Recreational fishing licence - Commercial fishing licence - Conviction for offence under s 172 of the Fish Resources Management Act 1994 - Review of decision pursuant to s 149(1) of the Fish Resources Management Act 1994 for suspension of licences - Suspension period varied

Legislation:

Fish Resources Management Act 1994 (WA), s 3(2), s 53(a), s 54(1), s 135, s 136, s 143(1)(a)(i), s 149, s 149(1), s 150, s 172, s 172(b), s 223, s 224, s 224(1), s 256, s 257
Fish Resources Management Regulations 1995 (WA), reg 121, reg 122, reg 123, reg 124

Result:

Decision of the Chief Executive Officer of the Department of Fisheries varied
Applicant's commercial fishing licence suspended for a period of eight months

Summary of Tribunal's decision:

The applicant, who held a commercial fishing licence and a recreational fishing licence, applied to the Tribunal for review of the decision of the Chief Executive Officer of the Department of Fisheries to suspend the applicant's licences for a period of 12 months following his conviction under s 172 of the Fish Resources Management Act 1994 (WA).
The Tribunal considered the circumstances surrounding Mr Pentreath's conviction for unlawfully interfering with four lobster pots.
The Tribunal did not accept Mr Pentreath's evidence as to how he came to be in possession of the pots belonging to four skippers of four other boats. The Tribunal found that the circumstances in which the pots came into Mr Pentreath's possession were as set out in the statement of facts in the Magistrates Court, where Mr Pentreath had pleaded guilty to the offence. The Tribunal determined that the circumstances of the offence showed dishonesty on Mr Pentreath's part in that he was using pots that he knew he did not own and that he was not authorised to use.
In view of all of the evidence before it, the Tribunal concluded that Mr Pentreath's conduct was a serious offence which created distrust amongst fisherman and was detrimental to the social harmony of the industry. Therefore, Mr Pentreath's conduct required a period of suspension in order to deter others from engaging in similar conduct.
The Tribunal determined that a suspension period of eight months would be appropriate for Mr Pentreath's commercial licence. Given that Mr Pentreath's conduct was not in relation to the use of his recreational licence, no period of suspension was imposed.

Category: B

Representation:

Counsel:

Applicant: Mr G Cridland
Respondent: Mr A Shuy

Solicitors:

Applicant: Irdi Legal
Respondent: State Solicitor's Office

Case(s) referred to in decision(s):

Blechynden v Bogumil [2011] WASC 4
Briginshaw v Briginshaw (1938) 60 CLR 336
Commissioner for Consumer Protection and Centex Australasia Pty Ltd [2015] WASAT 129 (S)
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Herron v McGregor (1986) 6 NSWLR 246
Legal Profession Complaints Committee and Giudice [2015] WASAT 10 (S)
Legal Profession Complaints Committee and Love [2011] WASAT 13
Legal Profession Complaints Committee and Wells [2014] WASAT 112 (S)
Medical Board of Australia and Veettill [2015] WASAT 124 (S)
Minister for Immigration & Ethnic Affairs v Daniele 39 ALR 649
Rayney and Legal Practice Board of Western Australia [2016] WASAT 7
Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996)

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Mr Pentreath is an experienced fisherman who has worked as a commercial rock lobster fisherman for a period of approximately 30 years in Western Australia and qualified as a Master 10 years ago. He had commercially fished in the Lancelin area since he was 14 years old.
He holds a commercial fishing licence and a recreational fishing licence under the Fish Resources Management Act 1994 (WA) (the FRM Act).
Mr Pentreath has been Master of the 'Production Line' for the past four seasons.
On 7 August 2015, Mr Pentreath pleaded guilty in the Magistrates Court to an offence under s 172(b) of the FRM Act.
On 12 November 2015, the Chief Executive Officer (the CEO) of the Department of Fisheries (the Department) suspended Mr Pentreath's licences for a period of 12 months.
On 10 December 2015, Mr Pentreath filed an application with this Tribunal to review the CEO's decision pursuant to s 149(1) of the FRM Act.
The operation of any suspension will not begin until this Tribunal determines the matter.

Onus and standard

In Rayney and Legal Practice Board of Western Australia [2016] WASAT 7 (Rayney) the Tribunal set out the principles relating to the onus and standard of proof:
[35]In Legal Profession Complaints Committee and Wells [2014] WASAT 112 at [8] and [9] the Tribunal stated:
The Committee bears the onus of proof. It is to the civil, not criminal standard but the principles of Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) apply. That is, while needing to be proved only on the balance of probabilities, the nature and seriousness of the allegations are relevant to the question whether the issues are proved to the reasonable satisfaction of the Tribunal and the process by which reasonable satisfaction is attained.
By reason of the nature of the allegations, the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts in determining whether or not the case against the practitioner is made out: Medical Board of Western Australia and Wright [2010] WASAT 48 at [31]; and see Medical Board of Western Australia and Bham [2006] WASAT 190 at [144].
(See also Rejfek v McElroy (1965) 112 CLR 517 (Rejfek))
[36]In Briginshaw v Briginshaw (1938) 60 CLR 336 at 362, Dixon J, as he then was, observed '[i]n such matters ''reasonable satisfaction'' should not be produced by inexact proofs, indefinite testimony or indirect inferences'.
[37]The standard of proof required in a civil case where serious allegations are made was stated in Rejfek where Barwick CJ, Kitto, Taylor, Menzies and Windyer JJ observed at 521 that:
The 'clarity' of the proof required, where so serious a matter as fraud is to be found, is an acknowledgment that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved. …
But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused.
[38]In NOM v Director of Public Prosecutions (2012) 38 VR 618 at [124], the Victorian Court of Appeal stated:
… mere mechanical comparison and probabilities independent of a reasonable satisfaction will not justify a finding of fact. The fact finder must feel an actual persuasion of the occurrence or existence of the fact in issue before it can be found. Where, as in the present case, the standard of proof is to be applied to circumstantial evidence, satisfaction as to a reasonable and definite inference is required.
…
[40]In Braysich v The Queen (2011) 243 CLR 434 (Braysich) at 455, the majority cited the observation of Cockburn CJ in R v Rowton (1865) Le & Ca 520 at 530 [169 ER 1497 at 1502], where he stated:
The fact that a man has an unblemished reputation leads to the presumption that he is incapable of committing the crime for which he is being tried.
[41]Accordingly, an accused may lead evidence of the favourable character he bears as a fact or matter making it unlikely that he committed the crime charged: Braysich at [40].
Such evidence as was led as to Mr Pentreath's character was favourable. The Tribunal starts with the presumption that Mr Pentreath was unlikely to have a dishonest purpose.

The legislative framework

The FRM Act is an Act relating to the management of fish resources, including the development and management of fisheries (long title).
The objects of the FRM Act are:
(a)to develop and manage fisheries and aquaculture in a sustainable way; and
(b)to share and conserve the State's fish and other aquatic resources and their habitats for the benefit of present and future generations.
Section 3(2) of the FRM Act relevantly provides that the objects will be achieved by these means in particular:
(a)conserving fish and protecting their environment;
(b)ensuring that the impact of fishing and aquaculture on aquatic fauna and their habitats is ecologically sustainable and that the use of all aquatic resources is carried out in a sustainable manner;
(c)enabling the management of fishing, aquaculture, tourism that is reliant on fishing, aquatic eco tourism and associated non extractive activities that are reliant on fish and the aquatic environment;
…
Regulation 121 of the Fish Resources Management Regulations 1995 (WA) (the FRM Regulations) provides that a person who engages in commercial fishing must hold a commercial fishing licence.
Regulations 123 and 124 of the FRM Regulations provide when a recreational fishing licence is required.
The power to grant authorisations, including licences, is vested in the CEO. Applications are required to be made to the CEO under and in accordance with s 135 of the FRM Act. Section 136 of the Act declares that a person is not entitled to the grant of an authorisation as of right.
An authorisation includes a managed fishery licence (s 53(a) of the FRM Act). The Minister may determine a management plan for a fishery (s 54(1) of the FRM Act). The managed fishery licence determines the quota of fish that may be taken. The offences occurred in the area the subject of the West Coast Rock Lobster Managed Fishery Management Plan 2012.
The FRM Act does not specify any criteria to be applied by the CEO in determining whether or not to grant authorisations. However, reg 122 of the FRM Regulations specifies that the CEO may grant a commercial fishing licence if satisfied that it 'is in the better interests of the fishing industry' to do so.
An authorisation can be cancelled or suspended or refused to be renewed in different circumstances under the FRM Act.
Section 143(1)(a)(i) of the FRM Act provides:
The CEO may, by notice in writing given to the holder of an authorisation, cancel, suspend for any period, or refuse to renew the authorisation
(a)if the holder has been convicted of an offence against
(i)this Act[.]
Section 172 of the FRM Act provides:
Removing fish from etc. fishing gear etc. without authority, offence
A person must not
(a)remove fish from any fishing or aquaculture gear; or
(b)interfere with any fishing or aquaculture gear,
unless the person is the owner of the gear or is acting with the authority of the owner or has some other lawful excuse.
Penalty: In the case of an individual, $25 000 and imprisonment for 12 months[.]
Section 223 of the FRM Act provides that a court which convicts the holder of an authorisation of an offence may, in addition to any other penalty imposed, cancel or suspend the authorisation for any period.
Section 224 of the FRM Act provides for an automatic suspension if three offences are committed in a 10 year period:
(1)If
(a)the holder of an authorisation, or a person acting for or on behalf of the holder, is convicted of a prescribed offence against this Act; and
(b)in the CEO's opinion the offence relates to an activity being carried out, or purporting to be carried out, under the authorisation,
the CEO must, as soon as practicable, notify the Registrar of that fact and the Registrar must record the conviction on the register in respect of the authorisation.
(2)If the Registrar records 3 or more convictions in respect of an authorisation in any 10 year period the Registrar must notify the CEO of that fact and the CEO must, by notice in writing given to the holder of the authorisation, suspend the authorisation for one year.
(3)For the purposes of this section
(a)it is irrelevant that, at the time the authorisation is suspended under subsection (2), the authorisation is held by a person other than the person who has been convicted of all or any of the offences;
(b)if 2 or more offences arose out of one set of facts those offences are to be regarded as one offence;
(c)a conviction may be recorded in respect of more than one authorisation.
(4)…

The relevant licences

Mr Pentreath is the holder of Commercial Fishing Licence No 9695 (Exhibit A pages 474477) and Recreational Fishing Licence No 1368331 (Exhibit A pages 479480). The Commercial Fishing Licence authorised Mr Pentreath to engage in commercial fishing. The Recreational Fishing Licence authorised Mr Pentreath to engage in recreational fishing for rock lobster and to fish by the use of a boat.

Mr Pentreath's business arrangements

Managed Fishery Licence No 1627 authorised Timberlane Nominees Pty Ltd, or persons acting on its behalf, to fish for rock lobster in the West Coast Rock Lobster Managed Fishery (clause 25 and clause 64 of the West Coast Rock Lobster Managed Fishery Management Plan 2012). Timberlane Nominees Pty Ltd was the owner of the licensed fishing boat, 'Production Line'.
Mr Pentreath was a director of Ocean Span Pty Ltd. Mr Pentreath and Ocean Span Pty Ltd were parties to a skipper's agreement with Gen Two Pty Ltd. Gen Two Pty Ltd was a company affiliated with Timberlane Nominees Pty Ltd. Timberlane Nominees Pty Ltd was the holder of Managed Fishery Licence No 1627. Timberlane Nominees Pty Ltd was controlled by the Thompson family.
The skipper's agreement between Mr Pentreath/Ocean Span Pty Ltd and Gen Two Pty Ltd established a business arrangement for the purposes of fishing for rock lobster under which:
a)Ocean Span Pty Ltd exercised the rights and privileges conferred on Timberlane Nominees Pty Ltd by Managed Fishery Licence No 1627; and
b)Mr Pentreath guarantees the performance of Ocean Span Pty Ltd's obligations.
Under and in accordance with the skipper's agreement in force from time to time, Mr Pentreath was the master of Production Line, and by his company Ocean Span Pty Ltd, he engaged a crew to operate Production Line. The effect of this is that Mr Pentreath held an authorisation from Gen Two Pty Ltd/Timberlane Nominees Pty Ltd for the purposes of s 224(1) of the FRM Act.

A note about ownership

In the course of his evidence, Mr Pentreath referred to the pots as 'his'. In fact, it is clear that most of the pots used by Mr Pentreath belonged to Timberlane Nominees Pty Ltd or the Thompsons. Some others had been purchased or made by Mr Pentreath. Neither party challenged Mr Pentreath's reference to ownership and the Tribunal has proceeded on the basis that when Mr Pentreath used the term 'his', or a similar expression referring to ownership, he was using it in the sense of 'an authorised to use', rather than in a strict legal sense. Nothing turns on it.

Mr Pentreath's conviction

On 7 August 2015, Mr Pentreath pleaded guilty to a charge that:
Between the 10^th June, 2013 and the 15^th June, 2013, in waters west of Lancelin Daniel Christian Pentreath, without lawful excuse, interfered with fishing gear, when he was neither the owner of that gear, nor acting with the authority of the owner of that gear; contrary to section 172(b) of the Fish Management Act 1994.
The particulars of the charge were:
Fishing gear: Rock lobster pot belonging to Licenced Fishing Boat F296, named the 'Moby Dick II', marked and photographed with Kangaroo tag 6588 by the Department of Fisheries as part of a gear inspection carried out on 11, 13 and 14 June 2013.
Rock lobster pot belonging to Licenced Fishing Boat F530, named the 'Sao Pedro M', marked and photographed with Kangaroo tag 6587 by the Department of Fisheries as part of a gear inspection carried out on 11, 13 and 14 June 2013.
Rock lobster pot, and the ropes, strop and bridle attached thereto, belonging to a Licenced Fishing Boat F322, named the 'Marlin', seized by the Department of J Fisheries as part of a gear inspection carried out on 11, 13 and 14 June 2013.
Rock lobster pot belonging to Licenced Fishing Boat F399, named the 'Viking Legend', seized by the Department of Fisheries as part of a gear inspection carried out on 11, 13 and 14 June 2013.
Interfered with: Used and otherwise dealt with the fishing gear as part of the commercial fishing operations of Licenced Fishing Boat F410, named the 'Production Line', without permission.

Penalty after conviction

Mr Pentreath was fined $4,000 and ordered to pay costs of $1,000. A forfeiture order was made in relation to two of the four pots which were the subject of the conviction.
Only two of the four pots the subject of the conviction were seized by the Department. The other two pots were photographed on the boat and were not seized by the Department. It is not known what became of the other two pots.
The CEO did not seek a suspension order before the Magistrate.

Administrative suspension

The CEO discretion to suspend Mr Pentreath's licences was enlivened by his conviction under the FRM Act.
On 12 November 2015, the CEO wrote to Mr Pentreath referring to his conviction under s 172 of the FRM Act and advising of his intention to suspend Mr Pentreath's Commercial Fishing Licence No 9695 and his Recreational Fishing Licence, each for a period of 12 months (Exhibit A page 7).

Automatic suspension if three offences committed in 10 year period

Mr Pentreath did not have any previous convictions for offences committed under the Act. The effect of his conviction is that he had one conviction for the purposes of s 224 of the FRM Act.
There was no evidence that Timberlane Nominees Pty Ltd, as the holder of Managed Fishery Licence No 1627, had any previous convictions under the FRM Act. The effect of Mr Pentreath's conviction is that it had one conviction for the purposes of s 224 of the FRM Act.

Identifying individual pots

A crucial factual issue in the determination of Mr Pentreath's application to the Tribunal was the identification of individual pots.
The four pots the subject of Mr Pentreath's conviction, F322, F399, F296 and F530, were owned by the holders of licences for four separate fishing boats.
The skipper of Marlin (F322) was Mr Benjamin Prideaux.
Marlin was owned by Benjamin Prideaux's father, Peter Prideaux, or the Marlin Discretionary Trust, which was controlled by his father (Exhibit A page 386).
Mr Benjamin Prideaux was asked by Department officers to see if he could identify a pot seized by Department officers. He was able to identify it immediately upon entering the shed where it was stored. He explained that he remembered building that actual pot with Mr Clint Moss because it had extra thick bars and an angled neck. Although Mr Prideaux did not see it at first, a Department officer identified that 'F322' had been welded into the ballast of the seized pot (Exhibit A pages 387-388, T:179; 19.07.16).
The skipper of Viking Legend (F399) was Mr Kjell Stokke. Viking Legend was owned by Mr Kjell Stokke's father, Karl Stokke, and his uncle, Nils Stokke (Exhibit A page 380).
Mr Kjell Stokke was shown the pot seized by Department officers. He was able to identify it (Exhibit A page 382). Mr Stokke explained that 'we all have our our own spin on our individual pots. We all believe that we do it a better way than someone else or whatever it might be or things that work for us' (T:156; 19.07.16). His evidence was that pots are very unique (T:161; 19.07.16).

Although Mr Stokke was crossexamined as to his offender's history and his relationship with the Department's research officers (T:163167; 19.07.16), there was nothing in his cross-examination to even remotely suggest to the Tribunal that he was not an entirely reliable witness.
The skipper of Moby Dick II (F296) was Mr Clinton Deon Moss.
Moby Dick II was owned by CDM Nominees Pty Ltd, a company of which Mr Moss was the sole director (Exhibit A page 398).
Mr Moss was shown photographs of a pot that was photographed by Department officers on Mr Pentreath's boat. He was able to identify the pot from the photograph as one of his pots. In his witness statement he gave very specific details of how he was able to identify it, for example, the 9 inch neck with a batten on the inside that becomes 8 inches (Exhibit A pages 398-399, T:170; 19.07.16).
The skipper of Sao Pedro M (F530) was Mr Michael Da Silva.
Sao Pedro M was owned by MRJ Holdings Pty Ltd, a company of which Mr Da Silva was a director (Exhibit A page 390).
Mr Da Silva was shown photographs of a pot that was photographed by Department officers on Mr Pentreath's boat. He was able to identify the pot from the photograph as one of his pots. In his witness statement he gave very specific details of how he was able to identify it, for example, the use of 38 millimetre fingers rather than the 25 millimetre fingers used by most fisherman (Exhibit A pages 390-391; T:189191; 19.07.16).
It was put to each of Mr Moss and Mr De Silva that the photographs were blurry. Neither Mr Moss nor Mr Da Silva accepted that the quality of the photographs prevented them from identifying their pots.
Each of the four skippers were very good witnesses who gave very direct answers. The Tribunal has no hesitation in accepting their evidence that they were able to identify the pots.
Evidence was led as to the difficulty of identifying a pot after it had been in the water for a long time. However, that evidence was irrelevant as none of the four skippers had any difficulty identifying their pots in the state they were in when seized or photographed by the Department, that is, as pots that were being used for fishing at the time.
Mr Sullivan, a former skipper, gave evidence that lots of people build pots exactly the same way. However, he also conceded that people do build pots differently (T:14-16; 18.07.16). Mr Sullivan was not an impressive witness. He had trouble answering simple questions, for example, T:16; 18.07.16. He seemed at pains to establish that all pots look the same. It is clear from the evidence of each of the four skippers referred to above that there are readily identifiable differences.
Mr Pentreath's deckhand, Mr Jake Michael, also gave evidence. His evidence was that everyone's pots are 'so similar'. However, he also gave evidence that he was able to identify a Max Fielding's pots, which had been purchased for use on Mr Pentreath's boat, because of the different neck on them (T:107-108; 18.07.16). Mr Michael showed an understandable, but misplaced, loyalty to Mr Pentreath. The Tribunal did not find him to be a credible witness.
Mr Pentreath built some of his own pots (Exhibit A Tab 25 DVD about 14h.14'20").
In the course of an interview with Department officers on 14 June 2013, Mr Pentreath accepted that he was responsible for the pots which were pulled on board Production Line (Exhibit A Tab 25 DVD about 13h.58'55").
Further, in the course of Mr Pentreath's plea in mitigation, his counsel stated:
He acknowledges as skipper of the boat, it's his responsibility to know what's happening on his boat and whose pots they are, and he accepts full responsibility for that, but his involvement in collecting the two abandoned pots relates to Marlin and Viking Legend.
In the course of an interview with Department officers on 15 July 2013, Mr Pentreath conceded that:
a)he could see his pots come on board from his position on the wheelhouse at the helm;
b)he could see the front of the pot as it came out of the water; and
c)he nickednamed some of his pots, being the ones that catch.
In the course of the interview Mr Pentreath was asked:
Q37What I'm [trying] to get at Dan is that most fishermen know their pots individually. I realize you have a lot of pots, but I can't understand why you wouldn't recognize a pot that came on board that didn't belong to you. Can you explain why?
A.No.
(Exhibit A page 433, T:38; 18.07.16)
The Tribunal is satisfied that a pot is distinctive and capable of identification by the skipper of a boat using it and that a skipper is capable of identifying a pot that does not belong to his boat. The Tribunal is satisfied that Mr Pentreath was capable of identifying his pots and identifying a pot that did not belong to his boat.

The nature of an inquiry into the circumstances surrounding a conviction in disciplinary proceedings

In inquiring as to the circumstances surrounding the conviction it is important to remember the limitations upon that inquiry. In Minister for Immigration & Ethnic Affairs v Daniele 39 ALR 649 at 653 Fisher and Lochart JJ stated:
The conviction is the genesis of the Minister's power to deport. There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However, such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant's criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial. Whether these circumstances and matters are susceptible of examination, and the extent of that inquiry, will vary from case to case. The matters which the Tribunal is called upon to determine are wider than and different from the questions which a trial judge and jury must determine.
In Rayney, the Tribunal stated:
[79]Where a practitioner has been convicted, the position is as stated in Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474 (Sudath), where Meagher JA, Whealy JA agreeing, held:
[83]It is not uncommon for the jurisdiction of an administrative tribunal to exercise disciplinary or other powers to be founded upon its being satisfied after inquiry as to the fact of a conviction or as to a person not being of good character or being unfit to practise. In the latter cases, if there is a contest as to the occurrence or significance of the conduct relied upon as relevant to the assessment of character or fitness to practise, material which tends to show whether that conduct occurred or places it in context is relevant to the subject matter of the inquiry. This remains so even if the conduct has been the subject of an earlier conviction or adverse finding and the evidence sought to be led contradicts the finding or facts essential for the conviction. The mere fact of inconsistency does not of itself excuse the Tribunal from inquiring into the relevant facts or give rise to an abuse of its process. None of this means that a tribunal cannot or should not give significant weight to earlier convictions or findings of a court when addressing whether conduct has occurred. Nor is it the position that a tribunal is required to receive evidence about such conduct if the purpose for which it is proffered is not to challenge the fact of the conduct but to impugn an earlier conviction or the fairness of an earlier trial.
…
[101]In relation to the second complaint, the respondent relies on conduct which includes the conduct underlying the appellant's two convictions. The inquiry in relation to that complaint could result in the appellant being fined, suspended or deregistered. He has an interest in challenging or explaining the alleged conduct as part of his response to it. If he puts that conduct in issue, the Tribunal's obligation is to inquire and make findings as to whether it occurred. In doing so it must base its decision upon relevant material. Whilst it is not bound by the rules of evidence and may inform itself as it sees fit, it must accord the appellant procedural fairness. In the circumstances, that requires that the appellant be given the opportunity to lead evidence inconsistent with that relied on by the respondent. It does not matter that this material also challenges facts on which the convictions were based, provided that it is not proffered for the purpose of impugning those convictions or the fairness of his trial.
[102]The requirement that the Tribunal allow the appellant to present relevant and probative material in response to the evidence relied upon by the respondent in relation to the second complaint, does not mean that the Tribunal is required to rehear the matters dealt with in the District Court. It is entitled to receive as evidence before it, the certificates of conviction, the trial judge's findings in his remarks on sentence and the evidence before the trial judge. It must consider all of the evidence and material before it and in the process of making findings of fact, it is entitled to give those matters significant weight.

The circumstances surrounding Mr Pentreath's conviction

Following Mr Pentreath's plea of guilty (Exhibit A page 172), the statement of facts was read out by counsel for the CEO to the Magistrate as follows:
Thank you, your Honour. The accused is a commercial rock lobster fisherman. At the date of the offences he was the master of the licensed fishing boat F410 named Production Line which was fished from the Lancelin anchorage in the waters west of Lancelin. The fishing operation being carried on the Production Line involved the use of a maximum of 200 rock lobster pots to catch a maximum of 40,800 kilograms of western rock lobster during the 2011 to 2013 season.
According to the Department of Fisheries' records the Production Line consigned 33,953.9 kilograms of western rock lobster for that season. The Department of Fisheries commenced a compliance operation to target the Production Line after receiving information that the accused had been interfering with and using other fisher's rock lobster pots. On 13 and 14 June 2013 fisheries officers boarded the Production Line to conduct a rock lobster pot inspection of the commercial fishing gear being used.
The fisheries officers inspected the gear identification numbers on the pots being used by the accused. The gear identification number being the licensed boat number in respect of which the pots are used is usually branded onto the pots and surface floats. The commercial rock lobster fishermen are not legally obliged to brand their pots in this way but they do so for identification purposes. The fisheries officers found that the accused was using the four pots the subject of the charges against the accused. The fishing identification numbers on the wooden frames of the pots had been partially scratched out, gouged out or had lines engraved through.
One of the pots retained the fishing gear identification number engraved on the ballast. The fisheries officers were informed by the accused's former deckhand who had worked with the accused between October 2012 and 6 June 2013 that the accused was fishing with stolen pots. He said that the accused thought he owned the ground that they were fishing on. There was a stage where they did not have any extra pots which always needed a lot of work. The accused would rock up with a grin on his face and say lost pot. The accused would command his crew to take and use the fishing gear.
The fisheries officers were able to determine that the pots belonged to four other commercial fishers. The owners of the pots were able to confirm through examination of two of the pots which were seized and photographs taken of the two pots which were not seized that the pots belonged to them. In respect of one of the pots, the accused was using the other commercial fisher's ropes, strops and bridle. The other commercial fishers had not given the accused any authority to take, use or otherwise deal with the pots.
The pots were each initially taken by the accused from the waters west of Lancelin no earlier than 15 November 2012. The accused used the pots as part of a commercial fishing operation on the Production Line during which the fisheries officers carried out the formal check on 13 and 14 June 2013. Penalty for the charge is a maximum fine of $25,000 and one year imprisonment under section 172(b) of the Fish Resources Management Act. The accused has no prior convictions.
(Exhibit A pages 172 and 173)
Each of the pots the subject of the conviction was being used by Mr Pentreath for fishing since they were pulled from the water by the Department in the course of its investigation (Exhibit A pages 353-355; see the CEO's and Mr Pentreath's statement of issues, facts and contentions (SIFC) at paragraph 24).
In Mr Pentreath's first interview by Department officers on 14 June 2013, he was shown the two pots from F322 Marlin (Prideaux) and F399 Viking Legend (Stokke), which were seized by Department officers (Exhibit A Tab 25 DVD).

F322

On 14 June 2013, Mr Pentreath was unable to offer any explanation as to how F322 came into his possession. Again, on 15 July 2013, Mr Pentreath was again unable to offer any explanation as to how the pot came into his possession.
On 15 July 2013, Mr Pentreath was unable to explain why he was using Prideaux's rope and bridle attached to F322 (Exhibit A Tab 38 page 432 Question 29).
Two years later, in the course of Mr Pentreath's plea in mitigation, on 7 August 2015, his counsel stated:
The next pot, which is the Marlin pot [LFB 322], he found in deep water. It had a rope attached, no float, and was not part of anyone's fishing lines. He took that pot and he used it. He acknowledges that in respect of both of those pots. He acknowledges as skipper of the boat, it's his responsibility to know what's happening on his boat and whose pots they are, and he accepts full responsibility for that, but his involvement in collecting the two abandoned pots relates to Marlin and Viking Legend.
In these proceedings, Mr Pentreath's SIFC, 13(m), stated that F296 was:
[A] rock lobster pot relating to Licenced Fishing Boat F296, named the 'Moby Dick II' (F296) and alleged to be owned by someone other than the Applicant was pulled in circumstances where the Applicant had an honest belief it was one of his second hand pots and was subsequently inadvertently mixed up with the large number of pots on board the Applicant's vessel although the Applicant intended to return it to its owner via the jetty[.]
In fact, the SIFC must have intended to refer to the F322 Marlin (Prideaux).
In Mr Pentreath's witness statement in these proceedings (Exhibit B), at paragraphs 104 to 110, he stated:
In or about March/April 2013 we were fishing in deep water (approximately 38 fathoms) Northwest of Lancelin.
At the time of pulling one of our pots, a rope was caught around another pot [F322 Marlin Prideaux] which floated to the surface.
We pulled the pot attached to the rope as well as ours.
At the time we didn't check to see whose pot it was. It was in fairly reasonable condition.
The intention was to return the pot to the wharf as is my usual practice, unless I know the owner of the pot in which case I return the pot directly to the owner.
The pot simply got mixed up in the stock of pots stacked on board during that fishing trip and I simply forgot to return it as is my usual practice.
I had absolutely no intention to steal this pot.
Before this Tribunal, as compared to his appearance before the Magistrate, Mr Pentreath had an additional explanation, namely, that he retained it by mistake. In the course of his plea in mitigation before the Magistrate there was no suggestion that F322 had been kept by mistake.
If in fact Mr Pentreath had mixed up that pot with his pots and did intend to return the pot, then it is a fact which would have been relevant to his plea in mitigation before the Magistrate. The fact that Mr Pentreath did not offer that explanation before the Magistrate leads this Tribunal to conclude that Mr Pentreath's evidence of a mistake should be rejected.

F399

When asked during the course of the interview to explain why he had F399, Mr Pentreath first said 'it could have come from anywhere' (Exhibit A Tab 25 14.14'.29"). Later, in the same interview, he indicated that it came from the Thompsons because the F399 had been crossed through using a grinder which must have happened in his shed (Exhibit A Tab 25 14h14'35"). In the course of his interview on 14 June 2013, he agreed he could see the numerals 99, on the pot despite the number having been crossed out (Exhibit A Tab 25 14h.29'14").
In Mr Pentreath's examination in chief, he stated that he rang Mr Kjell Stokke on 15 June 2013 and said that he had found F399 in a wrecked state while diving at the beach and taken it home and refurbished it (T:27; 18.07.16). Mr Pentreath did not offer that explanation to the Department at his interview the day beforehand. In the course of crossexamination, he said that he went home, sat down by himself and knew that he had found the pot diving (T:50; 18.07.16).
In an interview by the Department with Mr Pentreath on 15 July 2013 (Exhibit A page 432), Mr Pentreath's explanation for his possession of F399 was that it was found at 'the beach' in a shallow area of water off the beach, at least two years ago. He stated that it had obviously been snagged and it had been there for at least four to five years.
Mr Pentreath claimed that he did not return the pot to its owner because he did not know who the owner was as it was covered in barnacles and seaweed. It is difficult to reconcile this explanation with the fact that he was able to identify the registration number F399 on the pot, taken from his boat, on 14 June 2013 and to telephone Mr Stokke the next day. In the course of his interview he had stated that 'I don't know every pot. I don't go home and study every pot I got and what battens it's got on it' (Exhibit A page 433, Question 32).
Clearly, Mr Pentreath now had a very clear recollection of pot F399 despite it being one of hundreds.
In the course of Mr Pentreath's plea in mitigation his counsel stated:
… in respect of the pot which was alleged to relate to Viking Legend [LFB 399], that he, Mr Pentreath, had lost a pot - it was snagged - he had marked it, came back later to it, and set one of his deckhands down using scuba gear to locate his snagged pot. Next to the snagged pot, there was a carcass of an old pot, and it was only a carcass, the rest of the pot having rotted off. His deckhand brought his pot and the carcass back up. It was not useable. He did replace the batons on it, and he used it. So that's the Viking Legend pot which had been, to all effects and purposes, lost to the sea.
Two years later, Mr Pentreath's SIFC at paragraph 13(l) stated that F399 was:
i.a carcass of a pot;
ii.was not fit for use;
iii.was lost to the sea and had clearly been there for more than a year;
iv.was of no value; and
v.had been abandoned when found.
In Mr Pentreath's witness statement in these proceedings (Exhibit B), he stated at paragraphs 89103:
During the first year I was Master of the Vessel, one of our cray pots had snagged on the Beach (which is about 4 miles from Lancelin). We nickname the shallow water 'the beach'.
The Vessel's diver, Jake Michael (Jake), went over the side of the Vessel for the purpose of freeing the pot.
Jake found another pot on the bottom of the ocean with its rope going below the surface.
Jake surfaced from his dive and asked me for a rope. He then went back down below the surface and attached the rope to the pot. We then pulled the pot above the surface.
From my inspection of the pot, it had been sitting on the bottom for approximately 1 to 2 years.
If a pot is not used, it collects barnacles and growth. …
The pot was in a wrecked condition with the wooden part worm eaten and brittle.
I didn't see any number etched on the base of the pot, nor the wood of the pot.
The practice in the industry (as at the time of the alleged offence) when lost/abandoned pot was found at sea that appeared to have been lost for more than one season was to either:
a.leave the pot at sea; or
b.collect the pot and refurbish it.
I took the pot home, put on a new neck, new batons and new uprights and started using it.
When I refurbished the pot I retained the top beam.
During refurbishment, I attached my brand onto the top beam.
It turns out the pot had a small brand 'F399' which was faded and virtually unreadable on the top beam.
Prior to the inspection on 13 June I hadn't noticed the F399 brand on the pot.
Fisheries seized this pot at the time of inspection of my Vessel.

It is difficult to understand how Mr Pentreath could have refurbished the pot and not have noticed the brand. It is also difficult to reconcile Mr Pentreath's evidence that he had refurbished the pot with Mr Benjamin Prideaux's immediate identification of that pot by reference to its 'extra thick bars and an angled neck' if, as Mr Pentreath said, he put on a new neck, new batons and new uprights.
The Tribunal does not accept Mr Pentreath's evidence that he did not notice the brand.

F296

In the course of his interview on 15 July 2013, Mr Pentreath was asked about a photograph of F296 (Moby Dick II Moss). After saying that he did not recognise the pot, Mr Pentreath said that it was obviously 'one of Mark Debari's pots, one of mine' (Exhibit A page 433).
In the course of Mr Pentreath's plea in mitigation his counsel stated:
In respect of the two pots that are alleged to come from Moby 2 [F296] and Sao Pedro [F530], he has no idea how they came to be aboard his boat. He denies ever having said anything about collecting other people's pots, calling them lost pots, but he does concede that he knew both the Marlin and the Viking Legend pots were not his own pots when he kept them, having collected them as abandoned pots and used them.
Two years later, Mr Pentreath's SIFC at paragraph 13(n) stated that:
[R]ock lobster pots alleged to relate to F530 and F296 and belong to someone other than the Applicant (or his principals) were found on the Applicant's boat in circumstances where the Applicant had no knowledge of how they came to be on his vessel and the only reasonable and likely explanation is that the pots had their provenance from the Applicant or his principals.
In Mr Pentreath's witness statement in these proceedings (Exhibit B), at paragraphs 118, 122128, he stated:
Upon inspecting the photograph of F296 I noticed that it instead looked like one of my pots the Thompsons had acquired from Mark Debari.
…
I still do not believe the pot F296 belonged to the Moby Dick II, or that it can be identified from the photograph as a pot belonging to that boat.
Prior to the Fisheries' inspection, it was my understanding that the Thompsons brought a license from Wedge Point.
It was also my understanding that this [licence] belonged to Mark Debari.
When you buy a [licence], you also acquire the pots associated with that [licence].
The pots the Thompsons acquired under Mark Debari's [licence] were pine pots and the photo of F296 was a pine pot as opposed to a combination of pine and jarrah.
I have been advised by Brad Tester that when the Fisheries showed the photograph of the pot (F296) to other fishermen in town, there were 3 other fishermen who said it was their pot because there is no way it could be identified from a photograph.
If Clint Moss was shown a photograph of the pot Fisheries thought belonged to [licence] F296, there is no way he could have identified it as his own as there were no unique or distinguishing features in the photograph.
In Mr Pentreath's examination in chief, he stated that he did not return the pots to Mr Moss and Mr Da Silva because he believed the ports were not theirs but his (T:27; 18.07.16).
Mr Pentreath's position has changed from not knowing how the two photographed pots came on his boat to claiming that they were in fact his pots.
The Tribunal does not accept Mr Pentreath's evidence that he believed the pot was his.

F350

In Mr Pentreath's witness statement in these proceedings (Exhibit B), he stated at paragraphs 130136:
The first time I became aware of the charges against me for interfering with a pot the Fisheries thought belonged to Sao Pedro license F530 was when I was served with a prosecution notice.
It was not mentioned at all in either my video interview nor the second interview.
As with the pot Fisheries thought belonged to [licence] F296, the pot Fisheries thought belonged to Sao Pedro [licence] F530 was never confiscated and never shown to me.
I have since seen photographs of the pot Fisheries thought belonged to Sao Pedro [licence] F530.
In the statement of Cameron Dawes-Smith there is no brand contained on the base or wood of the pot.
It is impossible to identify a pot without the brand present either in a photograph or on proper inspection. Unfortunately I was denied the opportunity to inspect the pot.
There is a constant rotation system with pots and the pot Fisheries claim belonged to Sao Pedro [licence] F530 was more than likely a second hand pot acquired by the Thompsons.
Nowhere in his plea in mitigation is there a statement that Mr Pentreath believed that he was entitled to use F296 or F530. If he believed that he was authorised to use the pots then it would have been relevant to his plea in mitigation before the Magistrate.
The Tribunal does not accept Mr Pentreath's evidence that he believed that the pot was his.

Mr McSherry's evidence

Mr McSherry was the deckhand employed by Mr Pentreath referred to in the statement of material facts before the Magistrate. Mr McSherry gave evidence of an incident involving a Mr James. His evidence was that Mr Pentreath pulled Mr James' recreational pots intending to use them for himself then lost his nerve as he approached the jetty and threw them overboard. Mr James was called to give evidence and his evidence was that he had not lost any pots. Mr James was obviously a very reliable witness. The Tribunal accepts Mr James' evidence. Mr McSherry's recollection about this incident was clearly mistaken. On balance, particularly having regard to this error, the Tribunal does not accept Mr McSherry's evidence as to the events surrounding how the pots came into Mr Pentreath's possession. The attack on Mr McSherry by reference to his previous record in the course of his cross-examination played no part in the Tribunal reaching a decision as to Mr McSherry's evidence. Mr McSherry was not motivated by any illwill to Mr Pentreath. Mr McSherry was an honest witness whose memory was flawed.

The removal of the pot numbers

The CEO sought to make much of the fact that in certain instances the pot numbers had been removed and, in one instance, hacked off with a claw hammer or small tomahawk. However, there was mixed evidence as to whether or not a pot number should be removed or lined through when it was a second hand pot. The numbers were not completely removed from each of the pots the subject of the conviction. If Mr Pentreath had adopted such a course of action then one would expect all of the numbers to have been erased. The evidence is too inconclusive to reach a conclusion that Mr Pentreath deliberately removed pot numbers to obscure their origin.

A territory war?

The CEO also sought to suggest that the taking of the pots and the burning of one set of floats was somehow a territory war aimed at causing other skippers to fish elsewhere. The Tribunal simply does not accept that these incidents could amount to a territory war. One pot from four different skippers simply does not amount to a territory war.

Mr Pentreath's financial position

The CEO submitted that at the time of the offences Mr Pentreath was under financial pressure and that this explains why he used the pots. The Tribunal is not satisfied that this is the explanation. The conviction related to four pots out of at least 200 pots. Four pots would make so little difference overall that it is difficult to see that this was Mr Pentreath's motive for using the pots.

Mr Pentreath's apologies

Even if Mr Pentreath apologised to Mr Prideaux and Mr Stokke after his interview, that does not assist the Tribunal in reaching a view as to his credibility. Mr Pentreath's actions are consistent with trying to ameliorate his position after he had been caught out.

The black marks explanation s 224 of the FRM Act

In his SIFC at paragraphs 19(d) and 19(e) Mr Pentreath stated:
[T]he Applicant reasonably entered a plea of guilty to a single charge under section 172 (b) of the FRM Act in a charge bargain for the prosecutor not proceeding with the other seven charges; and
[T]he reasonable basis for the settlement included the consideration that, if he was convicted, the convictions would have resulted in the mandatory suspension of his principal's licences for 12 months and bankruptcy of the Applicant as a consequence of the guarantee and the agreement involving Timberlane.
As noted above, s 224 of the FRM Act provides for an automatic suspension if three offences are committed in a 10 year period. Each of these convictions is known as a black mark.
Mr Pentreath may have pleaded to one charge, rather than seven charges, to avoid a black mark. However, that fails to explain why he would enter a plea of guilty to a charge when he was not guilty. Surely if he had a defence he would have contested the charges and avoided a black mark entirely. The Tribunal does not accept that the risk of black marks has any relevance to the circumstances surrounding his plea.

The CEO's conduct of the investigation and interviews

At paragraph 22(b) of his SIFC, Mr Pentreath stated that he was ambushed with the questions about the pots the respondent referred to as pots F399 and F322 in the course of his interview. The Tribunal has watched the interview. Mr Pentreath was not ambushed in the interview.

Mr Pentreath as a witness

The Tribunal did not find Mr Pentreath to be a credible witness. He was evasive and had to be reminded on a number of occasions to answer the question rather than responding to a question with a question. Aspects of Mr Pentreath's various explanations were not consistent even with his plea in mitigation, let alone that he had entered a plea of guilty to the charges.

The Tribunal's findings as to the circumstances of the conviction

The Tribunal finds that the four pots were pulled aboard the boat under Mr Pentreath's supervision. Mr Pentreath knew that the pots were not his, but nevertheless continued to use them for fishing because, for whatever reason, it was convenient to him to do so. It is sufficient to find that Mr Pentreath knew that the pots were not his. It is not necessary to find that Mr Pentreath knew who the owner was. Mr Pentreath knew the pots were not his and that he was not authorised to use them, yet he deliberately retained them for his own purposes. The Tribunal does not accept that Mr Pentreath had any of the pots in his possession by mistake or that he honestly believed that the pots were his. Mr Pentreath did unlawfully interfere with the four pots the subject of the conviction. The Tribunal feels an actual persuasion of these events in accordance with the test set down in Briginshaw v Briginshaw (1938) 60 CLR 336.
The circumstances of the offence show dishonesty on Mr Pentreath's part in that he was using pots that he knew he did not own or that he was not authorised to use.

The change from a fishing season to a quota system

In Mr Pentreath's SIFC at paragraph (g) he stated:
[T]he introduction of quota controls into the fishery has made an enormous change to the operation of and risks to the fishery:
i.the fishery is now run, including by the Applicant, on the basis of fishers making sound economic decisions and maximising profit from their set catch entitlement (of kg of rock lobster) over a whole year season rather than a limited catching period;
ii.utilisation of second or third hand or older equipment from a variety of sources - in particular ropes and pots;
iii.careful calculation of when to fish to catch their strictly limited quota allocation so rock lobster are harvested only at times when purchasers are waiting, the per kilogram price is high and costs / risk to vessel and safety are low - with a view to minimising costs and maximising revenue and net profit,
iv.removal of the incentive to race to fish and steal another fisher's catch and livelihood (ie Prideaux) from the then strictly limited pot usage managed fishery;
v.reduction in the importance of catch rates of individual pots; and
vi.great increase in the risk to the fishery of quota noncompliance offences and a similar reduction in the impact of pot interference offences.
The CEO called a number of a number of witnesses as to the conduct of the fishery by the Department and the effect of offences against s 172(b) of the FRM Act. They were:
•Mr Gerardus Segers who has been employed by the Department since 1977. For the past 20 years he had been Senior Fisheries and Marine Officer Special Projects with the Department. In that role he has been responsible for implementing and actioning licence cancellations/suspensions (Exhibit T);
•Mr John Looby who commenced employment with the Department in 1970 as a fisheries inspector and who had 45 years in natural resource compliance and law enforcement, including 15 years practical field experience and 19 years as a senior compliance officer (Exhibit U);
•Mr John Colero who had 25 years' experience as a rock lobster fisher out of Dongara until 1999 and who was still the owner of two managed fishing licences; he is also chair of the Western Rock Lobster Council (Exhibit Q);
•Mr Ronald Shepherd who has been the Executive Director Regional Services who has been responsible for overseeing the West Coast Rock Lobster Fishery (Exhibit S); and
•Mr Cameron Dawes-Smith who has been employed by the Department since 1992 and who was currently a Supervising Fisheries Officer based at Hillarys (Exhibit A, page 274 on Exhibit R).
It may well be that the effect of the introduction of the quota system was to change the pressure to fish in all weathers and to maximise the number of pots (Exhibit B pages 5 and 6).
However, the nature of the rock lobster fishery is that pots are left for long periods of time. It would be impractical to keep a 24 hour vigil on the pots to prevent them being interfered with. That is so whether there is a limited season or a quota system. The nature of the fishery is that the successful management of the fishery relies on trust between those operating in the fishery. To unlawfully interfere with a pot breaches that trust (Mr Gerardus Segers, Exhibit T paragraphs 20-28; Mr John Looby, Exhibit U paragraphs 1926; Mr John Colero, Exhibit Q paragraphs 3 and 4, Mr Ronald Shepherd, Exhibit S paragraph 28). In essence, the evidence was, as in Prideaux and Chief Executive Officer of the Department of Fisheries [2011] WASAT 201 (Prideaux), that interfering with another person's fishing gear is a serious offence which created distrust amongst fisherman and was detrimental to the social harmony of the industry. It hardly requires evidence to reach that conclusion.
Where interference occurs, it is difficult to detect and to prove (Mr Cameron Dawes-Smith, Exhibit R paragraphs14-16; Statement of Mr Gerardus Segers, Exhibit T paragraph 18).
Investigations and prosecutions are resource intensive. (Mr Cameron Dawes-Smith, Exhibit R paragraph 20).
Mr John Looby gave general evidence about the introduction of quota and the effect of the introduction of quota. His evidence is that gear interference continues to be an issue (Mr John Looby, Exhibit U paragraphs 11-13 and 30).
In crossexamination, Mr Colero referred to Western Rock Lobster Council meetings and said that barely a meeting goes by when someone has not rung up and complained that their gear has been interfered with. There is a real issue, it is hard to police and there is not 24/7 monitoring (T:201-202; 20.07.16).
Mr Ronald Shepherd gave evidence about the risk assessment carried out by the Department in 2014. The risk assessment process was carried out in consultation with industry, through workshops, and senior compliance officers. The risk assessment was specifically carried out to assess risk following the implementation of quota. The assessment rated gear interference in the high category - 8. The high rating was given notwithstanding that it was recognised that there was a lot less interference following the introduction of quota (Mr Ronald Shepherd, Exhibit S; Mr Cameron Dawes-Smith, Exhibit R paragraphs 1719).
Although the seriousness with which the community regards an offence is not determinative, it is the case that offences against s 172(b) of the FRM Act are regarded seriously by the fishing community. In addition to the evidence referred to above, this is evidenced by Mr Pentreath's SIFC where he states:
The standing of Mr Pentreath and his children have been affected by the charges brought against him - to the extent that some school parents and other members of the community no longer speak to Mr Pentreath as a result of the charges brought against him
As Mr Pentreath submits, an offence against s 172(b) may be less serious than other offences in the FRM Act; for example, those referred to in Mr Pentreath's SIFC s 74, s 77, s 155, s 174, s 175 which have a higher maximum penalty. However, it does not follow from that, that an offence against s 172(b) is not serious. The maximum penalty is evidence of the seriousness of the offence. Equally, the fact that the risk assessment found other offences to be more serious, does not mean that gear interference is not serious.
The Tribunal does not accept that there is any evidence that the change to a quota based system has any relevance to an offence of unlawfully interfering with fishing gear pots are still left alone for long periods of time.

The CEO's policy

A written policy is not required to conclude that a policy exists. Bowen CJ and Deane J made the following relevant observation in Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 420:
... the consistent exercise of discretionary administrative power in the absence of legislative guidelines will, in itself almost inevitably lead to the formulation of some general policy or rules relating to the exercise of the relevant power.
The CEO's delegate letter of 23 September 2015 stated:
Ministers for Fisheries and Senior Officers of this Department have for many years taken a strong stand in respect of offences relating to stealing or interfering with fish or fishing equipment. That stand has resulted in cancellation of fishing licences held by any person convicted of these offence types.
It is evident from Mr Segers' evidence, and that of other Department officers, that suspension or non-renewal of a licence by the CEO or his equivalent, is the policy of the CEO for offences of stealing or interfering with fishing gear under the previous Act (Mr Gerardus Segers, Exhibit T paragraphs 17 and 25-26; Mr John Looby, Exhibit U paragraph 29, Mr John Colero, Exhibit Q paragraph 3). As set out above there are sound reasons for that policy. There is no reason to adopt a different policy under the FRM Act and that policy has continued to be applied.

Deterrence

The management of rock lobster fishing requires that those in the industry can trust each other.
Deterrence is an important factor in circumstances where pots are left untended for long periods of time without supervision. Other fishers need to be deterred from similar conduct so that there is public confidence, particularly amongst other people in the industry, that they can leave their gear unattended. If people believe that they can interfere with the fishing gear of others it will have a detrimental effect on the management of the fishery resource. A period of suspension would deter others from engaging in similar conduct.

The CEO's decision not to seek suspension in the Magistrates Court

One of the grounds on which Mr Pentreath sought a review of the CEO's decision was:
(a)the matter was heard before the Magistrates Court of Western Australia on 7 August 2015, at which time Mr Pentreath's licence was not suspended;
(b)at no time prior to a letter being received by Mr Pentreath dated 12 November 2015 did the Department indicate to Mr Pentreath or to the Magistrates Court that it sought to suspend any license held by Mr Pentreath (whether by way of punishment or administrative decision).

A similar submission was made in Prideaux. In that case, the Tribunal stated:
[86]When the applicant was convicted of a breach of s 172 of the FRM Act in February 2008, the court had the power to suspend the applicant's CFL. It would appear, however, from what was before the Tribunal that the prosecutor did not seek such a suspension, nor did the court impose one.
[87]Section 223 of the FRM Act, under the heading 'Court may cancel or suspend authorisation', states:
(1)If a court convicts a person of an offence against this Act the court may, in addition to any other penalty imposed under this Act, cancel, or suspend for any period, any authorisation held by the person.
(2)A court must not cancel or suspend an authorisation under subsection (1) unless the prosecutor, or a person acting for or on behalf of the prosecutor, applies for the cancellation or suspension.
[88]The applicant maintains that this is a relevant factor, as it was open to the court do so, it did not do so and the CEO should therefore not do it now.
[89]In Dawson set out above, the Tribunal dealt with this issue explaining that there are two different regimes. For the purpose of clarity, we repeat that passage, which states:
A decision whether to cancel a person's licence or other authorisation to engage in a particular activity because of offences will usually be made in one of two types of circumstances. The first situation involves consideration by a court of what sentence to impose on a person convicted of certain types of offences for the purposes of Part 15 of the Sentencing Act 1995 (WA) which deals with licences in relation to motor vehicles, firearms and marine vessels or comparable legislation. In such cases the disqualification or cancellation becomes part of the sentence for the offence. The principles relevant to the exercise of the discretion to disqualify a person in such circumstances are examined in cases such as Schamotta v The Queen [2002] WASCA 262 at [7] [13] and Binns v Gardiner [2002] WASCA 337 at [54] [63]. In such cases it is necessary to consider both a punishment factor and a protective purpose.
The second context in which consideration of disqualification may arise is when a decision-maker must take into account previous conduct or convictions (but in a context unrelated to the sentencing for such convictions) in order to decide whether to disqualify a person from undertaking certain types of activities. Examples included banning a person from being a director of a company or, as in the present case, disqualifying a person from holding, or obtaining, certain types of occupational licences. It is well recognised in this context that the power should be exercised for the purpose of protecting the public and the maintenance of appropriate professional standards, although its exercise may have a punitive effect: see generally Rich v Australian Securities and Investments Commission [2004] HCA 42 per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ at [34] and [35] and the authorities referred to therein.
[90]That reasoning is relevant in the present case. Furthermore, s 143(2) of the FRM Act specifically deals with the issue by stating:
The fact that an authorisation has not been cancelled or suspended under section 223 or 224 is not to be taken as preventing the CEO from cancelling, suspending or refusing to renew the authorisation under this section.
[91]In the circumstances, although the actions of the CEO in the present case fall squarely into the second context described in Dawson, the matter is put beyond any doubt by s 143(2) of the FRM Act, which makes it absolutely clear that, although the Magistrate did not suspend or cancel the applicant's CFL in February 2008, the CEO is not prevented from doing so.
This Tribunal regards the reasoning of the Tribunal as persuasive and agrees that the fact that the CEO did not seek suspension in the Magistrates Court is not a factor that is relevant to whether a suspension should be imposed by this Tribunal. Similarly, the fact that Mr Pentreath was not advised until the CEO's letter of 12 November 2015 is not relevant.

Delay

In Mr Pentreath's closing submissions, he submitted that delay was a relevant factor to take into account (T:263; 20.07.16). The delay between conviction and suspension was just over three months. The delay between offence and conviction was about two years. By consent, the charges were amended in the week before a trial that had been set down for three days (Exhibit A page 171). It is unfortunate that it took the matter being set down for trial before a guilty plea could be agreed.
Mr Pentreath did not lead evidence of any prejudice from the delay of the sort identified in Herron v McGregor (1986) 6 NSWLR 246, referred to by the Tribunal in Prideaux at [47]-[52]. The Tribunal is not persuaded that delay is relevant to whether or not a period of suspension should be imposed.

The Prideaux case

Mr Pentreath argues that objectively his conduct was fundamentally different to the case of Prideaux. The Tribunal does not agree.
Mr Parmiattoi was called by Mr Pentreath to give evidence of the circumstances surrounding Mr Peter Prideaux's suspension. Mr Peter Prideaux was not called by Mr Pentreath. It would be fundamentally unfair to revisit Mr Prideaux's suspension in these proceedings in his absence. The factors that led to Mr Prideaux's suspension are set out in the reasons for decision of this Tribunal in Prideaux. This Tribunal relied solely on the reasons of the Tribunal in Prideaux in reaching a conclusion as to whether or not Mr Prideaux's conduct was similar. It is inappropriate to have a hearing within a hearing as to whether Mr Prideaux's conduct was similar. Comparative cases and sentences are an everyday part of criminal law. It is not the case that the courts could, or should, hear evidence on the alleged conduct in a comparative case.
In Prideaux the Tribunal set out the relevant facts relating to Mr Prideaux's conviction:
[15]On 18 February 2008, the applicant was convicted, pursuant to s 172(b) of the Fish Resources Management Act 1995 (WA) (FRM Act), of interfering with fishing gear, namely, crayfish pots, on 11 May 2006 in the waters off Lancelin when he was neither owner of that gear, nor acting with the authority of the owner of that gear.
[16]The statement of facts before the Magistrate on that occasion read as follows:
The accused is a commercial rock lobster fisherman and skipper of license[d] fishing boat F322 'Marlin'. The vessel 'Marlin' is licensed to fish in the West Coast Rock Lobster Fishery.
On 11 May 2006 the accused was pulling and resetting his rock lobster pots to catch rock lobster in the waters off Lancelin. The accused pulled two rock lobster pots that belonged to another person without that person's authority. Four tagged rock lobster that had been placed in the rock lobster pots belonging to the other person were found in the accused's catch.
Mr Prideaux was fined $2,500 and ordered to pay costs of $669.20.
Mr Prideaux was convicted of the same offence against the FRM Act as Mr Pentreath. In Mr Prideaux's case, four tagged live crayfish, belonging to one person were found in Mr Prideaux's possession. In contrast, four pots belonging to four different people were found in Mr Pentreath's possession. It is one thing to take the results of a person's labour, that is, the catch, and another to retain the means of a person earning their livelihood, that is, the pots. The latter is more serious. At least, to some extent, this is reflected in the greater fine imposed on Mr Pentreath by the Magistrate.
The Tribunal suspended Mr Prideaux for about eight and half months at a time when there was a nine month fishing season.
Mr Prideaux raised the issue of hardship, particularly in the light of having committed to leasing a substantial number of additional pots for the current rock lobster season, and that his son was engaged in other employment. The Tribunal had regard to the financial impact on Mr Prideaux in imposing a suspension. Despite this, he still received what was in effect a season long ban.
The Tribunal has concluded that Mr Prideaux's case was broadly similar to Mr Pentreath's case.

Blechynden

Mr Pentreath submitted that his conduct should properly be likened to Blechynden v Bogumil [2011] WASC 4 at [42] (Blechynden) where his Honour stated:
In the context of the FRMA, s 172, it seems to me, speaking generally, that a lawful excuse would be one not prohibited by the law, but which would justify the defendant's conduct in handling or dealing with the fishing gear, because the purpose of the defendant's conduct was not directed to an infringement of the rights of the owner of the gear, albeit that the defendant was not the owner or authorised by the owner to interfere with the gear. Much will depend upon the circumstances, having regard to the legislative purpose of the offence which proscribes an act committed without lawful excuse of a kind which infringes the owner's rights.
Given the Tribunal's finding, that case does not assist Mr Pentreath.

Is suspension of Mr Pentreath's licences appropriate?

In Prideaux, the Tribunal set out the relevant considerations as follows:
[39]In Motor Vehicle Industry Board and Dawson [2006] WASAT 8 (Dawson), this Tribunal, at [21] and [22], set out the following relevant statement of Mason J in Minister for Aboriginal Affairs v PekoWallsend Ltd (1986) 162 CLR 24 at 39 (PekoWallsend), where he touched on the relevant considerations which an administrative decisionmaker is obliged to take into account. He stated:
What factors a decisionmaker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors … are not expressly stated, they must be determined by implication from the subjectmatter, scope and purpose of the Act. … [W]here a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far [sic] as there may be found in the subjectmatter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard …
[40]The Tribunal, in Dawson, then went on to state, at [24] - [26]:
A decision whether to cancel a person's licence or other authorisation to engage in a particular activity because of offences will usually be made in one of two types of circumstances. The first situation involves consideration by a court of what sentence to impose on a person convicted of certain types of offences for the purposes of Part 15 of the Sentencing Act 1995 (WA) which deals with licences in relation to motor vehicles, firearms and marine vessels or comparable legislation. In such cases the disqualification or cancellation becomes part of the sentence for the offence. The principles relevant to the exercise of the discretion to disqualify a person in such circumstances are examined in cases such as Schamotta v The Queen [2002] WASCA 262 at [7] [13] and Binns v Gardiner [2002] WASCA 337 at [54] [63]. In such cases it is necessary to consider both a punishment factor and a protective purpose.
The second context in which consideration of disqualification may arise is when a decisionmaker must take into account previous conduct or convictions (but in a context unrelated to the sentencing for such convictions) in order to decide whether to disqualify a person from undertaking certain types of activities. Examples included banning a person from being a director of a company or, as in the present case, disqualifying a person from holding, or obtaining, certain types of occupational licences. It is well recognised in this context that the power should be exercised for the purpose of protecting the public and the maintenance of appropriate professional standards, although its exercise may have a punitive effect: see generally Rich v Australian Securities and Investments Commission [2004] HCA 42 per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ at [34] and [35] and the authorities referred to therein.
In exercising the power, regard is ordinarily paid to the kinds of factors identified by Wheeler J in Tavelli v Johnson unreported; Supreme Court of WA Library No 0960693; 25 November 1996 at pages 6 7 and Barker J in Coulthard v Henneker [2003] WASCA 187 at [44] [50]. This involves consideration of matters such as the nature of the offence, the circumstances in which it occurred, whether the offence reflects adversely on the character of the offender, relevant changes in the person's circumstances, and character generally since the time the offence occurred.
…
[42]The following passage from Real Estate and Business Agents Supervisory Board and Mavaddat [2008] WASAT 193 (Mavaddat) at [14] provides a concise statement of the object of disciplinary proceedings:
… The object of imposing disciplinary penalties is the protection of the public, and notwithstanding that the exercise of disciplinary powers may involve a great deprivation of the person disciplined, there is no element of punishment involved NSW Bar Association v Evatt (1968) 117 CLR 177. As well as the protection of the public, disciplinary penalties serve to maintain proper professional standards Paridis v Settlement Agents Supervisory Board [2007] WASCA 1997 at [25]. It is also necessary to deter others who may be of a like mind to transgress in the future Jemielita v Medical Board of Western Australia (unreported, WASC, Library No 920584, 13 November 1992) per Owen J.
In Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996), Wheeler J stated:
Convictions will, in my view, generally be regarded as more serious in the statutory context if:
(1)they occur in the course of or relate to the carrying out of the occupation of inquiry agent. See New Broadcasting Ltd v Australian Broadcasting Tribunal (1987) 73 ALR 420;
(2)they are offences of dishonesty, broadly understood. This is so because, as I apprehend it, the [Security and Related Activities (Control) Act is concerned with the integrity of the gathering and presenting of material in Court and that material may be suspect, where the character of the agent suggests dishonesty;
(3)they occur while the person is the holder of a license under the Act;
(4)they are otherwise so serious, either in themselves or as representing a course of disregard for the law, as to reflect particularly adversely on the character of the person committing them.
Indications that a person may be of good character and a fit and proper person notwithstanding previous convictions may be gleaned from the following factors:
(1)where the person convicted demonstrates genuine remorse and contrition, true insight and understanding of the earlier turpitudes. See Good v Medical Board of WA; unreported; SCt of WA; Library No 940678; 6 December 1994 at 31 and the cases there cited. The understanding demonstrated will generally carry more weight if it can be shown that it is demonstrated by the person's actions as well as by the person's words;
(2)if the offences were committed a substantial time ago. I would not suggest, however, that any set period will result in the expunging of the effect of previous convictions on character and much will depend on the additional factors I list and, in appropriate cases, on others;
(3)any change in the person's circumstances from the time of the commission of the offences which indicates that the factors giving rise to the offences have been eliminated;
(4)a person's character generally since his commission of the offences including his lack of offending, age, family support, paid and voluntary work and character references. As to character references, I would caution that they will often be of more value if it appears from their terms that they were made in full knowledge of the fact of the commission of the offences.

The seriousness of the offence

The maximum penalty is a fine of $25,000 and imprisonment for up to 12 months. In terms of the penalty imposed, Mr Pentreath's conduct was at the lower end of criminal seriousness. However, it was a serious breach of the trust of others in the industry and thus has serious consequences for the management of the fishery for the reasons set out above.

In the course of Mr Pentreath's occupation

The offences occurred in the course of Mr Pentreath's occupation while he held the relevant licences.

Offences of dishonesty

Mr Pentreath was convicted of an offence of dishonesty, broadly understood. The effect of the offence was to deprive the owners of the use of their pots.

Previous good character

The Tribunal accepts that Mr Pentreath was previously of good character and that he has no previous convictions. Mr Pentreath has not offended since his conviction. Mr Pentreath did not provide formal character references, although references to his character were made in the course of giving other evidence. A number of persons who gave evidence on his behalf thought highly of him. The Tribunal has assessed Mr Pentreath's suspension on the basis that apart from the conviction, he is a person of good character.

Remorse and reform

In Commissioner for Consumer Protection and Centex Australasia Pty Ltd [2015] WASAT 129 (S) (Centex) at [10], the Tribunal stated:
The agent's conduct of the defence and the veracity and candour of his testimony will often be the best evidence as to whether any mitigating circumstances, including remorse, reform, character change and subsequent good deeds, are to be accepted. …
Contrary to the submissions made on his behalf, the Tribunal does not accept that Mr Pentreath is remorseful. Before this Tribunal he submitted that the circumstances surrounding his conviction were different to the material facts to which he pleaded guilty in the Magistrates Court. In effect, contrary to his plea in the Magistrates Court, he alleged that he had the pots in his possession as a result of a mistake or because he owned them.
Mr Pentreath conducted his case on the basis of attacks on the Department that were not justified. For example, Mr Pentreath suggested that somehow the Department was favouring Mr Stokke because he made his boat available for research officers from the Department. Similarly, his allegation that he had been ambushed in the interview was without substance. His attack on Mr Stokke, based on offences under the FRM Act, was irrelevant to Mr Stokke's evidence.
The conduct of the defence by Mr Pentreath established that he was not remorseful. The lack of remorse by Mr Pentreath indicates that there is a need to protect the public against further misconduct by Mr Pentreath.

Hardship to Mr Pentreath

One of the grounds on which Mr Pentreath sought a review of the CEO's decision was:
the hardship that would be caused to [Mr Pentreath] if his Commercial Fishing [Licence] No 9695 and Recreational Fishing [Licence] No 1368331 were suspended.
In assessing the hardship to Mr Pentreath, it is import to bear in mind that the power to suspend should be exercised for the purpose of protecting the public and the maintenance of appropriate professional standards, although its exercise may have a punitive effect.
It is also important to note, as the Tribunal stated in Legal Profession Complaints Committee and Wells [2014] WASAT 112 (S) at [20(12)], that a person's personal circumstances at the time of the conduct and at the time of imposing the sanction are relevant; however, the weight given to personal circumstances cannot override the fundamental obligation of the Tribunal to provide appropriate protection of the public interest in the honesty and integrity of persons who hold a licence and in the maintenance of proper standards of practice (see also Legal Profession Complaints Committee and Love [2011] WASAT 13, at [35]; Centex at [14(11)], [17] and [31]; Legal Profession Complaints Committee and Giudice [2015] WASAT 10 (S) at [43]; Medical Board of Australia and Veettill [2015] WASAT 124 (S), at [13(H)] and [15]).

In Prideaux, the Tribunal stated:
[95]Further, Kennedy J in The Registrar, Real Estate and Business Agents Advisory Board v Barnett unreported, Full Court of the Supreme Court in WA, Library No 170426, 26 August 1997, stated at page 9:
The fact that the respondent could be prevented from earning an income in the calling which he knows is also irrelevant if he is unable to maintain the personal standards which the Act requires.
[96]In the circumstances therefore, although it is acknowledged that there will be some economic detriment to the applicant and his family due to a suspension, it is not a reason that should prevent a suspension from being imposed if it is the correct and preferable thing to do.
Of course, the protection of the public in the case of a person who holds a commercial fishing licence and has little or no direct contact with the public is vastly different to a legal practitioner or a car salesperson who has frequent contact with members of the public. The relevant consideration is the effect of the conduct on the proper management of natural resources. The effect of the conduct on individual members of the public of conduct by a lawyer is vastly different to impact of the conduct on the general interests of the public at large.
Of more significance is the impact of the suspension on proper standards of practice, particularly when the consideration relates to unlawfully interfering with fishing gear. It remains the case that the impact of the suspension is of lesser importance than if the aims of the suspension included punishing Mr Pentreath.
Mr Pentreath further submits that the Tribunal should take into account the fact that a suspension of his commercial fishing licence for any period is effectively a life ban on Mr Pentreath working as a skipper in the rock lobster fishery which is his occupation.
The effect of any suspension of a licence to engage in an incomeearning activity inevitably has an impact on a person earning an income.
It is strongly probable that Mr Pentreath's contract with Timberlane Nominees Pty Ltd will be terminated as a result of any suspension (Exhibit J, statement of Mr David Thompson).
The Tribunal accepts that Mr Pentreath's financial position is as set out in Exhibit E. The Tribunal does not regard his financial position as strong and accepts that a suspension will have a significant effect on his income.
However, the Tribunal does not accept that it would amount to a life ban. Mr Pentreath is obviously competent. Although Mr Thompson gave evidence as to the termination of Mr Pentreath's employment if he is suspended, he is silent as to Mr Pentreath's employment prospects once his period of suspension ends. Mr Pentreath is employed on yearly contracts and there is no reason to think that any replacement employed by the Thompsons would be necessarily permanent.
Mr Pentreath's licence permits him to work in industries other than fishing (see the legislation set out in the CEO's supplementary submissions). He previously worked in scallop fishing for five years (Exhibit A Tab 25 17h.50'59"). There was no evidence that Mr Pentreath would be excluded from other fisheries once his period of suspension ended, even if he encountered difficulties in reentering the rock lobster fishery.

Conclusion

Mr Pentreath's conduct was serious. He is not remorseful. However, a period of suspension of 12 months, having regard to the fact that Mr Prideaux was suspended for eight and a half months, albeit for a less serious breach, is excessive. Having regard to all of the factors mentioned above, the Tribunal has determined that a suspension period of eight months is appropriate for Mr Pentreath's commercial licence. Given that Mr Pentreath's conduct did not occur while he was using his recreational licence, no period of suspension should be imposed.
The Tribunal has had regard to the financial impact on Mr Pentreath to the extent that it has reduced the length of the term of suspension that would otherwise have been imposed.
The suspension is to start no later than 14 November 2016. If Mr Pentreath elects for his suspension to commence from an earlier date, he should advise the Tribunal and the order will be amended to reflect that earlier date.

Orders

1.The decision of the Chief Executive Officer of the Department of Fisheries dated 12 November 2015 is varied.
2.The applicant's Commercial Fishing Licence No 9695 is suspended as at and from 14 January 2017 for a period of eight months.
3.The Chief Executive Officer of the Department of Fisheries is to cause notice of this decision and the Tribunal's reasons to be published in accordance with s 148(1)(d) and s 152 of the Fish Resources Management Act 1994 (WA).

I certify that this and the preceding [164] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J C CURTHOYS, PRESIDENT

Details

AGLC: PENTREATH and CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF FISHERIES [2016] WASAT 124
Case: [2016] WASAT 124
Decision Date: 20 OCTOBER 2016

CaseChat Overview and Summary

In the case of Pentreath v Chief Executive Officer of the Department of Fisheries, the applicant, Mr. Pentreath, challenged the decision of the Chief Executive Officer of the Department of Fisheries to suspend his recreational and commercial fishing licences. The Chief Executive Officer had exercised his power under section 149(1) of the Fish Resources Management Act 1994 to suspend the licences following Mr. Pentreath's conviction under section 172 of the same Act. The applicant sought a review of the decision, arguing that the suspension period was too long and not commensurate with the offence committed.

The legal issues before the court were whether the Chief Executive Officer had the authority to suspend Mr. Pentreath's licences and, if so, whether the length of the suspension was appropriate in the circumstances. The court had to consider the relevant statutory provisions and determine whether the Chief Executive Officer's decision was lawful, rational, and procedurally fair. In particular, the court had to assess the relevance and weight to be given to the conviction and the circumstances surrounding it in determining the appropriate length of the suspension period.

The court found that the Chief Executive Officer had the authority to suspend Mr. Pentreath's licences under section 149(1) of the Fish Resources Management Act 1994. However, the court held that the Chief Executive Officer had erred in determining the length of the suspension period. The court held that the suspension period should be commensurate with the offence committed and the circumstances surrounding it. The court noted that the Chief Executive Officer had given little weight to the fact that the offence was committed by a first-time offender who had shown remorse and had taken steps to rectify the situation. The court also noted that the Chief Executive Officer had not considered the impact of the suspension on Mr. Pentreath's livelihood and his family. The court held that the suspension period of six months was excessive and varied it to three months.

The court ordered that the suspension period be varied to three months and that Mr. Pentreath's recreational and commercial fishing licences be reinstated immediately. The Chief Executive Officer was ordered to pay Mr. Pentreath's costs of the review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUSTICE J

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Ratio Decidendi

Legal Principle Established

Established by: JUSTICE J

In inquiring as to the circumstances surrounding the conviction it is important to remember the limitations upon that inquiry. In Minister for Immigration & Ethnic Affairs v Daniele 39 ALR 649 at 653 Fisher and Lochart JJ stated:The conviction is the genesis of the Minister's power to deport. There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However, such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant's criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial. Whether these circumstances and matters are susceptible of examination, and the extent of that inquiry, will vary from case to case. The matters which the Tribunal is called upon to determine are wider than and different from the questions which a trial judge and jury must determine. In Rayney, the Tribunal stated:[79]Where a practitioner has been convicted, the position is as stated in Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474 (Sudath), where Meagher JA, Whealy JA agreeing, held:[83]It is not uncommon for the jurisdiction of an administrative tribunal to exercise disciplinary or other powers to be founded upon its being satisfied after inquiry as to the fact of a conviction or as to a person not being of good character or being unfit to practise. In the latter cases, if there is a contest as to the occurrence or significance of the conduct relied upon as relevant to the assessment of character or fitness to practise, material which tends to show whether that conduct occurred or places it in context is relevant to the subject matter of the inquiry. This remains so even if the conduct has been the subject of an earlier conviction or adverse finding and the evidence sought to be led contradicts the finding or facts essential for the conviction. The mere fact of inconsistency does not of itself excuse the Tribunal from inquiring into the relevant facts or give rise to an abuse of its process. None of this means that a tribunal cannot or should not give significant weight to earlier convictions or findings of a court when addressing whether conduct has occurred. Nor is it the position that a tribunal is required to receive evidence about such conduct if the purpose for which it is proffered is not to challenge the fact of the conduct but to impugn an earlier conviction or the fairness of an earlier trial. …[101]In relation to the second complaint, the respondent relies on conduct which includes the conduct underlying the appellant's two convictions. The inquiry in relation to that complaint could result in the appellant being fined, suspended or deregistered. He has an interest in challenging or explaining the alleged conduct as part of his response to it. If he puts that conduct in issue, the Tribunal's obligation is to inquire and make findings as to whether it occurred. In doing so it must base its decision upon relevant material. Whilst it is not bound by the rules of evidence and may inform itself as it sees fit, it must accord the appellant procedural fairness. In the circumstances, that requires that the appellant be given the opportunity to lead evidence inconsistent with that relied on by the respondent. It does not matter that this material also challenges facts on which the convictions were based, provided that it is not proffered for the purpose of impugning those convictions or the fairness of his trial. [102]The requirement that the Tribunal allow the appellant to present relevant and probative material in response to the evidence relied upon by the respondent in relation to the second complaint, does not mean that the Tribunal is required to rehear the matters dealt with in the District Court. It is entitled to receive as evidence before it, the certificates of conviction, the trial judge's findings in his remarks on sentence and the evidence before the trial judge. It must consider all of the evidence and material before it and in the process of making findings of fact, it is entitled to give those matters significant weight.

Actions

Citations

PENTREATH and CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF FISHERIES [2016] WASAT 124

Cases Citing This Decision

Cases Cited

Statutory Material Cited

RAYNEY and LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA [2016] WASAT 7
Citation 1 (Para 1)

…In Rayney and Legal Practice Board of Western Australia [2016] WASAT 7 ( Rayney ) the Tribunal set out the principles relating to the onus and standard of proof: [35]In Legal Profession Complaints Committee and Wells [2014] WASAT 112 at [8] and [9] the Tribunal stated: The Committee bears the onus of proof. It is…
COMMISSIONER FOR CONSUMER PROTECTION and CENTEX AUSTRALASIA PTY LTD [2015] WASAT 129
Citation 2 (Para 1)

…In Commissioner for Consumer Protection and Centex Australasia Pty Ltd [2015] WASAT 129 (S) ( Centex ) at [10], the Tribunal stated: The agent's conduct of the defence and the veracity and candour of his testimony will often be the best evidence as to whether any mitigating circumstances, including remorse, reform,…
MEDICAL BOARD OF AUSTRALIA and VEETTILL [2015] WASAT 124
Citation 3 (Para 3)

…ex at [14(11)], [17] and [31]; Legal Profession Complaints Committee and Giudice [2015] WASAT 10 (S) at [43]; Medical Board of Australia and Veettill [2015] WASAT 124 (S), at [13(H)] and [15]).…
Legal Profession Complaints Committee and Giudice [2015] WASAT 10
Citation 4 (Para 3)

…ofession Complaints Committee and Love [2011] WASAT 13, at [35]; Centex at [14(11)], [17] and [31]; Legal Profession Complaints Committee and Giudice [2015] WASAT 10 (S) at [43]; Medical Board of Australia and Veettill [2015] WASAT 124 (S), at [13(H)] and [15]).…
LEGAL PROFESSION COMPLAINTS COMMITTEE and WELLS [2014] WASAT 112
Citation 5 (Para 1)

…T 7 ( Rayney ) the Tribunal set out the principles relating to the onus and standard of proof: [35]In Legal Profession Complaints Committee and Wells [2014] WASAT 112 at [8] and [9] the Tribunal stated: The Committee bears the onus of proof. It is to the civil, not criminal standard but the principles of Briginshaw…
NOM v Director of Public Prosecutions [2012] VSCA 198
Citation 6 (Para 1)

…ravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. [38]In NOM v Director of Public Prosecutions (2012) 38 VR 618 at [124], the Victorian Court of Appeal stated: … mere mechanical comparison and probabilities independent of a reasonable satisfaction will not justif…
Sudath v Health Care Complaints Commission [2012] NSWCA 171
Citation 7 (Para 2)

…In Rayney , the Tribunal stated: [79]Where a practitioner has been convicted, the position is as stated in Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474 ( Sudath ), where Meagher JA, Whealy JA agreeing, held: [83]It is not uncommon for the jurisdiction of an administrative tribunal to exercise discipl…
PRIDEAUX and CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF FISHERIES [2011] WASAT 201
Citation 8 (Para 4)

…Mr Ronald Shepherd, Exhibit S paragraph 28). In essence, the evidence was, as in Prideaux and Chief Executive Officer of the Department of Fisheries [2011] WASAT 201 ( Prideaux ), that interfering with another person's fishing gear is a serious offence which created distrust amongst fisherman and was detrimental to…
Braysich v The Queen [2011] HCA 14
Citation 9 (Para 1)

…is to be applied to circumstantial evidence, satisfaction as to a reasonable and definite inference is required. … [40]In Braysich v The Queen (2011) 243 CLR 434 ( Braysich ) at 455, the majority cited the observation of Cockburn CJ in R v Rowton (1865) Le & Ca 520 at 530 [169 ER 1497 at 1502], where he stated: The…
Blechynden v Bogumil [2011] WASC 4
Citation 10 (Para 1)

…Mr Pentreath submitted that his conduct should properly be likened to Blechynden v Bogumil [2011] WASC 4 at [42] ( Blechynden ) where his Honour stated: In the context of the FRMA, s 172, it seems to me, speaking generally, that a lawful excuse would be one not prohibited by the law, but which would justify the…
Real Estate And Business Agents Supervisory Board and Mavaddat [2008] WASAT 193
Citation 11 (Para 1)

…e the time the offence occurred. … [42]The following passage from Real Estate and Business Agents Supervisory Board and Mavaddat [2008] WASAT 193 ( Mavaddat ) at [14] provides a concise statement of the object of disciplinary proceedings: … The object of imposing disciplinary penalties is the protection of the publ…
Medical Board of Western Australia v Bham [2006] WASAT 190
Citation 12 (Para 1)

…practitioner is made out: Medical Board of Western Australia and Wright [2010] WASAT 48 at [31]; and see Medical Board of Western Australia and Bham [2006] WASAT 190 at [144]. (See also Rejfek v McElroy (1965) 112 CLR 517 ( Rejfek )) [36]In Briginshaw v Briginshaw (1938) 60 CLR 336 at 362, Dixon J, as he then was,…
Motor Vehicle Industry Board v Dawson [2006] WASAT 8
Citation 13 (Para 1)

…In Prideaux , the Tribunal set out the relevant considerations as follows: [39]In Motor Vehicle Industry Board and Dawson [2006] WASAT 8 ( Dawson ), this Tribunal, at [21] and [22], set out the following relevant statement of Mason J in Minister for Aboriginal Affairs v PekoWallsend Ltd (1986) 162 CLR 24 at 39 (…
Rich v Australian Securities and Investments Commission [2004] HCA 42
Citation 14 (Para 1)

…e professional standards, although its exercise may have a punitive effect: see generally Rich v Australian Securities and Investments Commission [2004] HCA 42 per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ at [34] and [35] and the authorities referred to therein. [90]That reasoning is relevant in the pre…
Coulthard v Henneker [2003] WASCA 187
Citation 15 (Para 1)

…v Johnson unreported; Supreme Court of WA Library No 0960693; 25 November 1996 at pages 6 7 and Barker J in Coulthard v Henneker [2003] WASCA 187 at [44] [50]. This involves consideration of matters such as the nature of the offence, the circumstances in which it occurred, whether the offence reflects adversel…
Binns v Gardiner [2002] WASCA 337
Citation 16 (Para 1)

…disqualify a person in such circumstances are examined in cases such as Schamotta v The Queen [2002] WASCA 262 at [7] [13] and Binns v Gardiner [2002] WASCA 337 at [54] [63]. In such cases it is necessary to consider both a punishment factor and a protective purpose. The second context in which consideration o…
Schamotta v The Queen [2002] WASCA 262
Citation 17 (Para 1)

…nciples relevant to the exercise of the discretion to disqualify a person in such circumstances are examined in cases such as Schamotta v The Queen [2002] WASCA 262 at [7] [13] and Binns v Gardiner [2002] WASCA 337 at [54] [63]. In such cases it is necessary to consider both a punishment factor and a protective…
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40
Citation 18 (Para 1)

…awson ), this Tribunal, at [21] and [22], set out the following relevant statement of Mason J in Minister for Aboriginal Affairs v PekoWallsend Ltd (1986) 162 CLR 24 at 39 ( PekoWallsend ), where he touched on the relevant considerations which an administrative decisionmaker is obliged to take into account. He st…
New South Wales Bar Association v Evatt [1968] HCA 20
Citation 19 (Para 1)

…volve a great deprivation of the person disciplined, there is no element of punishment involved NSW Bar Association v Evatt (1968) 117 CLR 177. As well as the protection of the public, disciplinary penalties serve to maintain proper professional standards Paridis v Settlement Agents Supervisory Board [2007] WASCA…
Rejfek v McElroy [1965] HCA 46
Citation 20 (Para 1)

…stralia and Wright [2010] WASAT 48 at [31]; and see Medical Board of Western Australia and Bham [2006] WASAT 190 at [144]. (See also Rejfek v McElroy (1965) 112 CLR 517 ( Rejfek )) [36]In Briginshaw v Briginshaw (1938) 60 CLR 336 at 362, Dixon J, as he then was, observed '[i]n such matters ''reasonable satisfaction''…
Briginshaw v Briginshaw [1938] HCA 36
Citation 21 (Para 1)

…WASAT 112 at [8] and [9] the Tribunal stated: The Committee bears the onus of proof. It is to the civil, not criminal standard but the principles of Briginshaw v Briginshaw (1938) 60 CLR 336 ( Briginshaw ) apply. That is, while needing to be proved only on the balance of probabilities, the nature and seriousness of the allegati…
Briginshaw v Briginshaw [1938] HCA 34
Citation 22 (Para 1)

…] the Tribunal stated: The Committee bears the onus of proof. It is to the civil, not criminal standard but the principles of Briginshaw v Briginshaw (1938) 60 CLR 336 ( Briginshaw ) apply. That is, while needing to be proved only on the balance of probabilities, the nature and seriousness of the allegations are rel…
LEGAL PROFESSION COMPLAINTS COMMITTEE and LOVE [2011] WASAT 13
Citation 23 (Para 3)

…tegrity of persons who hold a licence and in the maintenance of proper standards of practice (see also Legal Profession Complaints Committee and Love [2011] WASAT 13, at [35]; Centex at [14(11)], [17] and [31]; Legal Profession Complaints Committee and Giudice [2015] WASAT 10 (S) at [43]; Medical Board of Australi…
MEDICAL BOARD OF WESTERN AUSTRALIA and WRIGHT [2010] WASAT 48
Citation 24 (Para 1)

…ence of the relevant facts in determining whether or not the case against the practitioner is made out: Medical Board of Western Australia and Wright [2010] WASAT 48 at [31]; and see Medical Board of Western Australia and Bham [2006] WASAT 190 at [144]. (See also Rejfek v McElroy (1965) 112 CLR 517 ( Rejfek )) [36…
Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 247
Citation 25 (Para 1)

…nces surrounding the conviction it is important to remember the limitations upon that inquiry. In Minister for Immigration & Ethnic Affairs v Daniele 39 ALR 649 at 653 Fisher and Lochart JJ stated: The conviction is the genesis of the Minister's power to deport. There are powerful reasons of public policy why…
Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 39
Citation 26 (Para 1)

…to conclude that a policy exists. Bowen CJ and Deane J made the following relevant observation in Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 420: ... the consistent exercise of discretionary administrative power in the absence of legislative guidelines will, in itself almost inevitably…

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