Read v Department of Agriculture and Fisheries
[2025] QDC 148
•30 September 2025 (ex tempore)
DISTRICT COURT OF QUEENSLAND
CITATION:
Read v Department of Agriculture and Fisheries [2025] QDC 148
PARTIES:
TROY ROSS READ
(appellant)v DEPARTMENT OF AGRICULTURE AND FISHERIES
(respondent)FILE NO/S:
BD10/25
DIVISION:
Appellate
DELIVERED ON:
30 September 2025 (ex tempore)
DELIVERED AT:
Bundaberg
HEARING DATE:
30 September 2025
JUDGE:
Allen KC DCJ
ORDERS:
1. The appeal is dismissed.
2. The appellant pay the respondent’s costs of the appeal in the sum of $1,800.
CATCHWORDS
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant appeals against sentence pursuant to s 222 of the Justices Act 1886 (Qld) – where the appellant pleaded guilty in the Magistrates Court to an offence of obstructing a Fisheries officer – where the sentencing Magistrate imposed a fine of $3,000 and suspended the appellant’s commercial fisher licence for a period of 12 months – whether the sentencing Magistrate failed to give adequate reasons for suspending the appellant’s commercial fisher licence – whether the sentence is excessive by reason of the suspension of the appellant’s commercial fisher licence
Fisheries Act 1994, s 68B, s 182
Fisheries (General) Regulation 2019, s 65
Justices Act1886, s 222
Penalties and Sentences Act 1992, s 9CEE v CNH [2024] QDC 76
Chakka v Queensland Police Service [2024] QCA 213
Gartner v Brennan [2016] WASC 89
House v The King (1936) 55 CLR 499
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Sun Alliance Insurance Limited v Massoud [1989] VR 8COUNSEL:
S Lynch for the appellant
G Morgan for the respondent
SOLICITORS:
Messenger Legal for the appellant
Department of Primary Industries for the respondent
The appellant was convicted on his plea of guilty and sentenced in the Magistrates Court at Bundaberg, on 26 May 2025, for an offence of obstructing a Fisheries officer, contrary to section 182 of the Fisheries Act1994. He was fined $3,000, a conviction recorded, his commercial fisher licence was suspended for a period of 12 months, and he was ordered to pay costs of the complaint and summons in the sum of $111.70. The appellant has appealed against his sentence pursuant to section 222 of the Justices Act1886.
The appellant was 40 years of age at the time of the offence and held a commercial fisher licence. He operated under a primary commercial fishing licence owned by his father, who conducted a commercial crab-fishing operation in the Bundaberg district.
On 29 May 2024, at about 11.10 am, Fishing Inspector Mr Smith and Queensland Boating and Fisheries Patrol District Officer Mr Nichols were conducting routine patrols on the Elliot River, south of Bundaberg, and observed the appellant landing at the Riverview boat ramp. Having observed that the boat had a number of collapsible crab pots stacked on the floor of the boat, the officers pulled in beside the boat at the boat ramp with the intention of performing a search of the boat and examining crab pots stacked inside of it.
The appellant was hostile and argumentative, it seems because of a perceived lack of action on the part of authorities in relation to persons interfering with his crab pots. Inspector Smith warned the appellant that if his attitude did not improve, he would be obstructing them. He also made a provocative and injudicious comment to the effect that the appellant might find himself on “another holiday”, which did nothing to settle the situation. The inspectors sought to inspect the fishing apparatus on the appellant’s boat.
The statement of facts before the sentencing Magistrate indicates as follows:
Throughout the course of the intercept, the defendant was uncooperative with inspectors. At various stages, he was threatening and aggressive, shouting and using abusive language.
The defendant hindered Inspector Smith’s efforts to examine the fishing apparatus on board FYAF-3. At one stage the defendant pushed the boat away from the inspector, was abusive towards him and threatened to obstruct him (obstruct offence).
Because of a change in the statutory definition prescribing the offence between the time of its commission and the appellant’s sentencing, the prosecution did not seek to rely, as a particular of the obstructing, upon any abusive language by the appellant towards the officers. That was recognised by the learned sentencing Magistrate in remarks I will refer to later.
The appellant had a limited criminal history, consisting of relatively minor drug offences and offences of dishonesty, which does not seem to have played any part in the learned sentencing Magistrate’s determination of penalty. Of more relevance was his previous history of contraventions of the Fisheries Act, which was detailed during the sentence proceedings. It included previous penalties imposed in the Bundaberg Magistrates Court.
On 12 January 2012, the appellant was dealt with for offences against the Fisheries Act, including two charges of obstructing an inspector by dumping crabs and making threats, respectively. For those offences and two other Fisheries offences, he was fined a total of $6,500, and his commercial fisher licence was suspended for two months. On 10 December 2013, the appellant was dealt with for two Fisheries offences, for which he was fined a total of $13,000, and his licence was suspended for a period of four months. On the 21st of August 2021 the appellant was sentenced for numerous fisheries offences, for which he was fined a total of $13,000, and the cumulative licence suspensions for those offences totalled a period of two years.
The prosecutor, at first instance, contended for a fine of $3,000 and a suspension of the appellant’s commercial fisher licence for not less than one year. The appellant’s legal representative, at first instance, conceded the appropriateness of a fine and made no submissions against a recording of a conviction, but submitted that there should be no suspension of the appellant’s commercial fisher licence, in the circumstances, which will be dealt with more fully when considering the submissions on behalf of the appellant on appeal.
The appellant was sentenced on the basis that legislative amendments between the time of the commission of the offence and his sentence meant that the applicable maximum penalty was one of 100 penalty units; that is, $15,481.
Section 182 of the Fisheries Act1994 provided as follows at the date of sentence:
182 Obstructing inspector
(1)A person must not obstruct an inspector in a way that prevents the inspector from exercising a power unless the person has a reasonable excuse.
Maximum penalty – 100 penalty units.
(2)If a person has obstructed an inspector in the way mentioned in subsection (1) and the inspector decides to proceed with the exercise of the power, the inspector must, if practicable, warn the person that –
(a) it is an offence to cause an obstruction unless the person has a reasonable excuse; and
(b) the inspector considers the person’s conduct an obstruction.
(3)In this section –
obstruct includes –
(a) to assault, hinder, resist, abuse or intimidate; and
(b) to attempt or threaten to obstruct.
I have already noted earlier that the definition of “obstruct”, as provided in that provision, had changed from that in force at the time of the offence, and as such, the parties proceeded on the basis that the word “abuse” in section 182(3) was not applicable to the appellant’s offending.
Also relevant to the sentencing and appeal are the terms of section 68B of the Fisheries Act 1994:
68B Suspension or cancellation of authority by court
(1)This section applies if a court convicts the holder of an authority of a serious fisheries offence, whether or not a conviction is recorded.
(2)The court may, in addition to, or instead of, imposing the fine prescribed under this Act for the offence, suspend or cancel the authority.
(3)In acting under subsection (2), the court –
(a) may disregard any third-party interests in the authority; and
(b) must have regard to –
(i)the criteria prescribed by regulation for suspension or cancellation of an authority; and
(ii)the fine the court imposes for the offence.
(4)The court may, if considered appropriate in the circumstances, have regard to any previous conviction of the authority holder under this Act.
The offence of obstructing contrary to section 182 of the Fisheries Act 1994 is a “serious fisheries offence”. The criteria prescribed by regulation for the suspension or cancellation of an authority is found in section 65 of the Fisheries (General) Regulation 2019:
65 Criteria for suspending or cancelling particular licences
(1) This section applies in relation to a primary commercial fishing licence or commercial fisher licence held by a person.
(2) An appropriate period of suspension may be –
(a) for the person’s first conviction – 3 months to 1 year; or
(b) for the person’s second conviction – 6 months to 3 years; or
(c) for the person’s third or later conviction – 1 year to 5 years.
(3) Cancellation of the person’s licence may be appropriate for the person’s third or later conviction.
The provisions of section 65(2)(c) and (3) had potential application to the appellant, given his previous history of contraventions.
The learned sentencing Magistrate recited the facts of the offending, including the initial belligerence on the part of the appellant towards the inspectors, before stating:
I want to make it perfectly clear that I am not sentencing you on the basis of your initial interaction with the officers. What, however, I have seen does provide some context to your subsequent interactions with the officers. I note that you were warned about your attitude and you were warned that you would otherwise be obstructing the officers if your attitude didn’t improve. The officers, it seems, did inspect the fishing apparatus, and through the course of that intercept you were uncooperative, you were belligerent, you were threatening, you were abusive, and you were yelling, and you were shouting.
However, I am overtly mindful that the actual offence that I am dealing with you for is the obstruct, and that you pushed the boat away from Inspector Smith, as is now contained in the amended complaint and summons, and as is – and as particularised at paragraph 6. So the conduct that I am sentencing you for is constituted by you hindering the inspector, as he was attempting to search the boat, and your conduct was pushing the boat away from the inspector and threatening to obstruct him. That is clearly depicted in the body-worn camera footage. The legislation at that time did … define, rather, ‘obstruct’ to include ‘assault’, ‘hinder’, ‘resist’, or ‘attempt’, and later the amendments included the words ‘abuse’ or ‘intimidation’ as elements.
But you are being sentenced with the benefit that your actions on that day, and your language, did not form part of the interaction that I am sentencing you for.
The learned sentencing Magistrate noted the history of proceedings before the court and accepted that the appellant’s plea of guilty was an early one, which would lead to a reduction of penalty.
The learned sentencing Magistrate noted the submissions on behalf of the appellant, including that Officer Smith acted in a contributory way, which might have inflamed the appellant’s passions, stating:
The officer did yell at you, words to the effect, ‘You don’t want another holiday,’ and Mr Messenger has submitted that those officers’ comments were injudicious. Certainly, the officer played a role, but was no doubt heightened due to your initial conduct.
All of that being said, whilst the officer’s comments were unhelpful, perhaps in response to your own aggressive behaviour, none of that discussion has assisted me in determining the actual penalty to be applied to your actions of pushing the boat. It is quite clear that your frustrations were borne out of your crab pots having been raided and your suggestion to put the boat on the trailer not being welcomed by the officer. Mr Messenger previously submitted that this matter is at the lower end of this type of offending on the basis that there was no offending you were trying to conceal, as opposed to the situation, perhaps, in some of the comparators. It has also been, if I have understood his submissions correctly, submitted that your actions did not affect any ecological sustainability.
I do accept that you have suffered, it seems for a long time, with issues of anxiety and depression and anger management, and you take some medication, certainly, for your anxiety and depression. Mr Messenger has conceded that a fine is within range, and he did not wish to be heard with respect to the recording of a conviction. I am told that you do not primarily make a living in the fishing industry, and that some of your income is topped up through Centrelink, and you have the good support of your parents. And what I’ve also been told is that your ability to operate under a licence has assisted in your treatment of anxiety and depression.
It needs to be said that you are a licensed commercial fisherman, and you have come to the attention of authorities a number of times in the past.
The learned sentencing Magistrate then went on to summarise the appellant’s previous convictions for fisheries offences, including by reference to transcripts of the sentencing remarks of Magistrates. They included reference to the sentencing remarks of Magistrate Moloney, who dealt with the appellant in 2021:
In that decision, his Honour Magistrate Moloney gave very comprehensive reasons for sentence, and, in particular, he made reference to medical material and the fact that you had been doing it tough for a number of years and had made some very poor decisions in the context of, at least at one point, you feeling suicidal after a relationship breakdown, and that you had struggled with your mental health, coupled with some illicit drug use.
He did take into account that you had a very supportive family, and he also spent some time considering the purpose of the legislation, and that the purpose was to protect fisheries resources, and, in that instance, his Honour was … persuaded, notwithstanding the potential for financial impact and the loss of your identity, he found that protection of the community did call for a licence suspension.
The learned sentencing Magistrate then went on to note, amongst other things, the purpose of the fisheries legislation and the relevant considerations in section 9 of the Penalties and Sentences Act1992, before stating as follows:
I must balance all of the relevant matters as set out in section 9(1) and (2). That includes your age, the minimum and maximum penalties prescribed for the offence, and how serious the offence was. I have had regard to your history. I have had regard to the comparable sentences which have been provided by the prosecutor, and I have also had regard to the potential impact any suspension would have on you.
The Fisheries Act does allow for the suspension or cancellation of a commercial fishing licence. That’s provided for in section 68B, and that applies to serious fisheries offences, and that section provides that a court may – in addition to or instead of a fine, may suspend or cancel an authority. There is various criteria, which is set out in the Act, which I don’t propose to read in the record – into the record, rather, but I have been persuaded in light of your conviction for this offence, which is a serious fisheries offence, it is open to impose a suspension of your commercial fisher licence, and in those circumstances, you will be suspended from holding or obtaining a commercial fish licence for a period of 12 months.
You will be fined the sum of $3,000, which I will refer to SPER, and having regard to your previous history and your compliance history … a conviction will be recorded. I will also order the costs of issuing the complaint and summons in the sum of $111.70.
The appellant has appealed against sentence, with the ground of appeal being that the sentence was manifestly excessive. The argument as to manifest excess is directed towards the suspension of the appellant’s commercial fisher licence. The appellant has also developed an argument of specific error by reason of the learned sentencing Magistrate failing to give any or any adequate reasons for suspending the appellant’s commercial fisher licence.
Although by way of rehearing, an appeal pursuant to section 222 of the Justices Act 1886 does require a finding of error for an appeal to be allowed. In the context of an appeal against sentence, for an appeal to be allowed requires a finding of error of the type described in House v The King. As stated by Justice Brown in Chakka v Queensland Police Service [2024] QCA 213 at [87]:
The correct construction of section 222(2)(c), having regard to the language used and the context of the provision is that, ‘sole ground that a fine, penalty, forfeiture or punishment was excessive …’ permits appellate intervention where an error in the exercise of the discretion of the kind recognised by House v The King is established, and the error has resulted in a sentence which is excessive.
Justice Brown stated that such construction:
requires an appellant to demonstrate not only that the sentencing discretion has miscarried due to error, but, also, that the resulting sentence is excessive. (at [88])
It is difficult to conceive of an error by way of failure to give adequate reasons that would of itself demonstrate that a sentence is excessive, so as to permit appellate intervention. Perhaps there might be circumstances where such a failure would lead to a conclusion that the sentencing court has failed to have regard to a relevant consideration, so as to constitute House v The King error. Ultimately, however, as recognised by the Court of Appeal in Chakka, the grounds for intervention on appeal will only be established upon the appellate court being satisfied that the sentence is excessive. Nevertheless, it is appropriate that I deal with the parties’ arguments as to the adequacy of her Honour’s reasons for suspending the appellant’s commercial fishing licence.
The appellant cites the statement of McHugh JA, in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279, that without articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. His Honour expressed the view that the requirement of reasons serves at least three purposes: namely, to enable the parties to see which of their arguments had been understood and accepted as forming the basis of a Judge’s decision; secondly, to further judicial accountability; and, thirdly, to enable interested persons to ascertain the basis upon which like cases will probably be decided in the future.
The appellant also cites the Full Court of the Supreme Court of Victoria in Sun Alliance Insurance Limited v Massoud [1989] VR 8 at 18:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if –
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b)justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error, and the losing party is denied knowledge of why his or her case was rejected.
The appellant submits that the learned sentencing Magistrate gave no, or no adequate, reasons for suspending the appellant’s commercial fisher licence, in particular, referring to the above quoted remarks of her Honour to the effect that the Fisheries Act provides for such suspension as part of a penalty, such that it was open to suspend the appellant’s commercial fisher licence, but failed to give reasons why her Honour in fact suspended the commercial fisher licence.
The appellant submits that although her Honour may have mentioned the existence of criteria, her Honour failed to have regard to that criteria in section 68B of the Fisheries Act and, in particular, failed to have regard to the terms of section 68B(3)(b).
The respondent resists a finding of specific error by reason of adequacy of reasons and cites the terms of the judgment of Byrne KC DCJ in CEE v CNH [2024] QDC 76 at [43], citing Gartner v Brennan [2016] WASC 89 at [58]:
The observations of Pritchard J (as her Honour then was) in Gartner v Brennan are apposite, even though the present decision was not delivered ex tempore:
“Many cases have confirmed that magistrates are expected to undertake the work of that busy Court with expedition and with a degree of informality appropriate to the disposition of a large volume of cases. Consequently, appeal courts should not scrutinise the reasons for decision given by magistrates with an eye keenly attuned to the identification of error, and errors should not be inferred from mere infelicities of language. The essential requirement is that the reasons of a magistrate must disclose the underlying intellectual process which has given rise to the conclusions reached. The adequacy of a magistrate’s reasons must be assessed by looking at the reasons as a whole, including not only findings expressly made, but findings to be inferred from the findings expressly made, and having regard to the particular context (including the manner in which the case was conducted and the evidence adduced).” (footnotes omitted)
Byrne KC DCJ then went on to note that such observations do not obviate the need for adequate reasons being provided, but did illustrate why some latitude is appropriately given when critically reading them (at [44]).
Ultimately, when reading her Honour’s reasons as a whole, I do not accept that the appellant has demonstrated error of the type contended.
The learned sentencing Magistrate noted the circumstances of the offending, mitigating factors such as the appellant’s early plea of guilty and his personal circumstances, including mental health issues, and the consequent benefit to him of a licence, including doing so in the context of considering the earlier sentencing remarks of Magistrate Moloney.
Immediately prior to the operative paragraph, the subject of particular criticism by the appellant, as quoted above, her Honour stated, “I have also had regard to the potential impact any suspension would have on you.”
Read fairly, in the context of the whole of the sentencing remarks, her Honour’s remark that it was open to impose a suspension of the appellant’s commercial fisher licence really should be read as a finding that it was appropriate, in all the circumstances, that there be such a suspension. The fact that her Honour chose not to read into the record the relevant criteria for suspension does not lead me to a conclusion that her Honour failed to have regard to such criteria. The contention of specific error is not made out.
That leaves for consideration the sole ground of appeal, which is that the sentence imposed is manifestly excessive.
As submitted at first instance, the appellant contends that a suspension of his commercial fishing licence, in addition to the fine of $3,000, is a manifestly excessive sentence in all the circumstances. Those circumstances include the nature of the obstructing itself, which, essentially, consisted of a bumping of the inspector’s boat away from the appellant’s boat, and, therefore, was minor and momentary; the obstruction did not include any actual assault or attempt to assault the inspectors; it had occurred after one of the officers had goaded the appellant; the obstruction did not occur in the context of the commission of other fisheries offences and no evidence or opportunity to gather evidence was lost as a result of the obstruction. Given the nature of the offence itself, which was at the lowest range of such offending, and the appellant’s mitigating circumstances, including his early plea of guilty, the suspension of the appellant’s licence was not required, and, thus, the sentence was manifestly excessive.
The respondent submits to the contrary, particularly by way of reference to the appellant’s previous convictions for fisheries offences, including two charges of obstruction, and the prior suspensions of the appellant’s commercial fishing licence, the most recent being for a period of two years.
A finding of excessiveness of sentence is not an exercise of the appellate court substituting what it considers might be a more appropriate sentence. For there to be appellate intervention, the appellant must establish House v The King error.
I am not satisfied that the learned sentencing Magistrate failed to take into account any relevant consideration or took into account any irrelevant consideration in determining to suspend the appellant’s commercial fishing licence. Neither am I satisfied, in all the circumstances, that such an outcome, in combination with the fine imposed of $3,000, results in a sentence which is wholly unreasonable or unjust.
The sentence imposed was one which was properly within the exercise of the learned sentencing Magistrate’s discretion. The appellant has failed to demonstrate error on the part of the learned sentencing Magistrate. The sentence imposed is not one which is manifestly excessive. The appeal must be dismissed.
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