Murfet v Visser

[2000] TASSC 35

[2000] TASSC 35

CITATION:              Murfet v Visser [2000] TASSC 35

PARTIES:  MURFET, Ricardo Thomas
  v
  VISSER, Claas

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 33/1998
DELIVERED ON:  7 April 2000
DELIVERED AT:  Burnie
HEARING DATES:  7 April 2000
JUDGMENT OF:  Evans J
CATCHWORDS:

Primary Industry - Fish - Offences - Other cases - Special penalty for offence of possessing abalone  - Calculation by weight or number of abalone above the prescribed maximum.

Fisheries Rules (1996) (Tas) r29(1)(b).

Living Marine Resources Management Act 1995 (Tas), ss4, 267, 269.

Fisheries (Value of Fish) Order (1996), r4.

Blake v Richardson [2000] TASSC 15, followed.

Aust Dig Primary Industry [35]

REPRESENTATION:

Counsel:
           Applicant:  S J N Brown
           Respondent:  F C Neasey
Solicitors:
           Applicant:  Clarke & Gee
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2000] TASSC 35
Number of Paragraphs:  9

Serial No 35/2000
File No LCA 33/1998

RICARDO THOMAS MURFET
v
CLAAS VISSER

REASONS FOR JUDGMENT  EVANS J
(DELIVERED ORALLY)  7 April 2000

1. The applicant seeks a review of a special penalty of $80,730 imposed on him upon his plea of guilty to a charge that in breach of the Fisheries Rules 1996, r29(1)(b), on 24 July 1996, at Eddystone Point in Tasmania, he was in possession of more than 20 abalone of the genus Haliotis, namely 631 abalone, and he did not have a receipt relating to the purchase of the said abalone from a fish merchant.  Rule 29(1)(b)provides:

"(1)     A person must not:

(a)      ….

(b)      have possession of more than 20 abalone unless the person -

(i)has the third copy of a diver's docket which relates to the abalone; or

(ii)has a receipt relating to the purchase of the abalone from a fish merchant; or

(iii)is the holder of a fishing licence (abalone dive) who has taken the abalone under that licence and the abalone have not been landed."

1. At the time of the offence, the Living Marine Resources Management Act 1995 ("the Act") s267 provided that:

   "(1)     In addition to imposing a penalty on a person for an offence under this Act or regulations or rules made under this Act relating to the taking or possession of fish a court must impose a special penalty equal to 10 times the value of the fish.

   (2)A court must not reduce a special penalty for any reason."

2. The Act, s267, applied to the applicant's conviction as the Fisheries Rules 1996 were made pursuant to the Act and the offence expressly related to the possession of fish. The definition of "fish" includes abalone. Whilst the abalone which were the subject of the charge had been shucked, the definition of "abalone" encompasses dismembered abalone, (the Act, s4(2)(h) and (3)(c)). Pursuant to the Act, s267(1), the learned magistrate was obliged to impose a special penalty equal to 10 times the value of the fish. As to the value of the fish, the Act, s269, provides:

   "(1) For the purpose of this Division, a court must determine the value of any fish -

   (a)      by multiplying the weight of the fish by the value of each unit of weight declared for fish of that class or species; or

   (b)      by multiplying the number of fish by the value of each fish declared for fish of that class or species.

(2)      The Minister, by order, may declare ¾

(a)      the value of each unit of weight for fish of a specified class or species; or

(b)      the value of each fish of a specified class or species."

1. By the Fisheries (Value of Fish) Order 1996, r4, the relevant values specified for abalone at the time of the offence for the purposes of the Act, s269, were:

·   value each kilogram           $75

·   value each fish                 $13

1. The learned magistrate was informed that a total of 641 shucked abalone were seized from the applicant.  He was also informed that at the time of the offence the applicant was the holder of a recreational diver's licence and that for this reason the prosecutor agreed to reduce the number of abalone which were the subject of the charge to 631.  The charge was amended accordingly.

1. In the course of the hearing the prosecutor informed the learned magistrate that it was accepted that the special penalty should be imposed in respect of 621, not 631 abalone.  Counsel for the applicant made no submission to the contrary.  In result, the learned magistrate imposed a special penalty calculated in relation to 621 abalone.  The applicant pleaded guilty to having in his possession more than 20 abalone, namely, 631 abalone.  His offence related to the number of abalone he had in his possession in excess of the 20 abalone which r29(1)(b) recognised he could possess without being in breach of that rule, that is, 611 abalone.  Accordingly, the learned magistrate should have imposed a special penalty in relation to 611 abalone.  In Blake v Richardson [2000] TASSC 15, Cox CJ held that the special penalty imposed by the Act, s267, applied to the number of fish - in that case, rock lobster - in excess of the number the accused was allowed to possess pursuant to the Fisheries (Rock Lobster) Rules 1997, r13(2). That rule makes it an offence to be in possession of more than five rock lobster without a receipt verifying their purchase. That rule mirrors Fisheries Rules 1996, r29(1)(b).  See also Lloyd v Snooks (1999) TASSC 117.

1. Counsel for the applicant submits that the learned magistrate erred because he should have calculated the special penalty on the basis of the weight of the abalone, rather than the number of abalone. He says that as the Act, s269, and the Fisheries (Value of Fish) Order 1996 allowed the value to be determined by reference to either the weight or the number of the abalone, the learned magistrate should have determined the special penalty in this instance on the basis of the weight.  He says the weight of the abalone seized from the applicant was 73 kilograms.  As the value of abalone by weight was $75 per kilogram, he says the penalty should have been calculated as follows:  73 x 10 x 75 = $54,750.

1. Counsel for the applicant submits that where, as here, there are two means by which a penalty may be calculated, the means most favourable to an accused should be adopted.  Some support for this line of argument may be gleaned from Byrne v McLeod (1934) 52 CLR 1 at 8, and Walden v Hensler (1987) 163 CLR 561 at 587. See also Pearce and Geddes, Statutory Interpretation in Australia, 4^th ed, par6.28.  Counsel for the respondent submits that this argument has no force in relation to the construction of the provisions under consideration as it is manifest that Parliament intended that the special penalty should only be imposed by reference to the weight of the fish if it could not be determined by the reference to the number of fish.  It does not fall to me to resolve this debate, as in the circumstances of this case, the learned magistrate could not have calculated the special penalty on the basis of the weight of the abalone.  The special penalty was to be imposed in relation to the number of abalone the applicant pleaded guilty to having in his possession in excess of 20. There is no way of identifying the 20 abalone to be excluded from the total number of abalone seized so as to enable the weight of the balance of the abalone which attracts the special penalty to be calculated. The evidence was that the weight of the 641 abalone seized from the applicant was 73 kilograms.  There was no way of determining which of the 641 seized abalone were the 631 abalone to which the charge related or which of them were the 611 abalone which attracted the special penalty.  As it was not possible to establish the weight of the abalone, the only course open to the learned magistrate was to impose a penalty based on the number of abalone.  I calculate the penalty as follows: 611 x 10 x 13 = $79,430.

1. Insofar as the learned magistrate calculated the special penalty on the basis of the wrong number of abalone, 621 not 611, his calculation was in error.  To that extent the appeal is allowed and the special penalty is reduced to $79,430.