Moyce v Minister for Fisheries

[2002] NSWADT 61

CITATION:	Moyce -v- Minister for Fisheries [2002] NSWADT 61
DIVISION:	General Division
PARTIES:	APPLICANT Jason Edward Moyce RESPONDENT Minister for Fisheries
FILE NUMBER:	013316
HEARING DATES:	08/02/2002
SUBMISSIONS CLOSED:	02/15/2002
DATE OF DECISION:	04/24/2002
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Fisheries Management Act - fishing licence - revocation of endorsement on licence - Fishing licence - revocation of endorsement on licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Fisheries Management (General) Regulation 1995 Fisheries Management (Lobster Share Management Plan) Regulation 2000 Fisheries Management Act 1994
CASES CITED:
REPRESENTATION:	APPLICANT F Doyle, solicitor RESPONDENT N Francey, barrister
ORDERS:	The decision of the Minister to cancel the commercial fishing licence and endorsements held by Jason Edward Moyce is affirmed.

Background
1 These proceedings relate to a decision made by the Director, NSW Fisheries as a delegate of the Minister for Fisheries (“the Respondent”), to cancel the commercial fishing licence and endorsements held by Jason Edward Moyce (“the Applicant”). The decision to cancel the Applicant’s licence and endorsements followed the Applicant’s convictions for offences under the Fisheries Management Act 1994 (“the Act”) and the Fisheries Management (General) Regulation 1995 (“the Regulation”).

2 This matter was heard with the matter of Edward Sydney Moyce v Minister for Fisheries, a related matter involving the Applicant’s father. The circumstances of the two matters are closely linked and the submissions made in relation to the two matters are similarly linked. In my Reasons for Decision in the matter of Edward Sydney Moyce. I have set out the facts leading to the Applicant’s conviction and general submissions made by each party. It serves little purpose to repeat much of that material in these reasons. Similarly issues relating to the Tribunal’s jurisdiction have been discussed in the matter of Edward Sydney Moyce and are not repeated.

3 The Applicant is 29 years of age, and has worked in the industry as a commercial fisher for 14 years. The Respondent’s records show that the Applicant was issued a commercial fishing licence on 22 November 1988. The licence has been renewed annually and the last issued licence is due to expire on 23 November 2002.

4 On 4 January 2000, the Applicant was charged with offences committed in December 1999. On 24 August 2001, after a defended hearing in the Local Court lasting from July 2000 to July 2001, the Applicant was convicted of Larceny (8 lobsters) and 3 counts of Interfere with Set Fishing Gear (3 fish traps).

5 The Notice of Cancellation was provided to the Applicant by letter dated 28 November 2001. That letter stated:

“In accordance with section 104(4)(e) of the Fisheries Management Act 1994 and clause 140(b) of the Fisheries Management (General) Regulation 1995, I hereby cancel your commercial fishing licence. In accordance with section 104(6) of the Act, I hereby revoke all endorsements on your licence.

Cancellation is effective from the date of this letter. While you may apply for a new commercial fishing licence at any time, clause 137(1 ) of the Regulation provides for the refusal to issue a commercial fishing licence for the same reasons for which your licence has been cancelled. Accordingly, I will not consider any application for a new licence for at least one year.

Similarly, clause 11 of the Fisheries Management (Lobster Share Management Plan) Regulation 2000 provides for refusal to endorse a commercial fishing licence for the Rock Lobster Share Management Fishery. This provision will apply for at least three years.”

6 Following receipt of the Notice of Cancellation, the Applicant sought an internal review of the decision. Ms Kay Smith undertook that review on 24 December 2001. Ms Smith affirmed the Minister’s decision to cancel the Applicant’s licence. The Applicant was given notice of Ms Smith’s decision by letter dated 8 January 2002.

Decision Under Review
7 On 20 December 2001 the Applicant applied to this Tribunal for review of the Respondent’s 28 November 2001 decision. At the time of filing of the application the Applicant was not aware of the result of the internal review. He also applied for an urgent stay of the decision on the basis that he relies on his commercial fishing licence for his livelihood. The matter of the stay came before the Deputy President of the Tribunal on 2 January 2002 and the stay was granted. That stay remains in force. The Deputy President put in place a timetable for the filing of documents leading to a hearing of the matter on 8 February 2002.

8 The reviewable decision is that of the Minister to cancel the Applicant’s licence and endorsements, advised to the Applicant by letter dated 28 November 2001.

Evidence
9 The Tribunal heard evidence from the Applicant, Mr Edward Moyce, the Applicant’s father and business associate, and Mr Scott Maxwell Westley a commercial fisherman who is also an industry representative on the Management Advisory Committee for Lobster Share Management Fishery. Each of these individuals also prepared statements which were filed in the proceedings.

10 The Applicant also put in evidence a number of testimonials which purported to testify to his good character, along with various items of correspondence between the Applicant’s solicitor, NSW Fisheries and the Respondent. The Respondent put in evidence a number of documents relating to the Applicant’s convictions.

The Applicant’s Background
11 The Applicant commenced employment in the fishing industry when he was aged 15 years. He has no other educational or employment qualifications. He left school before completing his School Certificate Examination. He received his commercial fishing licence in about 1988 and since that time he has operated a fishing business with his father.

12 As noted above, the Respondent’s decision to cancel the Applicant’s licence followed convictions on 24 August 2001. Those convictions related to events which occurred in December 1999. Prior to his 1999 offence, the Applicant had several other convictions in relation to his fishing activities. His record shows that in 1988 and 1992 charges against him were found proven but no conviction recorded. He has convictions recorded from 16 March 1989, 26 June 1991, 23 July 1992, 4 January 1995 and 23 June 1999. In relation to the 1989 conviction he was placed on a good behaviour bond. In 1991 he was fined a total of $600. In 1995 he was fined $500 and in 1999 he was fined $1500. The Respondent took no action in relation to his licence following any of those convictions.

13 The Applicant has made submissions in relation to those convictions, and requested that the Tribunal to take extenuating circumstances into account. In his statement dated 4 February 2002 he stated:

“(a) In relation to the charge dealt with on 26.2.1988, this offence occurred when I was aged 15 years. I pleaded guilty and didn't take legal advice at the time, when I appeared in the Children’s Court.
(b) In relation to the charge dealt with on 16.3. 1989, this offence occurred when I was aged 16 years. Again, I pleaded guilty without taking legal advice when I appeared in the Children's Court.
(c) The convictions on 26.6. 199l related to fishing in an area which, at that time, had recently become an aquatic reserve. However, I had at that time received no notification of this from N.SW. Fisheries. At the time, I was fishing under bright lights. When the Fisheries boat approached, I called out to them "Don't run over the net." Again, I pleaded guilty without taking legal advice.
(d) The charge on 23.7.1992, which was dismissed without recording a conviction, related to fish that were only marginally undersized. Even with every care, it is possible for undersized fish to slip through in a large catch.
(e) With respect to the conviction on 4.1.1995, my father was ill and had approached N.S.W. Fisheries for permission for me to temporarily work his lobster pots in his stead. Permission was granted verbally, but the paperwork hadn't come through at the time. I honestly believed I had permission to fish. After the case was dealt with the written permission came through. I pleaded guilty to the charge without taking legal advice.
(f) The charge on the 23.6.1999 was an appeal to the Sydney District Court against conviction and sentence, in the Local Court. I continue to deny that charge. I did not have the financial resources to appeal the Magistrate's decision and my solicitor and barrister who conducted the appeal without fee, informed me they believed there had been a miscarriage of justice in the Local Court.”
14 The Applicant’s evidence is that he has limited assets. His taxable income for the 1999/2000 tax year was $19,705.00. He assists in the support of his two children, and is liable to pay Child Support in the sum of $75.00 per week. He is dependent on fishing for his livelihood.

The 1999 Offences
15 On 23 August 2001 the Applicant was convicted of several offences which, as charged, read:

“That Jason Edward Moyce between the 27th day of December 1999, and the 29th day of December 1999, at La Perouse, in the State of New South Wales, did steal certain property of the value of $400, to wit, 8 Eastern Rock Lobsters, the property of NSW Fisheries.”

“That Jason Edward Moyce between the 27th day of December 1999, and the 29th day of December 1999, at La Perouse, in the State of New South Wales, was in possession of fish taken in contravention of a provision of or made under the Fisheries Management Act, 1994. Section 35(1), Fisheries Management Act 1994.”

“That Jason Edward Moyce between the 27th day of December 1999, and the 29th day of December 1999, at La Perouse, in the State of New South Wales, did without reasonable excuse, interfere with set fishing gear being commercial a rock lobster fishing trap marked R. FIRKIN 11442. Clause 107(1), Fisheries Management (General) Regulation 1995.”

“That Jason Edward Moyce between the 27th day of December 1999, and the 29th day of December 1999, at La Perouse, in the State of New South Wales, did without reasonable excuse, interfere with set fishing gear consisting of a rock lobster fishing trap marked R. FIRKIN 11442. Clause 107(1), Fisheries Management (General) Regulation 1995.”

16 The events and evidence leading to the Applicant’s convictions in relation to these charges are as set out in my Reasons for Decision in relation to the matter of Edward Sydney Moyce and are not repeated here. The Applicant pleaded not guilty to the charges. He was found guilty, fined $3,000 and placed on a twelve-month good behaviour bond.

17 The relevant events following the 1999 offences are also as set out in my Reasons for Decision in relation to the matter of Edward Sydney Moyce and are not repeated here. The Applicant has stated that he now deeply regrets the circumstances giving rise to the cancellation of his commercial fishing licence.

18 His evidence is that as a result of those circumstances, he and his father have paid a total in excess of $20,000.00 in legal costs and $6,112.00 in fines and Court costs and forfeited the balance of their lobster catch worth over $2,000.00. As a result of the cancellation of their licences they were unable to fish during December 2001. He valued the foregone catch at in excess of $33,000.00. This valuation is based on the comparable catch for December, 2000.

Submissions
19 Ms Doyle's submission in relation to the Applicant are largely those referred to in my Reasons for Decision in relation to the matter of Edward Sydney Moyce and are not repeated here. I have however taken those submissions into consideration in reaching my decision.

20 Additional submissions were specifically in relation to the Applicant. The Applicant’s licence was renewed on 23 November 2001. Ms Doyle argued that having granted that renewal, it is unfair for the Respondent to subsequently cancel the licence on the basis of criminal convictions of which he had knowledge prior to the renewal.

21 She further submitted that to cancel the Applicant’s licence would effectively mean that he would suffer additional financial loss because he would be unable to dispose of his fishing related assets at any reasonable price.

22 The cancellation of the Applicant's licence will not be productive in preventing loss to the industry as a whole. There is no evidence that the Applicant poses a threat in the broad sense. The good behaviour bond that is current affords protection to fellow fishers.

23 The testimonials before this Tribunal confirm that the Applicant is well regarded by his peers and business associates. He is a longstanding member of the fishing industry and the fact that he is held in high esteem by many of his peers is something that should be taken into account.

24 In relation to the factors relevant to the Applicant’s suitability to remain in the industry, Ms Doyle submitted that there is no evidence of any complaints against the Applicant other than the evidence of the local court convictions. In relation to the Applicant's career record, she observed that he has survived in what is clearly a very hard career. The testimonials from within the community where the Applicant lives and works affirm that he is a person of good reputation and that he is good at his work. His own evidence indicates that he is proud of his efforts as a fisherman. The likelihood that the Applicant will reoffend is remote. He has learnt a very salutary lesson from what has taken place.

25 Mr Francey’s submission in relation to the Applicant are largely those referred to in my Reasons for Decision in relation to the matter of Edward Sydney Moyce and are not repeated here. I have however taken those submissions into consideration in reaching my decision.

26 Mr Francey questioned the credibility of the claim that this is the one and only time that the Applicant had engaged in the kind of activity for which he was convicted. He referred to the Applicant’s admission that he gave false evidence in the Local Court proceedings and submitted that the Applicant would have had a clear recollection of the events if he had engaged in this kind of activity on only one occasion. However, the Applicant's recollection of dates was not clear. Mr Francey urged the Tribunal to draw the inference that, if the operation of microchipping had been done on more than one occasion over a period of time, there may have been a greater quantity of evidence against the Applicant.

27 Mr Francey submitted that the Applicant deliberately decided to take fish, knowing that he wasn't entitled to do it. That is evidence of a mindset that shows a disregard for the law. Further, when charged he gave sworn evidence denying involvement in the offences, when he knew that he had been involved in the offences. That again is evidence of a mindset that he would continue to take the law into his own hands in order to avoid potential adverse financial consequences.

28 In Mr Francey submission, the Applicant engaged in deliberate, premeditated conduct, irrespective of the fact that he says that it was motivated by something other than stealing for commercial gain. The Tribunal should have regard to the Applicant’s preparedness to not tell the truth under oath in order to avoid the consequences of cancellation.

29 There is a regulatory regime and a management structure in place directed at preventing this kind of behaviour. The exercise of the power that exists under the legislation is separate to the sanctions that exist under the general law. New technology has enabled the detection of the Applicant’s wrongful conduct, and appropriate consequences should flow.

Findings
30 I have given consideration to all the facts in this application and, in particular, the following: the nature of the Applicant's offences, the circumstances in which those offences came to light, the time which has elapsed since the commission of the offences, the cancellation of the Applicant's licence and the period during which the Applicant was unable to operate under the licence, the Applicant’s other offences and convictions, the quantum of penalty imposed in relation to the maximum available, the Applicant's financial position and family responsibilities, testimonials presented on behalf of the Applicant, the need for management of the lobster fishery and the measures being taken to achieve that, and the public interest in limiting criminal activity within the industry.

31 I accept the submissions made on behalf of the Applicant in relation to complaints against him, his reputation in the community and the likelihood that he will reoffend. I accept that given the industry in which the Applicant operates, and the time that he has spent in that industry, his record has been relatively unspoiled prior to his most recent convictions. In my view, it is most probable that the Applicant is highly regarded among those persons in the industry with whom he has been associated. It is also most probable that he is very skilled at his chosen field of work. In the circumstances, I accept that the Applicant has learned an important lesson from his recent experiences and that he is unlikely to reoffend in the manner referred to in this matter.

32 Notwithstanding that view, I do not accept that those factors lessen the seriousness of the offences for which the Applicant has been convicted. While I note the evidence that the Applicant's conduct was a response to general frustration he experienced as a result of a more widespread problem in the industry, I have great difficulty in accepting that the Applicant was caught engaging in an unlawful activity on the one and only time that he engaged in that activity. In my view, it is more likely that if the operation of microchipping had been done on more than one occasion over a period of time, there may have been a greater quantity of evidence.

33 The offences committed by the Applicant and for which he has been convicted are most serious. I accept that this view is also shared by the commercial fishing industry. I agree with Mr Francey’s submissions that the Applicant’s conduct is evidence of a mindset that shows a disregard for the law. It is of no consequence that similar attitudes exist amongst others who operate within the industry.

34 For the same reasons that I have set out in my Reasons for Decision in relation to the matter of Edward Sydney Moyce I am of the view that the public interest requires that the regulatory regime and management structure which exist in relation to the industry are effectively applied in circumstances where somebody has been convicted of these offences. The failure to utilise the powers open to the Minister in these circumstances would defeat the legislative purpose behind the grant of those powers.

Conclusion
35 Having considered all these factors, I have formed the view that the decision made by the Minister is the correct and preferable decision. Accordingly the decision of the Minister to cancel the commercial fishing licence and endorsements held by Jason Edward Moyce is affirmed.

Orders
36 The decision of the Minister to cancel the commercial fishing licence and endorsements held by Jason Edward Moyce is affirmed.