Olivier v Walker - [2021] QDC 150

DISTRICT COURT OF QUEENSLAND

CITATION:

Olivier v Walker [2021] QDC 150

PARTIES:

JACQUE OLIVIER

(appellant)

v

COBY SCOTT WALKER

(respondent)

FILE NO:

D9/2021

DIVISION:

Appellate

PROCEEDING:

Appeal against sentence

ORIGINATING COURT:

Magistrates Court
Maroochydore

DELIVERED ON:

29 July 2021

DELIVERED AT:

Maroochydore

HEARING DATE:

5 May 2021

JUDGE:

Cash QC DCJ

ORDER:

The appeal is dismissed.

LEGISLATION:

Evidence Act 1977 (Qld), s 132C
Fisheries Act 1994 (Qld), s 78, s 82, s 83, s 177
Justices Act 1886 (Qld), s 222, s 223
Penalties and Sentences Act 1992 (Qld), s 15, s 48

CASES:

Teelow v Commissioner of Police [2009] 2 Qd R 489
R v Hart [2008] QCA 199
Schoombee, Re: Ex Parte Attorney General (WA) (2011) 58 MVR 15

APPEARANCES:

Appellant in person
J Cranitch (Government Legal Officer) for the respondent instructed by Department of Resources (Queensland)

Introduction

On 17 December 2020 the appellant appeared before a Magistrate at Maroochydore. He pled guilty to a total of 20 offences contrary to either section 78 or section 82 of the Fisheries Act 1994 (Qld). All of the offences related to either the unlawful possession or sale of fish. After hearing submissions, the Magistrate made the following orders:
a)       In relation to each offence a single fine of $5000 was imposed;[1]
b)      The appellant’s boat, motor and trailer (which I will for convenience collectively call ‘the boat’), valued at $15,000, were forfeited to the state of Queensland;[2]
c)       Notebooks, paper and fish were also forfeited;
d)      The appellant was ordered to pay $207.20 as court costs and $500 as the prosecution’s professional costs.
[1]As permitted by section 49 of the Penalties and Sentences Act 1992 (Qld). The intention of the Magistrate was for particulars of the fine to be provided to the State Penalties Enforcement Registry for the purpose of any subsequent enforcement of the order.
[2]Pursuant to section 177 of the Fisheries Act 1994 (Qld).
The appellant feels aggrieved as a result of the orders made by the Magistrate. He appeals against those orders, alleging two grounds: first that the sentence was excessive and, secondly, the Magistrate erred because the statutory requirements for the forfeiture the boat were not made out.[3] For the following reasons I am of the view that the appeal must be dismissed. Before turning to the conduct of the appellant that gave rise to the prosecution it is convenient to set out the legal principles relevant to an appeal of this kind.
[3]The second ground was added by leave at the hearing without opposition by the respondent.
Relevant legal principles
The appeal is brought pursuant to section 222 of the Justices Act 1886 (Qld). Section 222(2)(c) provides that if a person pleads guilty in the proceedings before the Magistrate, they may only appeal on the ground that the ‘fine, penalty, forfeiture or punishment was excessive’. Pursuant to section 223 of the Justices Act, the appeal is by way of rehearing on the evidence given in the proceedings before the Magistrate (and any further evidence…

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 Olivier v Walker

Details

AGLC: Olivier v Walker [2021] QDC 150
Case: [2021] QDC 150
Decision Date: 29 July 2021

CaseChat Overview and Summary

In the matter of Olivier v Walker, the appellant, Olivier, challenged the decision of the Magistrate to forfeit a boat used in the commission of certain offences. The boat was forfeited as part of the sentence for the crimes Olivier committed, which included illegal fishing activities. The primary issue before the court was whether the Magistrate had the authority to forfeit the boat based on the evidence provided and if the decision to do so was justified.

The court considered whether the Magistrate erred in concluding that Olivier had used the boat to assist in or facilitate the commission of the offences. Given that Olivier did not contest the claims that the boat was used in some of the offences, the court found it reasonable for the Magistrate to accept this fact and base the forfeiture decision on it. Furthermore, the court noted that Olivier admitted during the appeal hearing to using the boat for catching fish that he later sold, reinforcing the Magistrate's decision.

The court concluded that Olivier had not successfully demonstrated any error in the Magistrate's decision to forfeit the boat, nor had he shown that the outcome was unreasonable or plainly unjust. As a result, the appeal was dismissed. The court made no order regarding the costs of the appeal, as the respondent did not request any costs against the appellant.

ORDERS:
The appeal is dismissed.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Given the appellant did not challenge the assertions that the boat had been used in the commission of some of the offences, it was open to the Magistrate to accept and act upon them.[15] This was sufficient to permit the Magistrate to conclude that the appellant had used the boat to assist in or facilitate the commission of (at least some of) the offences. It is not said that the Magistrate otherwise erred in deciding to forfeit the boat, or that the result is one that is unreasonable or plainly unjust (beyond the complaint dealt with above that the sentence as a whole was excessive). This ground of appeal must also fail.[15]I note as well that at the hearing of the appeal the appellant accepted that he used the boat to catch the fish that he sold – transcript of appeal hearing, 5 May 2021, T.1-29.1-5.Conclusion The appellant has not made out either ground of appeal. It follows that the appeal must be dismissed. The respondent has not asked for costs and there will be no order as to the costs of the appeal.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Olivier v Walker [2021] QDC 150
PARTIES:	JACQUE OLIVIER (appellant)
v
COBY SCOTT WALKER (respondent)
FILE NO:	D9/2021
DIVISION:	Appellate
PROCEEDING:	Appeal against sentence
ORIGINATING COURT:	Magistrates Court Maroochydore
DELIVERED ON:	29 July 2021
DELIVERED AT:	Maroochydore
HEARING DATE:	5 May 2021
JUDGE:	Cash QC DCJ
ORDER:	The appeal is dismissed.
LEGISLATION:	Evidence Act 1977 (Qld), s 132C Fisheries Act 1994 (Qld), s 78, s 82, s 83, s 177 Justices Act 1886 (Qld), s 222, s 223 Penalties and Sentences Act 1992 (Qld), s 15, s 48
CASES:	Teelow v Commissioner of Police [2009] 2 Qd R 489 R v Hart [2008] QCA 199 Schoombee, Re: Ex Parte Attorney General (WA) (2011) 58 MVR 15
APPEARANCES:	Appellant in person J Cranitch (Government Legal Officer) for the respondent instructed by Department of Resources (Queensland)