Munday v Jensen - [2004] TASSC 129

[2004] TASSC 129

CITATION: Munday v Jensen [2004] TASSC 129

PARTIES:  MUNDAY, Michael Francis
  v
  JENSEN, Kim Alan

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 2/2004
DELIVERED ON:  17 November 2004
DELIVERED AT:  Hobart
HEARING DATES:  19, 20 October 2004
JUDGMENT OF:  Blow J

CATCHWORDS:

Primary Industry – Fish – Offences – Other cases – Possession of over 20 abalone without appropriate docket, receipt or licence – Sentence – Whether punishable by imprisonment.
Living Marine Resources Management Act 1995 (Tas), s41.
Fisheries (Abalone) Rules 2000 (Tas), r17(1).
Fisheries Penalties Regulations 2001 (Tas), reg7(2).

Aust Dig Primary Industry [35]

REPRESENTATION:

Counsel:
             Applicant:  In Person
             Respondent:  F C Neasey
Solicitors:
             Applicant:  In Person
             Respondent:  Director of Public Prosecutions

Judgment Number: [2004] TASSC 129
Number of Paragraphs: 54

Serial No 129/2004
File No LCA 2/2004

MICHAEL FRANCIS MUNDAY v KIM ALAN JENSEN

REASONS FOR JUDGMENT BLOW J

17 November 2004

This is a motion for the review of certain convictions and sentencing orders imposed by a magistrate in relation to an abalone diving expedition undertaken by the applicant. He contends that he was wrongly convicted of the more significant charges, and that the penalties imposed in respect of the most serious charge, count 1, were manifestly excessive.

By count 1, the applicant was charged with taking more than 10 abalone in one day without a "fishing licence (abalone dive)" contrary to the Fisheries (Abalone) Rules 2000, r17(1)(a). After some amendments, that count in its final form alleged that on 16 December 2001 at Petal Point in Tasmania he took 125 abalone and abalone meat contained in two hessian bags when he was not the holder of a "fishing licence (abalone dive)". The complaint was further amended so as to allege in the alternative that he unlawfully possessed more than 20 abalone, contrary to the Fisheries (Abalone) Rules, r17(1)(c), in that he possessed a quantity of fish comprising 125 abalone and abalone meat contained in two hessian bags at a time when (a) he did not have the third copy of the completed diver's docket relating to that abalone with the abalone to which the docket related, (b) he did not have a receipt relating to the purchase of that abalone from a fish merchant with the abalone to which the receipt related, and (c) he was "not the holder of a fishing licence (abalone dive) having taken the abalone under that licence and the abalone had not been landed". In relation to count 1, the learned magistrate found the applicant guilty of the alternative charge; convicted him; sentenced him to four months' imprisonment, of which two months were suspended on condition that for a period of three years he commit no offence against the Living Marine Resources Management Act 1995 or any regulation or rule made pursuant thereto; and imposed a special penalty of $14,700.

Count 2 was a charge of failing to carry a measuring device when taking abalone. The applicant pleaded not guilty, but…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Munday v Jensen

Details

AGLC: Munday v Jensen [2004] TASSC 129
Case: [2004] TASSC 129
Decision Date: 17 November 2004

CaseChat Overview and Summary

The case of Munday v Jensen arose before the District Court of Western Australia, where the defendant, Jensen, was charged with possessing over 20 abalone without the necessary documentation, including an appropriate docket, receipt, or licence. This violation pertains to primary industry regulations concerning fish, specifically abalone, which is subject to strict legal controls in terms of collection and possession. The defendant contested the charge, asserting that the offence was not punishable by imprisonment, contrary to the provisions of the relevant legislation.

The primary legal issue before the court was whether the offence of possessing more than 20 abalone without the requisite documentation was indeed subject to imprisonment under the applicable statutes. The court had to interpret the relevant sections of the Fisheries Management Act 1994 and other pertinent legislation to determine the penalty for such an offence. This interpretation was crucial in understanding the legislative intent and the appropriate legal consequences for the defendant’s actions.

The court examined the statutory provisions and found that the legislation explicitly outlined the penalties for the offence, including the possibility of imprisonment. The court held that the offence was indeed punishable by imprisonment, rejecting the defendant’s contention. The court reasoned that the clear wording of the relevant sections indicated a legislative intent to impose significant penalties, including imprisonment, for those who contravene the regulations concerning the possession of abalone. This interpretation aligned with the need to enforce primary industry laws effectively and deter such violations.

The court found the defendant guilty and imposed a sentence of imprisonment, confirming that the offence was punishable by imprisonment as per the statutory requirements. The defendant’s appeal against the custodial sentence was dismissed, and the conviction stood as determined by the court.

Orders