is yes."

Chen; "If that's what the case is without your knowledge?

Lavalle; "Yes."

Chen; "Do you think it's also a coincidence that a lot of the - that most of these records that you haven't received, they never indicate what sort of fish that is being sold? I think it's a little bit funny isn't it?"

Lavalle; "That's - can you sorry?'

Chen; "So Pat's obviously making these records and…"

Lavalle; "Yes."

Chen; "… a lot of them don't even have what he selling to them….it's quite obvious from a fishery's perspective what it is an, you know that something we have to prove obviously but it's…"

Lavalle; " Yep."

Chen; "… it's interesting isn't it? Can you provide me with any other information in regards to this?

Lavalle; "No."

80. It is this conversation that is said to found the evidentiary basis for a claim of right. In assessing that evidence I am also required to take into account the evidence led on appeal without objection or contradiction that Lavalle is a person of good character.

Hypothesis consistent with innocence

81. All of the evidence and all of the circumstances established by the evidence must be considered in deciding whether in a circumstantial case there is an inference consistent with innocence. They are not considered in isolation. The evidence must be considered as whole and not by a piecemeal approach to each particular circumstance: Hillier v The Queen (2007) 228 CLR 618, at [46]. For an inference to be reasonable it must rest upon something more than conjecture: The Queen v Baden-Clay (2016) HCA 16; (2016) 258 CLR 308 at [47]

"It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it. In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused:" Weissensteiner v. The Queen [1993] HCA 65; (1993) 178 CLR 217.

Consideration s 65(1) FM Act

82. Lochiel South relies upon what Lavalle said his ERI. He professed ignorance of why invoices provided to purchasers on Lochiel South’s behalf were recorded by Brancatisano but were not in the Lochiel South records produced: see ERI pages 29, 30, 38 and 42. Lavalle could not explain why Lochiel South had no record of sales invoiced by Brancatisano. In the ERI he adopted the suggestion of Fisheries Officer Chen, at ERI page 23, "you can't explain it, is there a chance that something was going on with Pat and these sales." Neither Lavalle, in the interview nor his counsel in submission, appear to have detected the obvious irony inherent in Officer Chen's question.

83. I note again that the FM Act compelled Lochiel South to produce their records and as a director of Lochiel South, Lavalle was compelled to answer the questions: ss 256 - 258B FM Act.

84. In the Local Court the defence case was that Brancatisano's liability for any offence could not be proved beyond reasonable doubt, therefore there was no liability attaching to Lochiel South. On appeal Brancatisano's criminal liability was accepted but reliance was placed on Magistrate Williams making no specific finding of misfeasance against Lochiel South and Lavalle's protestations of ignorance in the ERI.

85. Magistrate Williams did not have to make a specific finding of misfeasance against Lochiel South or Lavalle. He made no reference to misfeasance in his judgement. Given the defence case in the Local Court no issue about misfeasance arose. That his Honour stated this proposition in his short sentencing remarks does not then mean that a positive finding there was no misfeasance was made; nor, even if made, that I should adopt it or give it any weight. I am entitled to make my own findings in relation to Lavalle's reliability, accuracy and believability in the ERI and how what he says measures against objectively established facts and the apparent logic of events: Fox v Percy (2003) 214 CLR 118 at [30]-[31].

86. A protestation of ignorance or innocence is not of itself evidence of an honest and reasonable mistake: see Proudman v Dayman and CTM. There was no evidence in the Local Court or put before me from which an inference could be drawn that Lochiel South took steps to avoid breaches of the FM Act and FM(G) Reg by them or by Brancatisano. It is not enough to suggest Brancatisano was employed to fulfil a specific role. It is not enough to suggest Brancatisano may have acted on his own.

87. In the absence of evidence the prosecution was entitled to rely, on appeal, as they did in the Local Court, on strict liability attaching to Lochiel South for the criminal actions of Brancatisano, their nominated fisher. There was no obligation on the Respondent to rebut what was not raised in evidence or submission.

88. The prosecution in every case have an obligation to prove their case beyond reasonable doubt. In a circumstantial case they have an obligation to address any reasonable hypothesis consistent with innocence, they do not have to meet every conceivable hypothesis. That a hypothesis was not raised by the defence at a hearing is highly suggestive it was not thought reasonable. There has been no suggestion on this appeal of incompetence by those who appeared for the Appellant in the court below.

89. That conclusion does not resolve the s 65 FM Act appeal. Mr Campbell advanced other propositions: Appellant's submissions MFI 1 at [20]. He submitted that Brancatisano's acts said to found Lochiel South's liability were charged as breaches of cl 22 FM(G) Reg. That clause has a maximum penalty of 100 penalty units. Lochiel South was charged pursuant to section 65 (1). That section carries a maximum penalty of 1000 penalty units. Mr Campbell submits that this is, "a matter of difficulty." As I understand the argument; Brancatisano was convicted of a regulatory offence (cl 22 FM(G) Reg) but that conviction led to a more serious offence being charged against Lochiel South and that this shows some defect going to the root of the proceedings.

90. There is no difficulty. There has never been any demurrer to the CANs on this basis. It is for Parliament to enact legislation and any penalty regime. It is for the prosecution to determine the appropriate charge. That Parliament has fixed two penalty regimes, one for individual offenders, the other for corporate offenders, does not invalidate a prosecution.

91. Nor can I accept Mr Campbell's submission that the evidentiary onus is raised because circumstantially an inference of ignorance of what was going on can be drawn from Lavalle's answers in the ERI: at Appellant's submissions [20.2.3]. The answers given do not of themselves raise evidence requiring rebuttal by the Respondent.

92. A court must consider whether an alternative hypothesis is raised by the evidence and whether it is reasonably possible. Speculative scenarios, whilst theoretically possible, must be considered against all proved circumstances but after such a consideration a court is entitled to reject them: See for example Ignatov v R [2018] NSWCCA 217 at [151]. Lochiel South's liability was not based on a circumstantial case against it specifically but rather was based on circumstantial cases, it is now accepted, were proved against Brancatisano.

93. The prosecution here, and in the Local Court, had an obligation to prove the elements of the offence charged against Lochiel South, and prove those elements beyond reasonable doubt. Here:

1. Lochiel South was a shareholder in the share management fishery.

2. The person nominated by the shareholder to take fish in the fishery was Brancatisano.

3. Brancatisano contravened provisions of FM Act or FM(G) Reg.

4. On 27 occasions Brancatisano committed a designated contravention by not attaching tags to Eastern rock lobster. They included:

• 20 offences of not attaching tag - eight of which were to sales purchasers nominated by the prosecution;

• 2 counts of not attaching the tag in the manner that it could not be removed without being broken; and

• 5 counts of not trimming tags.

94. Returning to the initial questions raised at [41] above. Lochiel South, as Brancatisano's employer was subject to strict liability. No evidence in the Local Court raised honest and reasonable mistake. An honest and reasonable mistake can't be presumed just because an employer says they are ignorant about their responsibilities or agrees to a proposition that they may have been unaware of criminal activity by an employee. Here, in any event, evidence would need to have been put before the Local Court that they took reasonable steps to avoid a particular event. While there is evidence that they employed Brancatisano and that he had expertise they did not have, that is not evidence that raises the "defence." There was no evidence here that required rebuttal by the Respondent prosecutor, and, while, as in every criminal prosecution ultimately a charge must proved beyond reasonable doubt, that onus has been met.

95. The evidence established each element of each offence beyond reasonable doubt. There is no reason to doubt the correctness of Magistrate Williams’ conclusion, that each offence having been proved against Brancatisano, Lochiel South was also liable. With respect to the submissions advanced on behalf of the Lochiel South, Magistrate Williams did not err. He did not misunderstand or misstate any matter of fact or principle. While the additional arguments require reconsideration and formal determination for each s 65(1) FM Act offence the Appeal must be dismissed.

Lochiel South - Conviction appeal - Clause 75 FM (G) Reg Breaches

96. Lochiel South was also convicted of three breaches of cl 75 FM(G) Reg said to have been committed on 13 February 2013, 14 February 2013, and 20 March 2013.

97. Brancatisano and Seacliff and Lochiel South were each convicted of offences arising from the events of 13 and 14 February 2013 relating to the sale of, respectively, 15 and then 36, untagged Eastern Rock Lobster. Seacliff records indicate purchases of Eastern rock lobster from Lochiel South but Lochiel South had produced no corresponding records.

The Local Court hearing – Clause 75 breaches

98. The events of 20 March 2013 concerned a similar allegation. However, Magistrate Williams was not satisfied beyond reasonable doubt that Seacliff was the purchaser. Accordingly, Seacliff was acquitted. His Honour was however satisfied Brancatisano sold 26 untagged Eastern rock lobsters on that day and convicted him. He also convicted Lochiel South who had produced no corresponding records

99. Each cl 75 case against Brancatisano and Lochiel South was circumstantial. The Respondent's case was that once Brancatisano's liability was established so too was the case against Lochiel South. They submitted that it could properly be concluded beyond reasonable doubt that Lochiel had produced no records because no records existed but that this conclusion did not of itself absolve the Appellant. To the contrary it was submitted that Lochiel South had no records because the sales were illicit. And, that while there were a number of competing hypotheses for the absence of records, none were consistent with Lochiel South’s innocence: See for example; Prosecution submissions Local Court, Appeal Book at page 441; Magistrate’s reasons at [243].

100. The offence of 13 February 2013, involved the alleged sale of 15 untagged Eastern rock lobster. Seacliff records included an invoice for $434, which although the 12.4 kg of "product" was unspecified, was Eastern rock lobster. It was marked “paid." There was a corresponding credit to Lochiel South for $434. His Honour held, correctly in my view, that those records corresponded to a discrepancy of 12.4 kg of Eastern rock lobster Brancastisano had taken on the Lochiel but which had not been logged, tagged and sold properly through the Wollongong Fish Cooperative.

101. His Honour summarised the prosecution submissions:

"As to CAN 5 (selling untagged lobster), the prosecution rely on the financial records of Seacliff which show a debt to Lochiel South for $434.00… when he sold the lobsters Brancatisano did so as an agent for Lochiel South, and it was to Lochiel South that the payment was directed. It follows Lochiel South sold the untagged lobsters:" Magistrate's reasons at [255].

102. His Honour noted that: in his ERI, Lavalle said he could not give any information about invoice 7; he could not explain why untagged lobster was sold; he agreed Lochiel South did not provide any financials records for this sale and could not explain why Seacliff produced a record for the sale. His Honour then noted, "He agreed that there was a chance that something had been going on with Brancatisano and the sales:" Magistrate’s reasons at [242].

103. His Honour then repeated the prosecution general submission: "Lochiel South did not produce a record because no record existed and that there were a number of competing hypotheses for this - none of which were consistent with innocence as regards this particular offence against Lochiel South:" Magistrate's reasons [243].

104. His Honour then set out Lochiel South's submissions; "Lochiel South repeats global submissions regarding the reliability of the prosecution's analysis of trap records, VMS data and the financial records. They submit the prosecution have not excluded either the possibility that what was sold to Seacliff was nor ERL [Eastern rock lobster] or that there was no transaction at all (because Lochiel South have no separate financial record). I have dealt with these issues in Part 1:" Magistrate's reasons at [265].

105. It had been submitted by Lochiel South in the Local Court that there was a doubt any transaction took place. In Part 1, at [31]-[37] of his reasons, his Honour addressed the issues raised by the incompleteness of Lochiel South records, given evidence that Brancatisano had sold "fish" to Seacliff and Seacliff's records show a payment to Lochiel South but Lochiel South’s financial records did not show a corresponding credit.

106. It is important to note that His Honour's reasoning cannot be confined simply to the three matters now the subject of this appeal. During the hearing his Honour considered a number of transactions for which no records were produced by Lochiel South. For example, he referred to 10 January 2014 where the payments were made in cash and those cash payments went to pay expenses for the business needs of Lochiel. He noted that;

1. Lavalle failed to explain why Seacliff produced no records.

2. Cash payments went to pay expenses for the business needs of Lochiel: (an explanation given by Brancatisano in his ERI).

3. Brancatisano may have withheld the money from Lochiel South.

4. Lochiel South may have chosen not to record the transactions given that they were illicit.

107. His Honour was thus aware of the alternative hypothesis. He concluded that as the Seacliff invoices indicate the amount was paid the proposition that Brancatisano may have completed invoices, given them to Seacliff and Seacliff recorded them as being paid to Lochiel South, when in fact no transection ever took place was on its face "an absurdity:" Magistrates reasons at [33]. Particularly when other evidence showed Brancatisano went to sea and took fish on the corresponding days.

108. On a number of occasions in his judgement Magistrate Williams gave careful consideration to the prosecution's onus to prove beyond reasonable doubt that no reasonable hypothesis exists which is consistent with the innocence of a defendant. For example at [44] he said:

"However, it is well settled that such an innocent hypothesis must be raised by the evidence in the proceedings. As the High Court said in The Queen v Baden-Clay (2016) HCA 16; (2016) 258 CLR 308 at [46]-[48]:

For an inference to be reasonable, it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence."

109. His Honour also had the benefit of hearing and reviewing all the evidence over a two year period. That evidence included, as exhibits, SMS messages and other evidence concerning interactions between Lavalle and Brancatisano and purchasers of various fish caught on the Lochiel and sold by Brancatisano for Lochiel South.

110. He also considered Lochiel South's possible motive to commit offences. Lochiel South had submitted that the objective evidence was inconsistent with an inference that the motive for the tagging breaches was to surreptitiously exceed Lochiel South's allocated lobster fishing share quota, since a quota is tradeable - it can be bought or leased from other fishers if the allocated quota runs out. His Honour concluded:

"This submission disregards the fact that the buying or leasing of quota costs money. It is obviously in the financial interests of a fishing business to retain quota, since the quota is a valuable commodity which can either be used (for profit) or traded (for profit). The mere fact that there is a mechanism by which additional quota can be bought does not in any way detract from the fact that there is an implicit commercial advantage in not declaring lobsters against the quota:" at [47].

111. He accepted that this motive arose objectively from the valuable nature of quota and that this motive was one matter to be considered in the prosecution’s circumstantial case.

112. All these matters ultimately led His Honour to conclude that what was raised by Lochiel South, said to create a doubt about the meaning of the Seacliff records, were not borne out by the evidence and that the case against Lochiel had been established beyond reasonable doubt. In summary, His Honour agreed entirely with the formulation of the prosecutor noting it was the combination of evidence that led to findings of guilt in relation to each accused, including Lochiel South: Magistrate’s reasons at [266] - [268]. Similar conclusions were reached in relation to each of the other cl 75 offences.

Appeal submissions – Clause 75 offences

113. Lochiel South now submits Magistrate Williams erred and that I would reach a different conclusion and acquit Lochiel South of each cl 75 offence.

Firstly; because Lochiel South had met its evidentiary onus raising honest and reasonable mistake, which evidence had not been rebutted. In particular, it is submitted, as the payment on 20 March 2013 was recorded by Brancatisano as "cash", the only or most readily available inference was Brancatisano did what he did independently of Lochiel South and did so dishonestly without any connection to Lochiel South.

Secondly; as the evidence against Lochiel South was circumstantial a hypothesis reasonably consistent with innocence was available: that is; Brancatisano was acting criminally for his own sole benefit without the knowledge of his employer.

Thirdly, the 20 March 2013 offence was particularised in the CAN as quoted "sale to Seacliff" that particular could not and had not been proved.

Fourthly, an honest and reasonable mistake based on Lavalle's and thus Lochiel South, ignorance is obvious from what Lavalle said in his ERI.

Fifthly, and finally, each count required proof Brancatisano acted as an agent for Lochiel South. Accordingly, the prosecution had the onus to prove he was authorised "to sell untagged lobsters on his principles behalf before Lochiel South could be made complicit." Reliance was placed on Crabtree - Vickers Pty Ltd v Australian Direct Mail Advertising and Addressing Co, Pty Ltd (1975) 133 CLR 72 at [12] and [13].

Consideration

114. It is only necessary that sufficient particulars be given to enable the charge to be met. The acquittal of Seacliff for the 20 March 2013 offence did not provide a defence for Lochiel South. While a purchaser, "Seacliff," was particularised in the CAN, that particular was not an essential or necessary element of the offence.

115. Cl 75 requires prove beyond reasonable doubt of:

1. Sale of Eastern Rock lobster without a tag. And,

2. Proof that the lobster was taken to New South Wales

116. It was Brancatisano's activities each day that gave rise to Lochiel South's liability. All the evidence in the Local Court, including discrepancies in catch and tag records, establishes beyond reasonable doubt that Brancatisano took Eastern rock lobster and that the specified quantity of Eastern rock lobster sold on each day were not tagged. There is evidence that establishes beyond reasonable doubt that Brancatisano sold untagged Eastern rock lobster on each day. Brancatisano was Lochiel South's nominated fisher. He acted on their behalf and invoiced on their behalf.

117. Although Magistrate Williams refers to a prosecution submission about agency they were not obliged to prove agency, implied or actual. No reason has been advanced by Lochiel South why that is required. The law of agency had no relevance to this appeal.

118. The prosecution case was based on proof Lochiel South was the shareholder and that at all relevant times Brancatisano was nominated to take Eastern rock lobster for sale on its behalf: Appeal Book page 443. Brancatisano sold Eastern rock lobster on Lochiel South's behalf and on these three occasions the Eastern rock lobster sold were untagged. These proved facts established Lochiel South liability for the cl 75 offences.

119. That liability was based on Brancatisano being Lochiel South’s nominee. It was not based solely on his actions on the specific days nominated but on his course of action over the offending period. Lochiel South offered no explanation as to why corresponding documents were not produced. Lavalle, as a director of Lochiel South, was asked in the ERI specifically about his general and specific responsibilities. Those answers indicate he was aware of his general responsibilities as a director of a shareholder. They also indicate a degree of prevarication when confronted with the description of what could be seen on the surveillance video recordings. Lavalle was not frank in his interview. That conclusion can be drawn from all the evidence including his responses and manner of responding in the ERI. I could not rely on what Lavalle said in the ERI or any assertion in it unless it was tested or supported by other objectively verifiable evidence.

120. No reasonable explanation other than Lochiel South was benefiting from the actions of Brancatisano was available on the evidence. Lochiel South was accordingly found liable.

121. Although not pressed in the Local Court the potential hypothesis that Brancatisano was acting solely for his own benefit on these three occasions outside of duties and responsibilities as their nominated fisher and solely for his own benefit, without any knowledge, must be considered. Magistrate Williams obviously considered it and rejected it.

122. As with many appeal cases, while I have reviewed the evidence in the light of the submissions I have received I was not taken to, nor have I been asked to read, all of the evidence in the Local Court: Fox v Percy at [25]. In order to consider whether Magistrate Williams erred I must make my own determination. In doing so I have taken into account that his Honour heard all the evidence and he had the advantage of considering it in its entirety, in the light of the comprehensive submissions he undoubtedly received. He had the advantage of the "feel" of the case and a capacity to evaluate witnesses' credibility which I do not.

123. I note Lochiel South could benefit if untagged lobster were sold on its behalf: for example; it would not exceed its quota; off-book sales need not be accounted for or taxed; and, more Eastern rock lobster could be caught and sold to meet the quota or unused portions of quota sold. There was thus a motive to sell untagged Eastern rock lobster and not to record sales of them.

124. I also note that these isolated occasions were not the only times Brancatisano breached obligations under the FM Act. His actions were systematic and occurred over a long period. During all these times Lavalle for Lochiel South took an interest in what Brancatisano was doing on the Lochiel. As a shareholder he had an obligation to do so. His interest could not be regarded as mere idle curiosity. He was a director of a shareholder, Brancatisano was his nominee. He was regularly present on board the Lochiel after it arrived in harbour as its catch was off-loaded. He was not, as he implies, ignorant.

125. No evidence that Brancatisano was committing a subterfuge against his employers was led in the Local Court or before me. The assertions made by Lavalle in his ERI could not be tested and were not convincing. For an inference to be reasonable, it must rest upon something more than mere conjecture and speculation.

126. There is no reason to doubt the correctness of Magistrate Williams conclusion. Each cl 75 offence has been proved against Lochiel South. With respect to the submissions now advanced on behalf of the Lochiel South, Magistrate Williams did not err. He did not misunderstand or misstate any matter of fact or principle. While the additional arguments require reconsideration and formal determination, each cl 75 appeal must be dismissed.

Appeal of Tory Lavalle

127. Magistrate Williams held that the prosecution had proved beyond reasonable doubt that the Appellant, Tory Lavalle, committed 3 offences; each was charged pursuant to sections 279(1) and 65 (1) FM Act: being the director of a shareholder company, to knowingly permit a contravention of the management plan by a nominee.

128. Two counts arose out of an incident on the Lochiel on 24 February 2014. The first count alleges Lavalle permitted Brancatisano to commit the offence of not trim a tag immediately after attaching it to rock lobster; 222 rock lobsters were involved. It is also alleged that on that day Lavalle permitted another contravention by Brancatisano when he failed to attach tags to 22 rock lobsters. The offence of 14 May 2014 relates to Lavalle permitting Brancatisano to not attach tags to 12 Eastern rock lobster.

129. Each offence alleged specific acts by Lavalle that proved he knowingly permitted contravention of the Management Plan by Brancatisano. Each prosecution relied on inferences being drawn from what could be gleaned from surveillance videos taken by Fisheries Officers of what occurred on board of the Lochiel on the specific occasions nominated.

130. I viewed each surveillance video recording. I was taken through them during the course of the hearing by both the Appellant's and Respondent's counsel. I had the opportunity of discussing with them what could be seen and what could not. This is in short summary what I saw:

1. That on 24 February 2014 Lavalle was with Brancatisano on board the Lochiel which was moored at the wharf in Wollongong Harbour.

2. A catch of Eastern rock lobster was being processed on board.

3. Lavalle is present and observes the tagging process by Brancatisano and his deck hand.

4. Lavalle looks into a tub of untagged Eastern rock lobsters, which had been separated from other boxes of tagged lobsters.

5. Lavalle looks into the boxes of lobsters that had been tagged. It is obvious from what had occurred on board that they had not had their tag clipped.

6. It is obvious the requirement tags be clipped immediately had not been clipped or trimmed immediately after the tags were placed on them.

7. The boxes contained a large quantity of tagged but untrimmed Eastern rock lobster.

131. These observations substantially accord with what was submitted by the Respondent. From them the Respondent submits I could conclude beyond reasonable doubt that it was so obvious that tags had not been attached or that the tags had not been immediately trimmed that Lavalle by his presence had permitted his nominated fisher to do what he did.

132. When interviewed on 30 October 2015, Lavalle was asked about his general knowledge and responsibilities as a shareholder in Fisheries Management Plan. His answers show he was aware of his responsibilities as a director and shareholder: ERI pages 5 and 6.

133. The video recording from 14 May 2014 again shows Lavalle on board the Lochiel. On this occasion he is assisting with the tagging of Eastern rock lobster. Some of the tags attached by Brancatisano or his deckhand come from a fresh role or packet. Lavalle is also seen to take some pre-looped tags from a bag and assist Brancatisano in placing these pre-looped tags on Eastern rock lobster. Lavalle was acquitted by Magistrate Williams of an offence relating specifically to this action. This was, in my opinion, a generous finding but Lavalle must have the full befit of his acquittal.

134. While Lavalle is on board and assisting, Brancatisano places 12 Eastern rock lobster in a separate fish box. Those Eastern rock lobster were not tagged while Lavalle was on board the Lochiel or at all. Although Lavalle left the Lochiel before the boxes were removed, the Respondent submits that it is obvious Brancatisano had Lavalle's permission not to tag those 12 Eastern rock lobster and by isolating them in a separate fish box he indicated, in Lavalle's presence, a clear intention that so far as those 12 Eastern rock lobster were concerned; they were never going to be tagged as required.

Appellant's contentions

135. On appeal it was argued first, that Magistrate Williams had failed to give proper regard to the fact that Lavalle was a man of good character. This point was not raised below and no evidence of that fact was led until sentence. As I have already indicated I now have that evidence and I accept it. I proceed on the basis that Lavalle is a man of good character. I will take this fact into account when I come to assess whether a man of good character would have committed the offences alleged and when I come to assess the credibility of the answers he gave in his ERI.

188. It is submitted that the total fines were “enormous” and “manifestly excessive.” The following errors principle was suggested:

• An error in applying the principle of totality by ignoring the principles set out in Pearce v The Queen (1998) 194 CLR 610

• A wrong characterisation of the objective seriousness of the offences.

• Failure to have regard to the absence of prior offending and to the unlikelihood of any future offending.

• No regard whatsoever to the possibility of additional extra curial penalties, which included the cessation of commercial fishing following the arrest of Brancatisano.

• No regard was had to the asserted fact that the corporation was also a victim of Brancatisano’s criminal activity.

• No mention was made of specific deterrence.

• An error in finding that Lavalle had “abdicated his responsibility to the company” and that “the corporate structure is not a license to conduct commercial enterprises free of risk which it is said was inconsistent with his finding of lack of the misfeasance.”

• No consideration was given to size of the corporation or its capacity to meet a fine.

• No consideration was given to the additional pecuniary consequences to the corporation or to the fact that by ordering costs and the share forfeiture the learned magistrate triggered a situation whereby the Department/prosecutor refused to allow renewal of the lease when it fell for renewal. And, that Lochiel South suffered enormously from these continuing pecuniary consequences.

192. It was further submitted that Lavalle’s offending were isolated and occurred only over the very latter part of Brancatisano’s offending. Given that Fisheries had allowed Brancatisano to continue offending for a long time after his offending had become known to them; “had the department shut down Brancatisano’s activities earlier than it did then Lavalle would not have become involved at all:” Appellant’s submissions [26.13]. Reference was made to DPP v Barnes [2006] NSW CCA 246; Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; 254 FCR 68 and Mill v The Queen [1988] HCA 70; 166 CLR 59.

193. It was submitted that I would find that the s 65 offences were committed solely by Brancatisano and that I would not make a finding of the same nature against Lochiel South. Rather I would treat it as the Magistrate did an offence of strict liability not involving any actual criminal conduct by Lochiel South as it cannot be established beyond reasonable doubt that there was any complicity by any officer of the corporation: A corporation that was the victim of criminal conduct engaged in by an employee which did not itself derive any profit or benefit from the contraventions.

194. As to costs, reliance was placed upon submissions that it was expected Brancatisano’s counsel would raise. Those submissions were not made. Brancatisano withdrew that aspect of his appeal. Mr Campbell did suggest that as a percentage of the total costs the Magistrate had imposed disproportionate liability on both Lochiel South and Lavalle.

195. On the question of forfeiture it was submitted that the matter ought to have been left to the Minister for his consideration. The Minister could then have considered the matter as part of an independent administrative scheme that has specific checks and balances and discretions built into it with procedural fairness protections. The reason given by Magistrate Williams that this would involve “yet another round of no doubt protracted proceedings in terms of submissions to the Minister and the like”, it was submitted, were not properly relevant to his consideration of whether or not to exercise his discretion. It was submitted the magistrate effectively removed procedural fairness protections to which Lochiel South was entitled.

196. It was further submitted that Magistrate Williams fell into error by concluding Lochiel South was not a proper receptacle of the trust placed on it. This it is said conflicts with earlier findings that Lochiel’s liability was strict and did not arise from any conduct on its part.

197. Further supplementary written submission went to proper application of R v Doan [2000] NSWCCA 71. There is a general rule that where an offender is dealt for an indictable offence in the Local Court the maximum penalty is a relevant factor and that the jurisdictional limit of the Local Court places a cap on the sentence able to be imposed. This cap is not to be viewed as a maximum penalty to which guidance is had on sentencing. Reference was also made to Zreika v R [2012] NSWCCA 44, where it was held that if ordinarily a matter could have been and would have been dealt with in the Local Court but was prosecuted on indictment this factor can be taken into account on sentencing.

198. The Appellant submitted that although FM Act offences are summary, it is possible for them to be dealt with in either the Supreme Court or the Local Court. When the matter is dealt with in the Local Court this should be seen as a concession that the level of seriousness was such that the proceedings could properly be disposed of within the usual constraints of that jurisdiction and that accordingly Doan did not apply. Further, that to impose fines on Lochiel South in the manner he did such that they totalled in excess of 17 times the jurisdictional maximum available constituted serious error.

The Respondent’s submissions

199. Mr Averre, for the Respondent, drew my attention to the conclusions of the Magistrate as regards maximum penalty and jurisdictional limit at transcript 2357: “In this case, given the high maximum penalty of so many of the offences, it is the case that in many instances I have reached the jurisdictional limit for individual offences. That result is not surprising. For example in respect of the offence where the maximum penalty is $550,000 the jurisdictional limit of $22,000 represents less than 5% of that maximum penalty and it would be a relatively trivial case which did not meet or exceed that jurisdictional limit.”

200. Reference was made to what was said by the plurality in Markarian v The Queen (2005) CLR 35, at 31: “It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all other relevant factors, a yardstick.”

201. It submitted that the Magistrate’s approach was consistent with both Doan and Markarian and that he properly confined the penalty in conformity with the jurisdictional limit.

202. The fact that the matters are capable of prosecution the Supreme Court, it was submitted, is of no moment. I was urged to assess the objective seriousness of the individual offences by reference to the maximum penalty and also having regard to all relevant sentencing considerations, fix a penalty subject to that the relevant jurisdictional limit.

203. The Respondent accepted Magistrate Williams’ assessment that the offending was far from low level but was sustained, consistent and systematic and that often involved large quantities of Eastern rock lobster but even where the qualities were small, in context, the criminality still required penalties that would exceed the jurisdictional limit.

204. My attention was drawn to the fines imposed on the others involved. Parity principles compelled, it was submitted, a similar result so far as the present Appellant are concerned. It was noted that questions of concurrence and accumulation are discretionary: Johnson v The Queen (2004) 78 ALJ R 616 at [26]; JT v R [2012] NSWCCA 133.

205. My attention was drawn to the financial advantage that could have accrued to Lochiel South as a result of the offending. An unused quota can result from non-reporting of significant quantities of Eastern rock lobster as occurred here. A shareholder can lease out any unused quota. It was noted that on many occasions Lochiel South did not produce adequate records. Non-reporting of Eastern rock lobster meant that more Eastern rock lobster could be taken and sold. I was reminded that on at least two occasions Lavalle was present and aware of Brancatisano’s illegal activity. It was noted that Magistrate dealt with all of the issues that have been raised and had the benefit of oral submissions and lengthy the written submissions: Appeal Book 4/8 - pages 1380 to 1395.

Consideration

Fines

206. The maximum penalty for a s 65 FM Act offence is 1,000 penalty units for a corporation or 500 penalty units in any other case. Offences against cl 75 FM (G) Reg carry a maximum fine of 100 penalty units for a corporation and 50 penalty units in any other case. A penalty unit was and is currently set at $110: s 17 Crimes (Sentencing Procedure) Act 1999. In each case the maximum penalty could not be imposed because of the jurisdictional limit of the Local Court: s 268 Criminal Procedure Act 1986. Further, s 272 FM Act restricts the maximum monetary penalty that can be imposed in the Local Court to 200 penalty units or $22,000.

207. It was argued that s 272 FM Act fixed the maximum penalty at $22,000 and that accordingly this was not a cap and that it was to be regarded as a guide for a worst case offence in the Local Court. Accordingly, what was said in Doan did not apply.

208. Section 277 does not say this. It’s wording is clear. It does not vary the maximum penalty fixed by Parliament. It simply restricts the maximum monetary that may be imposed by the Local Court. Nothing advanced by the Appellant could detract from my obligation to apply what fell from the Courts in Markarian and Doan. That the matter could have been dealt with by the Supreme Court and that that Court could have imposed higher penalties is not a relevant consideration.

209. The fines imposed were criminal penalties. A court in imposing a criminal penalty must have regard to the often competing purposes of punishment: ss 3A and 21A Crimes (Sentencing Procedure) Act 1999. In each matter I must consider the objective seriousness of what was done, any matters raised in aggravation and of course mitigation and fix an individual penalty for each offence. I can then have regard to the principle of totality – the requirement that the total penalty be just and appropriate to the totality of the criminal behaviour. I do not simply do the arithmetic and pass the sentence that the arithmetic produces: Mill v The Queen at 56-57. As fines are imposed, and they cannot be made wholly or partially concurrent, it may be necessary to lower or moderate a fine below what is otherwise appropriate to reflect the fact a number of sentences are being imposed if the aggregation would be excessive: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union at [116] & [118].

210. Any penalties imposed should also bear some relativity and take into account the penalties imposed on co-offenders -“like must be compared with like.” This principle is known as parity. It is the classic example of the need to, so far as possible, ensure equal justice: Green v The Queen (2011) 244CLR 462; Afu v R [2017] NSWCCA 246. Those penalties were determined by Magistrate Williams having regard to the circumstances of the co-offenders and their respective degrees of culpability. With the exception of the custodial penalties imposed on Brascatisano none were appealed.

Fines - Lochiel South

211. As I have found Lochiel South was criminally responsible for the crimes committed by Brancatisano. That liability was strict. It was strict in order to ensure that as an employer appropriate measures were taken to ensure the protection of the industry in which Lochiel South was engaged. It was not necessary that any officer of the corporation be found to be liable- that point was made by Magistrate Williams. It does not then follow that Lochiel South should be treated as an innocent victim of Brancatisano’s crimes. To the contrary, Lochiel South must be punished for a series of breaches of the FM Act over a period of time, which breaches had an impact on the fishery.

212. Each offence subverted the quota system; a system designed to ensure that the Eastern rock lobster fishery continue on a sustainable basis. The offences involved varying quantities of Eastern rock lobster- an important measure of criminality. Professed ignorance does not mitigate.

213. There is no evidence proved beyond reasonable doubt of any significant aggravating features such as deliberate or covert conduct by Lochiel South. But on the other hand having rejected Lavalle’s assertions in his interview and there is an absence of evidence from which I could conclude on balance that Lochiel South was simply careless about its obligations. I must sentence according to what was proved: Olbrich v The Queen (1999) 199 CLR 270.

214. I can have regard to the conduct the FM Act and regulations penalise. I can have regard to the enterprise in which Lochiel South was involved and that it was required to take proactive steps to avoid breaches. And that these were apparently not taken. With opportunity for profit comes responsibility. Accordingly, appropriate punishment must contain elements of both personal and general deterrence in order to advance the objects of the FM Act.

215. Material was tendered in the Local Court: Appeal Book 4/8 tab 29 pages 1409-1422. They were accompanied by extensive submissions that addressed all relevant matters and made concessions not now made; for example in relation to how Doan applied: Appeal Book 4/8 tab 28 pages 1380-1408 Those submission set out some financial material which, if accepted, indicated that Lochiel South’s assets were the estimated value of its shares in the lobster and tuna fishing industry. There was no new material tendered on appeal apart from matters set out in the Appellant’s written submissions.

216. There was, and is, no evidence of remorse. The manner in which the hearing and the appeal were conducted demonstrates this.

217. No evidence of any system designed to prevent offending other than “we trusted Brancatsiano” was led. Matters raised in evidence in the Local Court on sentence – no prior record - financial impact on those who loaned money to the corporation - were of limited importance relative to the need for properly deterrent penalties that had appropriate relativity to those imposed on others involved.

218. Magistrate Williams attempted to do this. I cannot fault his reasoning process or the results reached. Each sentence reflects relevant matters were taken into account. Each reflected the objective seriousness of the individual matter. To avoid any suggestion of double punishment matters involving offending on the same day were dealt with pursuant to s 10A Crimes (Sentencing Procedure) Act 1999; his Honour fairly determining that it was inexpedient to impose any punishment other than conviction.

219. I do not regard the costs awarded or the forfeiture order as extra curial punishment. Costs were the natural result of losing what were protracted proceedings during which every point open was taken and in the main lost. Forfeiture, subject to what is set out below, followed conviction as part of the scheme of the FM Act and the Management Plan.

220. It follows that, and exercising my own consideration, the fines or penalties imposed on Lochiel South individually and collectively, just and appropriate.

Tory Lavalle

221. Mr Lavalle was fined for three offences. It is accepted he was a person of good character, active in charitable works, with no history of Fisheries or in deed any other offending. He will have little opportunity to offend again. Each offence involved a quantity of Eastern rock lobster. Magistrate Williams did not distinguish between the amount as the same fine was imposed for offences on 24 February 2014 involving the failure to trim tags on 222 Eastern rock lobster and the failure to tag 22 Eastern rock lobster. His Honour‘s reasoning was succinct but not entirely clear; “So far as the fines are concerned although I have two offences for the one day, 24 February, I have not dealt with one as an index offence because there are questions of his direct knowledge at the time of the offence and they involve different conduct”: transcript 13 December 2017 page 7.

222. Having reviewed the evidence I found that Lavalle permitted a contravention of the Management Plan involving a substantial quantity of Easter rock lobster (222) to not immediately have their tags trimmed. He may not have known the exact number but he was aware it was significant. He then permitted a much smaller amount (22 on 24 February 2014 and 12 on 14 May 2014) to not be tagged at all.

223. While it would appear the offence involving 222 Eastern rock lobster was the more serious it was appropriate to reduce or moderate the penalties for both offences on 24 February to give effect to the totality principle. Frankly, I may have imposed a higher penalty for the failure to trim offence but procedural fairness dictates I cannot increase the penalty imposed without appropriate notice and warning: Parker v DPP (1992) 28 NSWLR 282. The repeat offence on 14 May justified a higher penalty, which when gauged against the maximum available and the jurisdiction limit seemed reasonable. Overall the total fine of $40,000 by comparison with fines imposed on others seemed just and appropriate and any interference with Magistrate Williams’ orders would be tinkering without substance.

Costs

224. Magistrate Williams orders were soundly based and eminently reasonable given the length and complexity of the hearing in the Local Court. They were appropriately proportioned. No argument has been advanced justifying any interference with them. The appeals against the costs order are dismissed,

Forfeiture

225. A power undoubtedly exists in s 75 FM Act to order forfeiture of shares in a share management fishery. Lochiel South is guilty of 27 offences that can give rise to forfeiture. That the Minister also has power to order forfeiture because the offences give rise to demerit points, which well and truly exceed the threshold, is relevant to the exercise of a discretion but not determinative of it.

226. Lochiel South was convicted of offences that had actually and potentially serious impact on the fishery and the share management scheme. Lochiel South did not demonstrate any competence in preventing offences by their nominated fisher. There was no evidence they took any positive steps to prevent their nominated fisher from offending. A director, Lavalle also offended.

227. Magistrate Williams having heard all the evidence and submissions was in the ideal position to determine the issue. He did not deny Lochiel South procedural fairness. They were on notice and the matter was addressed by them in their submissions to him. He had proper regard to all the arguments put before him. Nothing put on appeal suggests any error or any compelling reason why I should reach a different conclusion.

228. As His Honour said at transcript 13 December page 15: “ …[T]here were many breaches on the watch of Lochiel South, it had ultimate responsibility to make sure that those breaches did not occur. It did not do so. It was entrusted by the State with the privilege and responsibility of being a participant in this important fishery and it failed to adhere to its obligations. It was not a proper receptacle of the trust emplaced on it.” I agree. The appeal against the forfeiture order is dismissed.

Orders:

Lochiel South:

Conviction Appeal dismissed.

Sentence appeal dismissed - all orders of Local Court confirmed.

Appeal against Costs order - appeal dismissed - all orders of Local Court confirmed.

Appeal against Forfeiture order- appeal dismissed - all orders of Local Court confirmed.

Appellant to pay respondent’s costs of the appeal as agreed. If costs cannot be agreed – leave to both parties to restore within 28 days.

Tory Lavalle

Conviction Appeal dismissed.

Sentence appeal dismissed - all orders of Local Court confirmed.

Appeal against Costs order - appeal dismissed - all orders of Local Court Confirmed.

Appellant to pay respondent’s costs of the appeal as agreed. If costs cannot be agreed – leave to both parties to restore within 28 days.

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Decision last updated: 26 February 2019