Strachan v Brown - [2000] TASSC 142

[2000] TASSC 142

CITATION: Strachan v Brown and Visser [2000] TASSC 142

PARTIES:  STRACHAN, David Campbell
  v
  BROWN, Graeme Maxwell

VISSER, Claas

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 40/2000
DELIVERED ON:  11 October 2000
DELIVERED AT:  Hobart
HEARING DATES:  4 October 2000
JUDGMENT OF:  Underwood J

CATCHWORDS:
Primary Industry - Fish - Offences - Other cases - Special penalty - Special penalty attaches to the fish taken or possessed, not to the offences in respect of such taking or possession.

Living Marine Resources Management Act 1995 (Tas), s267.
Munday v Brown (1996) 6 Tas R 364, distinguished.
Ferraro v Glover (1989) 51 SASR 559, followed.
Aust Dig Primary Industry [35]

Criminal Law - General matters - Criminal liability and capacity - Double jeopardy - Only arises where the elements of the offences charged are identical, or all the elements of one offence charged are wholly included in another.

Fisheries (Abalone) Rules 2000 (Tas), rr11, 17(1)(a), (c), 20(1)(a) and 21(a).
Wood v Major A49/1992, discussed.
Pearce v R (1998) 103 A Crim R 372, applied.
Aust Dig Criminal Law [68.5]

REPRESENTATION:

Counsel:
             Applicant:  T L McDermott
             Respondents:  F C Neasey
Solicitors:
             Applicant:  T L McDermott
             Respondents:  Director of Public Prosecutions

Judgment Number: [2000] TASSC 142
Number of Paragraphs: 34

Serial No 142/2000
File No LCA 40/2000

DAVID CAMPBELL STRACHAN v
GRAEME MAXWELL BROWN and CLAAS VISSER

REASONS FOR JUDGMENT UNDERWOOD J

11 October 2000

The applicant pleaded guilty to, and was convicted of the following matters of complaint:

· Three counts of failing to comply with a Control Order within the meaning of the Living Marine Resources Management Act 1995 ("the Act"), s3, contrary to the Act, s253(2). These offences were committed on 15 January and 5 and 12 March 2000.
· One count of taking 2,436 abalone when not the holder of a relevant licence contrary to the Fisheries (Abalone) Rules 2000 ("the Rules"), r11.
· Possessing more than 20 abalone when not the holder of appropriate documentation, contrary to the Rules, r17(1)(c).
· One count of possessing, while on a vessel, 2,433 abalone that had been detached from their shells, contrary to the Rules, r20(1)(a).
· Possession of 704 underweight abalone meats, contrary to the Rules, r21(a).
· Hindering police and fisheries officers, contrary to the Act, s203(b).

The last five offences were all committed on 12 March 2000.

The offences were charged on a number of complaints, but the learned magistrate imposed a global penalty as he was empowered to do by the Sentencing Act 1997, s11. The orders made with respect to all matters of complaint were:

·   Two years and three months' imprisonment to commence on 12 March 2000.
·   A fine of $7,000 (with respect to this, the learned magistrate said "five thousand ($5,000) of which I attribute to a [sic] hindering charge").
·   Special penalties, $386,143.82.
·   Costs in the sum of $132.10.
·   Defined special penalties and costs to be paid at the rate of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Strachan v Brown

Details

AGLC: Strachan v Brown and Visser [2000] TASSC 142
Case: [2000] TASSC 142
Decision Date: 11 October 2000

CaseChat Overview and Summary

The applicant, David Campbell Strachan, was convicted in the Magistrates Court of multiple offences under the Living Marine Resources Management Act 1995 and the Fisheries (Abalone) Rules 2000, including taking abalone without a licence, possessing abalone without appropriate documentation, possessing underweight abalone meats, possessing detached abalone on a vessel, and hindering police and fisheries officers. Strachan appealed the global penalty of imprisonment, fines, and special penalties imposed by the Magistrate, arguing that the penalties were invalid and that the Magistrate erred in law by imposing a sentence for multiple breaches of the Rules. The central legal issues were whether the penalties of imprisonment were valid, whether the special penalty should be imposed for each offence or the catch, and whether multiple convictions for breaches of the Rules constituted a breach of the double jeopardy rule.

The Supreme Court found that the penalties of imprisonment were invalid as there was no statutory authority for such penalties. The Court also held that the special penalty should be imposed with reference to the quantity of fish taken or possessed, regardless of the number of offences committed. Regarding the double jeopardy rule, the Court concluded that the applicant's convictions for multiple breaches of the Rules did not breach the rule, as the elements of the offences were not identical or wholly included in one another.

The Court set aside all penalties and fines, and remitted the matter to the Magistrate for resentencing in accordance with law. The Court also held that the special penalty order should be set aside, and the appropriate way to finalise these matters was to remit them to the Magistrate for resentencing. The Court emphasised that the Magistrate had regard to the totality principle when imposing penalty and that it would not be appropriate to sever the sentence of imprisonment from the fines or the order for payment by instalments from the other orders.

Orders