Smythe v Visser
[2000] TASSC 85
•7 July 2000
[2000] TASSC 85
CITATION: Smythe v Visser [2000] TASSC 85
PARTIES: SMYTHE, Allan David
v
VISSER, Sgt Claas
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 7/1999
DELIVERED ON: 7 July 2000
DELIVERED AT: Launceston
HEARING DATE/S: 24 May 2000
JUDGMENT OF: Crawford J
CATCHWORDS:
Primary Industry - Fish - Offences - Other cases - Failing to record rock lobster catch on each day that fishing occurred - Separate counts in respect of eight days - Fine of $300 on each count - Prescribed minimum $100 and maximum $500 - Whether $300 on each count was manifestly excessive.
Fisheries (Rock Lobster) Rules 1997 (Tas), r68.
Aust Dig Primary Industry [39]
REPRESENTATION:
Counsel:
Applicant: D G Grey
Respondent: P R Sherriff
Solicitors:
Applicant: Zeeman Kable & Page
Respondent: Director of Public Prosecutions
Judgment ID Number: [2000] TASSC 85
Number of paragraphs: 10
Serial No 85/2000
File No LCA 7/1999
DAVID ALLAN SMYTHE v SGT CLAAS VISSER
REASONS FOR JUDGMENT CRAWFORD J
7 July 2000
In a court of petty sessions the applicant pleaded guilty to eight counts of failing to record his rock lobster catch on each day that fishing occurred. The counts respectively related to each of the days from 10 to 17 August 1998. The offence was created by the Fisheries (Rock Lobster) Rules 1997, r68. He was convicted and fined $300 on each count, a total of $2,400 and ordered to pay costs of $35.
He applied to review both the convictions and the fines. The grounds of the motion to review the convictions are firstly that the learned magistrate erred in law when he accepted the pleas of guilty, instead of directing pleas of not guilty, when the facts were that the applicant had maintained a record of his rock lobster catch, and secondly, that the learned magistrate erred in law by not dismissing the complaint because the facts stated by the prosecutor did not disclose an offence under r68. There is no merit in either ground, which was conceded by the applicant's counsel in a letter sent to my Associate since the hearing of the motion.
The sole ground upon which the applicant seeks to review the sentences of $300 on each count is that they were "manifestly excessive in the circumstances in that there was no culpability or little culpability on behalf of the Applicant".
The applicant was the holder of a rock lobster commercial fishing licence. On 18 August 1998 marine police boarded his vessel in the Cape Portland area and conducted a routine inspection. He was fishing for rock lobster. He had in his possession a rock lobster fishery log book in which he was required by r68 to complete the catch record on each day. There were no entries in it for the month of August. He admitted to the police that he had been fishing since 9 August and had not returned to port. He said that he had 161 fish on board and that he had fished every day since 9 August. The learned magistrate was told by the prosecutor that the applicant stated that "he kept a tally in pencil on the inside of his wheelhouse".
On being asked by the learned magistrate why he went to the trouble of keeping a tally in pencil in the wheelhouse instead of recording it in the log book, he responded that there was a new quota system and that it had taken a while to get used to it. He claimed to have made an honest mistake, "but they had been recorded written down in the wheelhouse". He agreed that he had the log book. He said "they were going to be listed in the book". The learned magistrate asked him whether it was his intention to complete the record before coming into port. He responded by saying "I listed them inside the wheelhouse to be copied in the book. But I let it go a too few many days, that is all I can say. … I had full intentions of doing it. Each day I had been recording it but - …".
The learned magistrate commented that "the trouble" was that "a lot of people when apprehended are full of good intentions but really the law usually draws conclusions from the state of facts that exist". Notwithstanding that inference of doubt, his Worship accepted that the applicant was full of good intentions but considered that "there should be a substantial penalty", referring to the requirement to complete the catch record as "part and parcel of the whole scheme designed to protect the fishery by making everybody responsible".
At the time of the offences the applicant was 48 years old. His record of prior offences was not a particularly bad one, although he had committed some offences in relation to fish. In 1970 he sold fish without a fisherman's licence and was fined $100. In 1975 he took undersized crayfish and was fined $100. In 1981 he used an unlicensed fishing boat and took crayfish from prohibited waters (without a licence) and was fined $75 for each offence. In 1992 he used a vessel out of survey and was fined $100.
Counsel agreed before me that the prescribed penalty, if the offence involved less than 10 crayfish, was a fine of not less than $100 and not more than $500, and if the offence involved not less than 10 crayfish the prescribed fine was not less than $200 and not more than $500,000 or a term of imprisonment not exceeding six months, or both. It was not know how many crayfish the applicant had caught on any particular day. He may have caught at least 10 crayfish on each day but he may not have caught as many as 10 on any of the days on which offences were committed. Most of the crayfish in his possession when the police boarded his vessel may have been caught that day, which was not the subject of a charge. It therefore had to be assumed by the learned magistrate that the maximum fine for each offence was $500. The question for me to determine is whether the imposition of a fine of $300 on each count was manifestly excessive in the circumstances in that, according to the ground of review, there was no or little culpability on behalf of the applicant. The applicant's claim that he intended to complete the required record, was accepted by the learned magistrate. His claim to have made an honest mistake can, I think, be safely ignored. He did not claim to have forgotten about completing the record each day. The learned magistrate was entitled to conclude that he was aware of his responsibilities and simply failed to fulfil them.
The purposes of the rock lobster catch record which must be kept by fisherman, is that of management and research. According to what I have now been told by his counsel, the requirement that log books be completed had been in existence for over two years prior to the commission of the offences by the applicant. It was his obligation to complete the record in his capacity as the holder of the relevant fishing licence. He was a commercial operator who ought to have been well aware of his duty to comply with the law's requirements concerning the keeping of records.
The fines were I think $100 higher than I would have imposed in the circumstances of the case and I have been troubled arriving at a determination whether they were manifestly excessive. On balance, I am not persuaded that they were. Magistrates are entrusted by law with a very wide discretion and this Court should only allow an appeal in a case such as this if the sentencing orders were so manifestly excessive that they are only explicable upon the view that the learned magistrate did err in some way. Whittle v McIntyre [1967] Tas SR (NC 6). I find myself unable to come to that conclusion. Accordingly, the motion will be dismissed.
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