Perez v The Queen
[1999] WASCA 262
•22 NOVEMBER 1999
PEREZ -v- R [1999] WASCA 262
| (1999) 21 WAR 470 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 262 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:158/1998 | 2 MARCH 1999 | |
| Coram: | PIDGEON J WALLWORK J OWEN J | 22/11/99 | |
| 26 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave granted Appeal allowed | ||
| PDF Version |
| Parties: | JUAN ANTONIO ARGIBAY PEREZ THE QUEEN |
Catchwords: | Criminal law Practice and procedure Federal fishing offences Fine imposed on foreign national Principles of sentencing Whether consideration of offender's ability to pay fine Whether fine should be reduced Fisheries Foreign nationals fishing commercially without licence in Australian fishing zone Substantial fines imposed Whether offender's means to pay taken into account in imposing fine Fine excessive |
Legislation: | Fisheries Management Act 1991 (Cth) s 100, s 101 |
Case References: | Cheatley v The Queen (1972) 127 CLR 291 Chiou Yaou Fa v Morris (1987) 87 FLR 36 Flego v Lanham (1983) 32 SASR 361 Fraser v R (1985) 63 ALR 103 Fry v Bassett (1986) 85 FLR 334 Gallagher v Durack (1983) 45 ALR 53 Hinch v Attorney General [1987] VR 721 R v Repacholi (1990) 52 A Crim R 49 R v Thompson [1989] WAR 219 R v Thompson [1989] WAR 219 Rahme v The Queen (1989) 43 A Crim R 81 Re Director of Public Prosecutions, Ex parte Lawler (1994) 179 CLR 270 Repacholi v R (1990) 52 A Crim R 49 Sgroi v The Queen (1989) 40 A Crim R 197 Sgroi v The Queen (1989) 40 A Crim R 197 Akimin & Ors v Cooper, unreported; SCt of WA (Heenan J); Library No 950071; 24 February 1995 Chen Yin Ten v Little (1976) 28 FLR 480 Fang Chinn FA v Puffett (1978) 22 ALR 149 Gayfer v Bere & Bakuama, unreported; SCt of WA (Parker J); Library No 980360; 24 June 1998 King v Pavlos, unreported; SCt of WA; Library No 970493; 22 September 1997 La Ode Arifin v Ostle, unreported; FCt of WA; Library No 8923; 18 June 1991 Liang v Mellon (1981) 12 NTR 9 Mitchell v Abas & Ors, unreported; SCt of WA (Wallwork J); Library No 980185; 9 April 1998 Plwang Ming Heui v Mellon (1980) 5 NTR 9 R v Kakura & Sato, unreported; SCt of NSW (Wood J); Library No 70178/90; 21 September 1990 R v Santome & Paz, unreported; DCt of WA; 14 October 1998 Tae Chang Fisheries Co Ltd v Morris (1990) 102 FLR 212 The Queen v Sabrudin, unreported; SCt of NT (Angel J); Library No S97/65; 7 February 1997 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : PEREZ -v- R [1999] WASCA 262 CORAM : PIDGEON J
- WALLWORK J
OWEN J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Practice and procedure - Federal fishing offences - Fine imposed on foreign national - Principles of sentencing - Whether consideration of offender's ability to pay fine - Whether fine should be reduced
Fisheries - Foreign nationals fishing commercially without licence in Australian fishing zone - Substantial fines imposed - Whether offender's means to pay taken into account in imposing fine - Fine excessive
Legislation:
Fisheries Management Act 1991 (Cth) s 100, s 101
(Page 2)
Result:
Application for leave granted
Appeal allowed
Representation:
Counsel:
Applicant : Mr T F Percy QC & Ms E S Clapin
Respondent : Mr S D Hall
Solicitors:
Applicant : Phillips Fox
Respondent : Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Cheatley v The Queen (1972) 127 CLR 291
Chiou Yaou Fa v Morris (1987) 87 FLR 36
Flego v Lanham (1983) 32 SASR 361
Fraser v R (1985) 63 ALR 103
Fry v Bassett (1986) 85 FLR 334
Gallagher v Durack (1983) 45 ALR 53
Hinch v Attorney General [1987] VR 721
R v Repacholi (1990) 52 A Crim R 49
R v Thompson [1989] WAR 219
R v Thompson [1989] WAR 219
Rahme v The Queen (1989) 43 A Crim R 81
Re Director of Public Prosecutions, Ex parte Lawler (1994) 179 CLR 270
Repacholi v R (1990) 52 A Crim R 49
Sgroi v The Queen (1989) 40 A Crim R 197
Sgroi v The Queen (1989) 40 A Crim R 197
Case(s) also cited:
Akimin & Ors v Cooper, unreported; SCt of WA (Heenan J); Library No 950071; 24 February 1995
Chen Yin Ten v Little (1976) 28 FLR 480
(Page 3)
Fang Chinn FA v Puffett (1978) 22 ALR 149
Gayfer v Bere & Bakuama, unreported; SCt of WA (Parker J); Library No 980360; 24 June 1998
King v Pavlos, unreported; SCt of WA; Library No 970493; 22 September 1997
La Ode Arifin v Ostle, unreported; FCt of WA; Library No 8923; 18 June 1991
Liang v Mellon (1981) 12 NTR 9
Mitchell v Abas & Ors, unreported; SCt of WA (Wallwork J); Library No 980185; 9 April 1998
Plwang Ming Heui v Mellon (1980) 5 NTR 9
R v Kakura & Sato, unreported; SCt of NSW (Wood J); Library No 70178/90; 21 September 1990
R v Santome & Paz, unreported; DCt of WA; 14 October 1998
Tae Chang Fisheries Co Ltd v Morris (1990) 102 FLR 212
The Queen v Sabrudin, unreported; SCt of NT (Angel J); Library No S97/65; 7 February 1997
(Page 4)
1 PIDGEON J: The applicant was the master of a foreign vessel which was seized when it was found fishing in Australian waters. He appeared on indictment in the District Court and pleaded guilty to five charges of contravening the Fisheries Management Act 1995 (Cth). He was fined a total sum of $100,000. The owner of the vessel, who was never within the jurisdiction, had, prior to the hearing, lodged within the jurisdiction securities which included a deed to secure payment of any fine which might be imposed up to $200,000. Full details of the offences and the circumstances how the security came to be lodged are set out in the reasons of Owen J. The first ground of appeal claims that the fine was manifestly excessive. I agree with the conclusion of Owen J that if the offender had the means to pay the fines, the fines of themselves were not excessive.
2 The remaining grounds of appeal are that the learned sentencing Judge erred in imposing fines that were, on the material before him, beyond the means and resources of the applicant, and erred in reaching the view that it was a relevant consideration that money belonging to the applicant was held on bond by the Commonwealth and might be used to satisfy any fines imposed.
3 Counsel for the prosecution in his submissions to the sentencing Judge (His Honour Judge O'Sullivan) referred to the fact that the vessel was boarded and subsequently seized by reason of its fishing within an Australian Fishing Zone near Heard Island. The United Nations Convention on the Law of the Sea provides for Australia's right to claim this fishing zone, but it also imposes upon signatory nations an obligation to ensure proper conservation and management of the resources within the zone. The sentencing Judge found that the islands adjoining the zone are included in the World Heritage list and the zone around them falls within the area of waters covered by the Convention on the Conservation of Antarctic Marine Living Resources which is one of a number of conventions that make up what is known as the Antarctic Treaty System. His Honour said that Australia is responsible for developing conservation measures in the region. It was submitted to his Honour, and his Honour found, that the fishing operation was a deliberate one carried out by the applicant under the direction of the owners of the vessel. It involved large scale fishing which, if unchecked, would provide a danger of eroding the living resources. The prompt release of fishing vessels is also governed by international treaty and by s 88 of the Fisheries Management Act. This section, as a condition of release of the vessel, authorises the giving of security for payment of the value of the property if it is forfeited and for the payment of any fines that may be imposed under the Act in respect of
(Page 5)
- offences committed. It was pursuant to this provision that the owners gave security for the payment of any fines.
4 His Honour discussed with counsel the provisions of s 16C(1) of the Crimes Act 1914 which requires a sentencing Judge, before imposing a fine, to take into account the financial circumstances of the offender in addition to any other matters that the court is required to take into account. His Honour, in his sentencing remarks, referred to the submission made on behalf of the Crown that the owner of the vessel, being the offender's employer, had entered into a deed to secure payment of any fine which might be imposed up to $200,000. His Honour then referred to a submission made to him by counsel for the applicant that it is a matter that cannot be taken into account. His Honour said that he reached the conclusion that that view should be rejected. He said it was a relevant consideration that the security existed, especially when it was a security provided by the owner itself. His Honour was told by counsel representing both the owner and the applicant that the owner had directed the applicant to commit the offences. His Honour referred to the fact that s 88 of the Act authorised the security and consequently he considered that he could take its existence into account.
5 I consider that the purpose and policy of the Act is to deter very strongly enterprises of this type. I would see a particular intention to punish the owner where the owner directs the enterprise to take place. Such owner is almost invariably out of the jurisdiction. The only persons that can be brought before Australian courts, in these circumstances, are the persons directed by the owner to carry out the venture and who are apprehended in Australian waters. I consider, therefore, that there is an intention that an owner out of the jurisdiction is to be punished through the medium of those found within the jurisdiction carrying out the offences. Section 88 makes this intention clear.
6 The fine is imposed on the applicant personally, but the fact that there is access to a security arrangement, authorised by the Act, for the purpose of paying the fine is a financial circumstance to take into account. The applicant has access to funds that are available. An important consideration under s 16(C) of the Crimes Act is whether the applicant might be imprisoned or further detained by not being able to pay the fine. A further consideration is whether the effect of the fine might completely impoverish him to the extent that it would be an injustice. It is known that these things will not occur by reason of the existence of the security. The existence of the security in the present case is a circumstance which shows that the applicant's personal circumstances, namely his owning a
(Page 6)
- house in his own country, ceases to be material as the enforcing authorities would not have access to that house and would have no intention of seeking to have access to it by reason of the financial provisions already made to pay the fine. This of itself would cause the security to be a financial circumstance within the meaning of the Crimes Act. It would be a pointless exercise having regard to personal assets when it is clear that they will not be called upon.
7 The factors to which I have referred, including the purpose and object of the Fisheries Management Act mean the cases on sentencing to which we were referred have no application to these circumstances. There is reference in Repacholi v R (1990) 52 A Crim R 49 at 52 to the fact that a fine imposed on an offender, but paid by a third party, neither punishes nor deters. In the present case the person sought to be deterred is the owner. The deterrence and reform of the individuals found fishing is subservient to this and often of little relevance. The cases of Hinch v Attorney General [1987] VR 721 and R v Thompson [1989] WAR 219 are contempt of court cases where both the owner and the journalist or commentator concerned are each within the jurisdiction and where both can and in most cases are brought before the courts. It is a significant distinction where the true person sought to be deterred cannot be brought before the courts and the aim of the legislation is to deter such persons through the agency of those found in the jurisdiction.
8 If the court were to examine the financial circumstances of the offender independently of funds made available by the owner, then in those cases it would probably not be possible to impose any fine as it would be likely that owners would engage persons without means, and in any event the means of the person could not properly be ascertained by the court. Such an interpretation would defeat the purpose and object of the Act.
9 I consider that the learned sentencing Judge was correct for the reasons he enunciated. I would dismiss the appeal.
10 WALLWORK J: Justice Owen has set out the facts of this case and the legislation which is applicable to it. I will not repeat what his Honour has said except as is necessary for these reasons.
11 In his reasons for judgment, Owen J has said:
"I will accept, for the purposes of this exercise, that the owner was the guiding hand behind this entire endeavour and the applicant, albeit knowingly and willingly, was acting in
(Page 7)
- accordance with directions given. I accept without question the importance of the policy considerations behind the Act, which recognise the essentiality and difficulty of preserving the ecology of the area, of policing the policy, of establishing a sustainable and economically viable fishing industry and generally of preserving the integrity of the national interest in all its forms. But regard must also be had to the fact that it is the applicant, not the owner, who has committed the offences against s 100(1) and s 101(1) of the Act. The owner may have been a party to those offences, looked at in accordance with conventional criminal law principles; but, for obvious jurisdictional and other practical reasons, no such charges were laid. If it is the applicant who committed the offences, then it is upon the applicant that the sentence must be imposed."
12 With respect, I entirely agree with his Honour's remarks on this aspect of the matter.
13 I also agree with his Honour that s 88(1) of the Act, which expressly provides that AFMA may, as a condition for the release of the boat, require that security be given for, amongst other things, "the payment of any fines that may be imposed under this Act", is not directed to the calculation of the fine which might eventually be imposed.
14 I agree with his Honour that s 106, which empowers the Court to order forfeiture of assets of considerable significance, allows the court to penalise the owner of the vessel. In this case, assets with an agreed value (leaving to one side the dispute aired at the sentencing hearing about the value of the boat) totalling $1,250,000.00 were ordered to be forfeited.
15 I agree with Owen J that the forfeiture of the assets will send a message to owners of foreign fishing vessels.
16 In my opinion there is nothing in the relevant legislation which authorises the amount of the fine for the captain of a fishing vessel to be fixed on any other basis than that which was set out by Malcolm CJ in Sgroi v The Queen (1989) 40 A Crim R 197 at 200 where his Honour said amongst other things that:
"The purpose of a fine is primarily to punish the offender. Consequently, the amount of the fine must be such as will constitute an appropriate punishment having regard to the offender's capacity to pay. Thus, the amount and method of payment of the fine will need to take into account, as far as
(Page 8)
- practical, the financial resources and income of the offender and the nature of the burden that its payment will impose."
17 His Honour also said at 201:
"The question whether the amount of a fine is within the range of a sound discretionary judgment is to be determined in the same manner as the same question when asked with respect to a sentence of imprisonment, save that in the case of a fine, considerations of the offender's financial means of capacity are relevant in determining the amount of a fine which will constitute a punishment proportionate to the gravity of the offence in the light of the circumstances under which it was committed, the antecedents of the offender and, where appropriate the objective of general deterrence."
18 Those same principles are now in the Crimes Act 1914 (as amended) (Cth). Section 16C of that Act provides:
"(1) Subject to subsection (2), before imposing a fine on a person for a federal offence, a court must take into account the financial circumstances of the person, in addition to any other matters that the court is required or permitted to take into account.
(2) Nothing in subsection (1) prevents a court from imposing a fine on a person because the financial circumstances of the offender cannot be ascertained by the court."
19 Section 16A(2) requires that the court when imposing a penalty take into account amongst other things,:
"(m) the character, antecedents, cultural background, age, means and physical or mental condition of the person; …."
20 Owen J has set out in his reasons that so far as is known, the applicant:
(a) is 37 years of age. He comes from a traditional Spanish village and is married with three young dependent children;
(b) customarily earns US$38,000 per annum;
(c) during the period of his detention lost wages of US$4,000 and was forced to borrow US$10,000 to support his family.
(Page 9)
- (d) has an apartment in a Spanish fishing village on which he owes $140,000.
21 Having in mind:
(1) the provisions of the Crimes Act which are set out above and that nothing in s 16C prevents a court from imposing a fine on a person because the financial circumstances of the offender cannot be ascertained by the court;
(2) the finding of the learned Judge that:
"Notwithstanding the seriousness of the conduct involved, the personal circumstances of the offender are such that he clearly would not appear to have much capacity within his own private assets to pay a large fine."
(3) the utmost seriousness of the offences committed by the applicant,
- and doing the best I can in all the circumstances, I would allow the appeal and in agreement with Owen J would impose fines on the applicant of $4000 for each separate offence. The total of the fines would thus be $24,000.
22 In fixing the sum of $4000 as the fine for each offence, I have had regard to the difficulties which the applicant could have in finding a greater sum than the total of $24,000 whilst trying to provide adequate financial support for his wife and children.
23 OWEN J: This is an application for leave to appeal against sentence, being fines totalling $100,000 imposed by a Judge of the District Court on the Captain of a fishing vessel for six charges of offences against s 100 and s 101 of the Fisheries Management Act 1991 (Cth) ("the Act").
Background
24 The applicant is a Spanish national aged 37 years. He is a Fishing Master, having worked his way through the ranks of the fishing industry since he left school. From October 1997 until February 1998 he was the Fishing Master for a vessel called Big Star. It is an ocean-going vessel flagged in the Seychelles and owned by a Seychelles company called Big Star International Corporation ("the owner").
(Page 10)
25 The facts were related to the learned sentencing Judge at some length by the Crown prosecutor. They appear at 67 - 87 of the appeal book. Counsel for the applicant took no exception to the version of the facts so related, except in two respects. One related to whether the Big Star was equipped with systems to minimise the risk of sea birds being damaged by the fishing operations. This is of no materiality in the disposition of the application for leave to appeal, and I need not refer to it again. The other matter relates to the value attributed to the vessel for sentencing purposes. Again, this is not a matter that is material to the appeal process. I will not relate the facts in any detail. What follows is a summary that will suffice for the purposes of this application.
26 Late in 1997, the owner directed the applicant to fish in an area around Heard, McDonald and Kerguelen Islands. On 21 February 1998, HMAS Newcastle apprehended Big Star about 114 nautical miles from Heard Island. At the time the vessel was about 8 nautical miles inside the border of the Australian Fishing Zone. The applicant was the Master of Big Star at the time. Inspection by naval personnel and fisheries officers uncovered evidence that the vessel had been engaged in fishing for, and processing of, Patagonian toothfish. By reference to the vessel's log book, the officers were able to assess when the vessel had been fishing in Australian waters. Fishing in the Australian Fishing Zone, and especially fishing for the Patagonian toothfish, is strictly controlled in accordance with international treaties and Australian Fisheries Management Plans established under Commonwealth legislation.
27 The applicant was charged with three counts of using a foreign boat for commercial fishing without a foreign fishing licence, contrary to s 100(1) and s 100(2) of the Act. Each count related to a distinct period of fishing - first, from 27 December 1997 to 3 January 1998; secondly, from 27 January 1998 to 5 February 1998; and thirdly, from 9 February 1998 until 21 February 1998. In the first period, the catch was 70,940 cgs valued at $292,000. In the second period, about 67,165 cgs of fish were taken and, in the third period, the catch was 66,485 cgs. When the vessel was apprehended, the value of the fish on board was put at $612,556. In relation to each of those periods, the applicant was also charged with one count of having in his charge a foreign boat equipped for fishing and without the use or presence of the boat being authorised by an appropriate licence or permit contrary to s 101(1) and s 101(2) of the Act.
28 Upon its apprehension, Big Star and its crew were taken to Fremantle. The vessel arrived in Fremantle on 4 March 1998. On the following day, the applicant was interviewed by fisheries officers but, on
(Page 11)
- legal advice, refused to provide any information. He was charged and released on bail, but on condition that he stay on the vessel at night. During the day he could only leave the vessel with the permission of fisheries officers.
29 In accordance with international treaty obligations, it was agreed that the vessel, its crew, catch and equipment would be released on payment of an agreed amount by way of security. The fisheries authorities and the owner negotiated for some time. Eventually, an accommodation was reached. On 14 May 1998, the owner executed security documents. On that day, after the terms of the applicant's bail were varied so as to allow him to leave Australia, the vessel sailed out of Fremantle. The applicant returned to Perth voluntarily to appear at the sentencing hearing.
The Security Arrangements
30 To appreciate the significance of the security arrangements, it is necessary to refer to s 88(1) of the Act:
"Where any property is under the control of an officer because of the exercise by an officer of powers under section 84, AFMA may direct that the property be released:
(a) in the case of a boat - to the owner or the master of the boat; and
(b) in any other case - to the owner of the property or to the person from whose possession the property was seized, or from whose control the property was removed;
on such conditions (if any) as AFMA thinks fit, including conditions as to the giving of security for payment of the value of the property if it is forfeited and for the payment of any fines that may be imposed under this Act in respect of offences that AFMA has reason to believe have been committed with the use of, or in relation to, that property."
31 There were two security deeds (or, perhaps more accurately, deeds poll) executed by the owner. One of the terms of the release of the vessel was that it be equipped with a monitoring device so as to ensure that it did not return to Australian waters. The owner put up security of $100,000 to abide any failure properly to operate the monitoring system in the period before completion of the court proceedings.
(Page 12)
32 The other deed is more directly relevant to this application. For that reason I will set out in full the relevant portions. I will omit Sch A and the attachments. It is addressed to the Commonwealth of Australia (called "the Commonwealth") by the owner. It provides:
"RECITALS:
A. Whereas the vessel known as [Big Star] ('Vessel') is under the control of an officer within the meaning of that term in the Fisheries Management Act 1991 (Cwth) and charges have been laid under sections 100 and 101 of the Fisheries Management Act 1991 (Cwth) against [the applicant].
B. Pursuant to section 88 of the Fisheries Management Act 1991 (Cwth) the Australian Fisheries Management Authority ('AFMA') may direct that a boat and property be released to the owner of the boat and property on such conditions as AFMA thinks fit.
C. AFMA has agreed to release to the Owner the Vessel and the Fishing Equipment and Catch on board the Vessel on condition that the Owner give a security for A$1,350,000.00 for possible forfeiture orders and fines that may be imposed by a court in relation to the Charges and a security of A$100,000.00 to ensure the operation of a Vessel Monitoring System on board the Vessel until completion of all legal proceedings relating to the Charges.
NOW THEREFORE:
1. The Owners asks the Commonwealth, represented by the Australian Government Solicitor, to accept the sum of One Million Three Hundred and Fifty Thousand Australian Dollars (A$1,350,000.00) as security for the release of the Vessel, the Fishing Equipment and the Catch described in Schedule A to this security to the Owner.
(Page 13)
- 2. In the event that:
(a) [the applicant] is convicted of an offence under section 100 and/or section 101 of the Fisheries Management Act 1991 (Cwth); and
(b) A court makes the order or orders specified in column 1 of Schedule B to this security AND the Owner fails to comply with the corresponding conditions specified in column 2 of Schedule B.
the Owner agrees that the Commonwealth may retain the corresponding amount or amounts specified in column 3 of Schedule B without reference to the Owner, from the security of One Million Three Hundred and Fifty Thousand Australian Dollars (A$1,350,000.00) deposited with the Australian Government Solicitor.
3. In the event that:
(a) [the applicant] fails to appear at the time and place specified by a court for the hearing of the charges laid against him under section 100 and/or section 101 of the Fisheries Management Act 1991 (Cwth) ('Charges') unless a court has excused him from that appearance;
(b) if the court declines to set a hearing date for the Charges because of the failure of [the applicant] to appear at a return date or a mention date for the Charges:
(c) if a Warrant is issued for the arrest of [the applicant] by reason of his failure to attend a return date or a mention date; or
(d) [the applicant] fails to appear on any occasion to which he has been bailed to appear unless a court has excused him from that appearance,
the Owner agrees that the Commonwealth may retain the security of One Million Three Hundred and Fifty Thousand Australian Dollars (A$1,350,000.00) deposited with the Australian Government Solicitor.
(Page 14)
- 4. … "
33 Schedule B is in this form:
Column 1 | Column 2 | Column 3 |
|
|
|
|
|
|
|
|
|
|
|
|
- Note: Item 4 - if a fine is imposed by the court and not paid by the owner the fine will be deducted from the security money and paid by the Australian Government Solicitor to the court on behalf of the owner.
(Page 15)
34 Schedule A describes the vessel and itemises the fishing equipment and the catch. It also ascribes a value of $494,334 to the vessel, $43,100 to the fishing equipment and $612,556 to the catch. The total valuation is, therefore, $1,150,000.
The Applicant's Personal Circumstances
35 The applicant is, as I have already said, a Spanish national aged 37 years. He comes from a traditional Spanish village where almost everyone is involved in the fishing industry. He is married with three young dependent children. He was earning approximately US$38,000 in his employment with the owner. In the period when he was detained in Fremantle, he lost wages of approximately US$4,000 and was forced to borrow about US$10,000 from the owner to support his family. The applicant was said to own a small apartment in his home village. There was no evidence as to its value, but it seems that the applicant owed about $140,000 on it.
36 At the sentencing hearing, counsel for the applicant put forward the following matters (which I will amplify slightly in some instances) as mitigating factors.
1. He did not instigate the commission of the offences and acted under the directions of the owners as to the general area to fish. Jobs of the type engaged in by the applicant are difficult to come by in Europe because of the overcapacity of the fleet and the lack of local fishing grounds. His desire to make sure that he did not do anything to fall foul of his employers led him to a position where he was effectively obliged to fish where he was asked to.
2. He submitted quietly to arrest and was well behaved and co-operative in the period of his detention. During the period he was detained on board, the vessel conditions were very poor. It was hot and the ventilation was not efficient. There was considerable unrest and hostility among the crew.
3. The offences were not embarked on with any knowledge of the seriousness of the offences or the personal risk and consequences of committing the offences.
4. He had no prior record and it was unlikely he would offend again.
5. He had pleaded guilty and co-operated with Australian authorities to save costs.
(Page 16)
- 6. There were serious financial consequences for him and his dependants.
7. He had met consequences at the hands of his employers, namely, being charged with criminal offences in a foreign country, being detained on the vessel for 53 days and being deprived of significant wages. He would have to repay the monies he borrowed from the owner to support his family.
8. This incident and the convictions will have a negative impact on his employment record. Consequently it will be more difficult for him to obtain employment with other shipowners.
9. He and the rest of the crew had been detained for 53 days, a period well in excess of the 10 day period considered reasonable under international law.
10. Whilst the protection of the Patagonian toothfish and marine ecology are important, the offences in this case were not in the same category as offences involving more endangered forms of marine life. The lines are laid at night to avoid hooking seabirds, and large hooks are used to prevent catching young fish.
The Sentence Imposed
37 The sentencing Judge commenced by examining the history of the Australian Fishing Zone and the development of the fisheries plan for the Patagonian toothfish. He went on to consider the facts surrounding the offences and the apprehension of the vessel. His Honour noted that the maximum penalty for these offences, as set out in s 100(2) and s 101(2), was a fine not exceeding $275,000. This, he said, was "a clear indication of the seriousness with which conduct of this kind is to be regarded". His Honour then enunciated several factors that justified a conclusion that this was a particularly serious case and was "deserving of a substantial punishment … a large fine is warranted". Save for the conclusion about the size of the fine, I do not think anything contentious arises out of what was there said.
38 His Honour then turned to matters personal to the applicant. I think it is fair to say that, with a couple of exceptions, his Honour accepted the submissions as to mitigating factors that counsel had put to him. He did express some caution about the submission that the applicant had not appreciated the seriousness of his conduct. His Honour also pointed out that, when first apprehended, the applicant had hidden the log book and lied about the activities. To that extent, the submission concerning the
(Page 17)
- applicant's co-operation with authorities must be tempered. Having considered those personal factors, his Honour said:
"Thus far, the matters to which I have referred could be said to indicate that a fine of small proportions is appropriate. Notwithstanding the seriousness of the conduct involved, the personal circumstances of the offender are such that he clearly would not appear to have much capacity within his own private assets to pay a large fine. However, on behalf of the Commonwealth it has been pointed out that the owner of the Big Star, the offender's employer, has entered into a deed to secure payment of any fine which might be imposed in respect of the charges, up to a maximum of $200,000.
Senior counsel for the offender has submitted that that is not a matter that I can take into account but, after some consideration, I have come to the conclusion that that view should be rejected. In my opinion, it is a relevant consideration that the security exists especially when it is a security provided by the owner itself who I was told by counsel, who appeared for it as well as for the offender, directed the offender to commit these offences.
Section 88 of the Fisheries Management Act clearly authorises the security, and its existence is I think a matter to take into account in the light of the provisions of section 16C(i) [sic] of the Crimes Act as well as in the light of the provisions of section 16A. These offences were, to some extent, I accept part of a continuing course of conduct but at least two separate fishing expeditions were involved. I also accept that there was an overlap of criminality and, against this background, I think that it would be appropriate to impose one total fine apportioned between counts 1 and 2 on the indictment and another total fine apportioned between the remainder of the counts.
In my view, in all the circumstances, a total fine of $50,000 in respect of counts 1 and 2 is appropriate and, as I have indicated, the offender is therefore fined $25,000 in respect of each of those counts. I am also of the view that a fine of $50,000 is appropriate in respect of the remaining four counts on the indictment, and the offender is therefore fined $12,500 in respect of each of them."
(Page 18)
39 Finally, the sentencing Judge considered whether he should order forfeiture of the vessel, the fishing equipment and the catch. He decided that he should do so. The applicant was given 28 days within which to pay the fine. It was common ground that the vessel, fishing equipment and catch were not delivered to the Commonwealth within 30 days and the fine was not paid within 28 days, as required by Sch B of the Deed Poll. The result of all this was that the Commonwealth received $494,334 in lieu of delivery of the vessel, $43,100 on account of the fishing equipment, $612,566 for the catch and $100,000 as the amount of the fine. This came to a total of $1,250,000. It all came from the monies paid by the owner under the security arrangement. I presume the remaining $100,000 was refunded to the owner.
40 There was no evidence before the sentencing Judge as to the arrangements, if any, between the applicant and the owner concerning payment of the fine from the secured funds and repayment by the applicant of the amount so deducted.
The Grounds of Appeal
41 No issue is taken as to the making of the forfeiture order. The argument is purely and simply whether the fines totalling $100,000 are manifestly excessive in all of the circumstances. In the grounds of appeal, the applicant contends that they are and that the sentencing Judge erred:
(a) by failing to give due weight to the applicant's personal and financial circumstances;
(b) by imposing fines that were, on the material before him, beyond the means and resources of the applicant; and
(c) in sentencing the applicant on the basis that it was a relevant consideration that money not belonging to the applicant was held by the Commonwealth and might be used to satisfy the fine imposed.
42 I think the sentencing Judge was of the view that the fine would probably be paid out of the secured fund. Indeed, I think it is open to draw the inference that the parties always contemplated that, if there were to be a fine imposed and a forfeiture order made, the Commonwealth would have resort to the moneys paid under the security arrangement. This is not to say that there was no arrangement between the applicant and the owner as to repayment by the applicant of the amount attributed to the fine. There was simply no evidence on that issue.
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43 There are two things that appear to me to emerge clearly from the materials. First, his Honour had decided to impose "a large fine". Secondly, his Honour recognised that the applicant "would not appear to have much capacity within his private assets to pay a large fine". Accordingly, there is some force in the underlying assertions in the first two grounds of appeal that the sentencing Judge proceeded on the basis outlined. However, the question is whether, in so doing, his Honour erred in a way that now requires this Court to intervene.
44 I think the issue comes down to a narrow question: Can a sentencing Judge impose a fine without taking into account the financial means of the offender to pay it where a third party has already put up money to cover the amount likely to be ordered?
The Nature of a Fine in the Sentencing Process
45 The nature of a fine and the place that it holds in the sentencing process must be borne clearly in mind. In that respect, I refer to the comments of Malcolm CJ in Sgroi v The Queen (1989) 40 A Crim R 197 at 200 - 201:
"The purpose of a fine is primarily to punish the offender. Consequently, the amount of the fine must be such as will constitute an appropriate punishment having regard to the offender's capacity to pay. Thus, the amount and method of payment of the fine will need to take into account, as far as practicable, the financial resources and income of the offender and the nature of the burden that its payment will impose. The approach to be adopted in the case of a fine has been considered by this Court in Cobby (unreported, Court of Criminal Appeal, WA, Wickham, Wallace and Pidgeon JJ, No 19 of 1983, 19 April 1983). Wickham, Wallace and Pidgeon JJ said:
'There can be a number of difficulties associated with a fine; for example: courts should avoid giving the impression that a rich person can purchase absolution from a crime for cash or that a poor person can do so by instalments. It is also the case that a fine may be effectively greater punishment upon a poor person that upon a rich person. Further in the case of joint offences it would not seem right to fine a rich person more than a poor person when the circumstances are much the same and neither would it seem right to fine a rich person less simply because the poor person could not pay
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- more. There is also the danger than an offender may be tempted to commit another offence in order to raise the money to pay the fine. These are only some of the difficulties which might arise. We mention them merely to indicate that the opinion which we have expressed must necessarily be tempered to the circumstances of the particular case.
Where the fine is appropriate it should not be used merely as a soft option but should have some real sting in it from the point of view of the offender and be sufficiently punitive to act as a general deterrent.'
- This statement was approved in Loughman (unreported, Court of Criminal Appeal, WA, No 37 of 1983, 23 June 1983) and followed in Middleton (unreported, Court of Criminal Appeal, WA, No 1 of 1989, 21 March 1989).
The question whether the amount of a fine is within the range of a sound discretionary judgment is to be determined in the same manner and the same question when asked with respect to a sentence of imprisonment, save that in the case of a fine considerations of the offender's financial means of capacity are relevant in determining the amount of a fine which will constitute a punishment proportionate to the gravity of the offence in the light of the circumstances under which it was committed, the antecedents of the offender and, where appropriate the objective of general deterrence."
46 There is ample judicial support for the proposition that contraventions of the Act need to be taken very seriously: see, for example, Cheatley v The Queen (1972) 127 CLR 291 at 296; Chiou Yaou Fa v Morris (1987) 87 FLR 36 at 63 - 64; Re Director of Public Prosecutions, Ex parte Lawler (1994) 179 CLR 270 at 295. In addition, there was ample evidence to justify the sentencing Judge's finding that this was a serious case. That finding is not now under challenge. Accordingly, the starting point had to be a fine that would contain a "sting". But it still remains open to question whether an approach which effectively ignores the means of the offender to pay the fine is a proper exercise of the sentencing function.
47 Quite clearly, the general rule is that a fine should not be imposed without an assessment of the means of the offender to pay it, and should
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- not be imposed where the offender has no means to pay. I have already referred to Sgroi in this respect. See also Flego v Lanham (1983) 32 SASR 361 at 366; Fry v Bassett (1986) 85 FLR 334 at 336; Rahme v The Queen (1989) 43 A Crim R 81 at 86. The same general principle has statutory recognition, at least in so far as it relates to an inquiry concerning the means of the offender: Crimes Act 1914 (Cth), s 16A(2)(m) and s 16C(1).
48 Counsel for the Crown submitted that the proper approach was to have regard first to the gravity of the offence and then to move on to consider whether it could be paid and, if not, whether it should be reduced according to the means of the offender. This, counsel submitted, is exactly what the sentencing Judge did. Counsel for the Crown conceded that it would never be appropriate to increase the amount of a fine over and above the level that the gravity of the offending conduct required because, for example, the offender was wealthy and could easily meet the impost. However, that was not the case here. The true question was, having arrived at the level of fine appropriate to the gravity of the offending conduct, should the sentencing Judge have reduced it because of the applicant's limited means?
49 Counsel for the Crown submitted that there were three basic reasons why a fine should not be imposed beyond the capacity of an offender to pay. First, it could be, in effect, imposing a sentence of imprisonment where imprisonment is not otherwise appropriate. Secondly, to impose a fine where there is no possibility of the fine being paid is to act with futility, and courts are not in the habit of acting in a futile way. Thirdly, in circumstances where it is known that a third party will pay the fine, it does not act as a deterrent. Counsel submitted that none of these policy considerations applied in this case.
50 In my view, the first two of those factors are undoubtedly absent in the circumstances of this case. The existence of the security fund made it certain that a fine, if imposed, would be paid. It does not matter, for the purposes of these factors, that the fine would be paid from a fund established by the owner rather than directly from the resources of the applicant. The fact is that regardless of the size of the fine, assuming that it did not exceed $200,000 in total (and if I could add a gratuitous comment, a fine in excess of that amount would have had little chance of surviving the appellate process), it was going to be paid. Accordingly, in the circumstances of this case, no question of futility arises, and nor could it be seen as a "back door" means of achieving a custodial sentence. But the third factor raises some difficult issues.
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51 The basis for the proposition implicit in the third factor is that a fine imposed on an offender, but paid by a third party, neither punishes nor deters: R v Repacholi v R (1990) 52 A Crim R 49 , at 52. In Hinch v Attorney General [1987] VR 721, a case involving contempt of court by a media commentator, Young CJ said, at 731, that it was "wrong in principle to fix the amount of a fine upon the assumption that it will be met by someone other than the offender" and that "before fixing a fine in the ordinary criminal jurisdiction, a court is required to take into account the circumstances of the offender". However, his Honour went on to acknowledge that these were general sentencing principles and that general provisions relating to sentencing should not, unless expressly stated, be treated as applicable to sentencing for punishable contempts of court. Young CJ also acknowledged that there may be cases where the question who is to pay the fine can be a relevant consideration, citing Gallagher v Durack (1983) 45 ALR 53 , at 56 - 57. The principle that, if a fine is in contemplation, the fact that the employer may pay the fine of the employee is irrelevant was accepted by Malcolm CJ in R v Thompson [1989] WAR 219 , at 225. This was also a contempt of court case and Malcolm CJ expressed the principle in reliance on the dicta in Hinch. The general principle against imposing a fine on the basis that a third party will pay it is also taken up in Fraser v R (1985) 63 ALR 103 , at 111, but again recognising there could be exceptions.
52 I cannot, therefore, accept the proposition advanced on behalf of the applicant that a fine imposed and calculated on the assumption that the offender's employer would probably pay it will, of itself, involve an irregularity in the exercise of the sentencing discretion. What can be said, based on the authorities, is that this will generally be so, but each case must be examined according to its own facts and circumstances.
53 Counsel for the Crown referred to Repacholi to support the proposition that the fact that a fine might be paid by a third party did not necessarily rob the sentence of deterrent effect. In Repacholi, at 52, Malcolm CJ recognised the general principle and referred to the media contempt cases. However, his Honour then contrasted the media contempt cases with those where the evidence suggested that an offender may have access to funds provided by family members to pay the fine. His Honour said:
"In this case, the family relationships within the family of which the respondent was a member and which was the apparent source of funds for payment of the fine, were such that it was likely to place the respondent under a substantial obligation to
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- the family. In these circumstances, I do not accept the argument that the payment of the fine was not a punishment and had no deterrent effect."
54 I think, therefore, that what counsel for the Crown said is right: The mere fact that the fine will probably be paid by a third party does not, of itself, rob the sentence of its necessary deterrent effect. However, there is a sting in the tail in relation to that argument. It assumes that the offender, in this case the applicant, would assume some responsibility for repayment of the amount concerned to the third party, in this case the owner. It may be one thing, in the absence of direct evidence, to draw that inference in a domestic situation where the payer was not involved in any way in the offender's criminal conduct. But does the same apply where the payer was a guiding hand in the scheme or endeavour which eventually lead to the offender incurring the fine? If the arrangements between the vessel owner and the Master were such that the owner would assume responsibility for the fine without recourse to the Master, then the argument that a fine neither punishes or deters would hold good. But what if the vessel owner can have recourse to the Master? It may be recourse which makes the Master immediately liable for the whole of the amount, or it may reflect in repayment on an instalment basis. If the former, it would certainly affect the Master's ability to repay and would then be a relevant consideration in the sentencing process.
55 All of this leads me to the conclusion that an examination of the means and circumstances of the applicant was a matter of real substance in this case. It was an examination which, it seems to me, was never fully conducted.
56 Counsel for the Crown submitted that the approach taken by the sentencing Judge gave full weight and effect to the public policy considerations underlying the Act. I wonder whether that is so. I will accept, for the purposes of this exercise, that the owner was the guiding hand behind this entire endeavour and the applicant, albeit knowingly and willingly, was acting in accordance with directions given. I accept without question the importance of the policy considerations behind the Act, which recognise the essentiality and difficulty of preserving the ecology of the area, of policing the policy, of establishing a sustainable and economically viable fishing industry and generally of preserving the integrity of the national interest in all its forms. But regard must also be had to the fact that it is the applicant, not the owner, who has committed the offences against s 100(1) and s 101(1) of the Act. The owner may have been a party to those offences, looked at in accordance with
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- conventional criminal law principles; but, for obvious jurisdictional and other practical reasons, no such charges were laid.
57 If it is the applicant who committed the offences, then it is upon the applicant that the sentence must be imposed. Section 16C(1) of the Crimes Act requires (and it is in mandatory terms) that, before imposing a fine, the court must take into account the financial circumstances of the offender. That, it seems to me, carries with it the implicit recognition of the common law principle that a fine should not be imposed in excess of the offender's ability to pay. It has long been recognised that if the legislature wishes to alter the common law, which it is quite at liberty to do, it must do so expressly and unambiguously. In this respect, counsel for the Crown pointed to the wording of s 88(1) of the Act, which expressly provides that AFMA may, as a condition for release of the boat, require that security be given for, among other things, "the payment of any fines that may be imposed under this Act". International treaty obligations require AFMA to negotiate for release of the vessel. What s 88 does is authorise the AFMA to require that security be given before the vessel is released. In so doing, AFMA may stipulate that the security include an allowance for fines. It seems to me that s 88(1) is not directed to the calculation of the fine which might eventually be imposed. It is for the court, not AFMA, to assess the appropriate financial impost to be ordered in the circumstances of the case. I cannot discern from it a legislative intent to alter the common law principle that has been recognised in s 16C(1) of the Crimes Act.
58 There is no doubt that deterrence is an important factor in crimes of this nature. However, in the peculiar circumstances contemplated by the Act, I think it is necessary to have regard to all of the powers conferred on the court when imposing sentence. This includes the power, conferred by s 106, to order forfeiture of assets of considerable significance. Generally speaking, they will be assets of some person or entity other than the Master. Even though it is the Master, rather than the vessel owner, who is indicted, the powers conferred on the court are directed very much at the vessel owner as well as the Master. That is what the sentencing Judge did here. He ordered forfeiture of assets with an agreed value (leaving to one side the dispute aired at the sentencing hearing about the value of the boat) totalling $1,250,00. He also imposed fines totalling $100,000. The order for forfeiture of the assets is to be seen against the background of the criminal conduct resulting in the laying of the charges and is therefore part of the penalty for the offences with which the applicant was charged: Cheatley, at 299. Looked at in this way, the deterrent effect of the orders made by the sentencing Judge were adequate in so far as they sent a
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- message to owners of foreign fishing vessels. The deterrent effect of the fine, as a discrete part of the orders made by the sentencing Judge, fall to be considered against that background. This is not to say that the fine imposed on the Master is irrelevant for these purposes. The contrary is the case, but it cannot be divorced from its overall circumstances.
59 I am prepared to accept that fines totalling $100,000 were appropriate to reflect the gravity and criminality of the applicant's conduct. What seems to have happened is that there was a recognition that the applicant could not pay, but that it did not matter because the owner could, and had provided means to ensure that it would do so. In my opinion, there was no proper or sufficiently comprehensive investigation as to the applicant's means or his ability to pay so as to ascertain whether a fine of some lesser amount would better accord with justice. That is an investigation which is required by the terms of s 16C to be carried out. There is a danger that this approach might be regarded as assessing the amount of the fine in accordance with the ability of the owner to pay, rather than the means of applicant to do so. I think it is simply too difficult to draw the inferences that were drawn in Repacholi as to the likelihood of the applicant undertaking some commitment to the owner in relation to repayment that would be manageable so far as concerns his capacity to pay. If that inference cannot be drawn, I think it makes an examination of the applicant's financial circumstances even more important.
60 I recognise that in one sense the applicant was the author of his own misfortune in this respect. It was the applicant, not the Crown, who had the information concerning his circumstances, and the arrangements, if any, for repayment of any fine satisfied from the secured fund. However, I am left with the feeling that the Court sentencing exercise proceeded on a wrong principle and that the discretion miscarried.
61 I wish to canvass one other point before turning to the disposition of this application. It concerns the submission made by counsel for the applicant that the sentence was out of kilter with sentences imposed in similar cases. I have said on many occasions that I seldom find this exercise helpful. In his written submissions, counsel for the applicant listed 11 previous cases involving offences of a similar type, in all of which the Master had been fined an amount considerably less than $100,000. But, as counsel for the Crown pointed out, the facts can differ widely from case to case. Here, the vessel was making its third foray into the Australian Fishing Zone in two separate fishing expeditions over a lengthy period. That may not have been so in all or any of the other cases.
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Some of the previous offences were dealt with summarily or under prior legislation, where the maximum fine was much less than $250,000.
Conclusion
62 I would grant leave to appeal and allow the appeal. This means that the applicant falls to be resentenced. It is a difficult exercise.
63 The applicant committed six offences that are of a serious nature and where the level of criminality was high. For purposes of sentencing, I am prepared to accept, and give weight to, the mitigating factors put forward by counsel for the applicant and outlined above. They have to be tempered to the extent that they were not accepted by the sentencing Judge. Accordingly, the plea that he co-operated with authorities is subject to reservation. So, too, is the contention that he did not appreciate the seriousness of his conduct.
64 So far as concerns his financial circumstances, this Court does not have much to go on. All that can be said is that the applicant:
(a) has an apartment in a Spanish fishing village on which he owes $140,000;
(b) customarily earns US$38,000 (approximately A$57,000) per annum;
(c) lost wages of US$4,000 and was forced to borrow US$10,000 to support his family during the period of his detention.
65 The fine must have a "sting". It must be proportional to the gravity of the offending conduct, but must take into account the limited means of the offender to pay. It must contain a deterrent element, although, in that regard, I think it is legitimate to look at the whole of the circumstances and consider the impact of all of the orders made as part of the sentencing process. I think the appropriate fine is $24,000 in total. I would apportion it as to $4,000 to each of the six counts.
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