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

1. 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).

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

1. 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 $20,000 per year, the first payment to be made 12 months after the applicant's release from prison.

1. At a subsequent hearing, the special penalties were varied from $386,143.82 to $813,498.20.  It appears that there had been some inadvertent mathematical error in the calculation at the time sentence was first imposed.  Nothing turns upon this amendment to the order imposing special penalties which was authorised by the Sentencing Act, s94.

1. The applicant seeks a review of the orders of sentence.  The motion to review contained four grounds of appeal.  Upon the hearing of the motion, counsel for the applicant, Mr McDermott, abandoned the first and third grounds and obtained an order amending the grounds to add the following new ground:

"That the learned Magistrate erred in law in imposing a sentence of 2 years and 3 months as a global sentence because the penalties of imprisonment stipulated in the Fisheries (Penalty) Regulations were invalid, because there was no empowering provision contained in the Living Marine Resources Management Act 1995."

1. Counsel for the respondent, Mr F Neasey, conceded that this ground must succeed. 

1. The Rules provide for penalties by reference to either a "grade 1 penalty", a "grade 2 penalty", or a "grade 3 penalty". The Rules, r3(1) define those words to mean the penalties specified in the Fisheries (Penalty) Regulations 1996 ("the Penalty Regulations").

1. The Penalty Regulations prescribe the penalties for each grade in the case of a first offence, in the case of a second offence and in the case of a third or subsequent offence. The Rules that the applicant contravened each carried a grade 3 penalty. By virtue of the definition in the Penalty Regulations, reg3, these contraventions were second offences and according to reg7(b)(ii), the applicant was liable:

"(ii)   a fine not less than 5 penalty units and not more than 5 000 penalty units or a term of imprisonment not exceeding 12 months, or both …" [emphasis added].

1. The authority to make a regulation imposing penalties for breaches of the Rules is the Act, s285. Subsection (3) provides:

"(3)  The regulations may ¾

(a)provide that a contravention of, or a failure to comply with, any regulations or rules made under Part 3 or 5 is an offence; and

(b)in respect of such an offence, provide for the imposition of a fine not exceeding 5 000 penalty units and, in the case of a continuing offence, a further fine not exceeding 10 penalty units for each day during which the offence continues."

1. Quite clearly, Mr Neasey's concession was appropriate, for there was no statutory authority to make a penalty regulation that provides for imprisonment.  Accordingly, I determine that all penalties of imprisonment contained in the Penalty Regulations are void, being ultra vires the Act.

1. As discussed during the course of the hearing of the motion to review, this determination means that the motion must also succeed.  As the penalties imposed were global penalties, it follows that all the penalties should be set aside.  As I said during the course of the hearing, I have no doubt that the learned magistrate had regard to the totality principle when imposing penalty and accordingly, it would not be appropriate to sever the sentence of imprisonment from the fines.  Similarly, it would not be appropriate to sever the order for payment by instalments from the other orders.  Further, for the reasons that follow, the special penalty order should also be set aside.  Counsel agreed that the appropriate way to finalise these matters was to remit them to the learned magistrate for resentencing in accordance with law.

1. The motion to review, ground 2 raises two matters with which I should deal because they will be material upon the re-sentencing.  The contentions raised by this ground are:

· that upon a proper construction of the Act, s267, the special penalty applied only to the catch ie, to the fish taken and possessed and not to each offence committed in connection with such taking and possession; and/or

· that there should not have been a conviction with respect to all four breaches of the Rules as this was a breach of the "double jeopardy rule" and was contrary to the principle enunciated in Wood v Major A49/1992.

The special penalty

1. The Act, s267 provides:

"267 ¾ (1)           On a finding of guilt for an offence under this Act or regulations or rules made under this Act relating to the taking or possession of fish, a court must impose a special penalty equal to 10 times the value of the fish.

(2)   A court must not reduce or suspend a special penalty for any reason."

1. Subsection (1) bears a striking similarity to the provisions of the Fisheries Act 1986 (SA), s66, as enacted in 1987, viz:

"Where a person is convicted of an offence against this Act involving the taking of fish, the court shall, in addition to imposing any other penalty prescribed by this Act, impose a penalty equal to ¾

(a)  five times the amount determined by the convicting court to be the wholesale value of the fish at the time at which they were taken;

or

(b)  ten thousand dollars, whichever is the lesser amount."

1. The proper construction of this provision was considered in Ferraro v Glover (1989) 51 SASR 559. The question in that case was whether the special penalty had to be imposed with respect to each offence or only with respect to the catch in a case where more than one offence was committed with respect to a single catch of fish. King CJ considered that s66 required the imposition of penalty with respect to the catch and not each offence. He said, at 560:

"I agree with the learned judge [appealed from], however, that s 66 does not require or authorise the imposition of the additional penalty in respect of each offence where the same fish are involved in each offence. The additional penalty is related to the value of the fish involved in the offending. I think that the intention underlying the provision is that the offender should suffer the penalty appropriate to each offence, and should in addition be required to pay five times the wholesale value of the fish involved in the offending. I consider that to construe the section as requiring a separate additional penalty for each offence committed in respect of the same catch of fish would be unnecessarily Draconic and contrary to the intention which I discern in the provision. I think that in accordance with s 26(b) of the Acts Interpretation Act 1915 the word 'offence' in the singular number should be construed as including 'offences' in the plural number. In my view therefore the magistrate was in error in imposing the additional penalty of $314.65 on count 3."

1. Cox J was a little more cautious.  He found the words of the section ambiguous in that they admitted both views.  He said that the ambiguity required the Court to adopt the view that avoids harshness and cited Byrne v McLeod (1934) 52 CLR 1 at 8 as authority for that proposition. He thus reached the same result as King CJ. The other member of the Court, Millhouse J only said, "I agree".

1. Ferraro v Glover was distinguished by Zeeman J in Munday v Brown (1996) 6 Tas R 364. However, in that case his Honour was considering the proper meaning of the Sea Fisheries Regulations 1962, reg44(5A) which provided:

"(5a)  If a person is guilty of an offence against these regulations with respect to an abalone or a portion of an abalone, there is to be imposed on the person, in addition to any other penalty to which he or she is liable in respect of that offence, a special penalty of exactly 0.5 penalty unit in respect of each of those abalone or each of those portions of abalone."

1. With respect to the proper meaning of that provision, his Honour said, at 368:

"I consider that the South Australian provision is distinguishable from reg44(5a) in that it provided for a special penalty related to the value of the catch, supporting the proposition that the catch, rather than the offences committed, was the primary object of the special penalty. By way of contrast, reg44(5a) fixes a monetary amount unrelated to fluctuations in value. That aspect was important in the reasoning of King CJ. The South Australian provision is also distinguishable because the form of words used by it did not specify that the special penalty was to be imposed in respect of the offence of which the offender was convicted. In my view reg44(5a) does so specify. The obligation imposed by reg44(5a) to impose a special penalty 'in addition to any other penalty to which [the offender] is liable in respect of that offence' is to be construed as an obligation to impose the special penalty in relation to each relevant offence. I note that the important words "in respect of that offence" did not appear in the South Australian section."

1. By enacting the Act, Parliament abandoned the provisions of the Sea Fisheries Regulations 1962, reg44(5A) in favour of the enactment of the Act, s267(1). Having regard to the similarity between the words of the South Australian provision as enacted in 1987, and the Act, s267(1), it is reasonable to infer that Parliament intended the subsection to bear the same meaning that the South Australian Full Court attributed to the corresponding South Australian section.

1. There is authority for the proposition that statutory expressions in one jurisdiction should be construed in the same way as like provisions in another jurisdiction.  In Danziger v The Hydro-Electric Commission [1961] Tas SR 20, Crisp J said, at 24:

"One should not be astute to seek differences between statutes, even though of different jurisdictions, in pari materia.  Though a breach of the draftsman's golden rule it is not a necessary implication that a departure in drafting indicates a different intention from the precedent, and in this case I think, despite the formal differences, the Tasmanian provision is intended concisely, though with dangerous brevity, to achieve the same result as the Imperial subsection and it should be construed accordingly."

See also PT Ltd v Maradona Pty Ltd (No 2) (1992) 27 NSWLR 241 at 252; Ory and Ory v Betamore Pty Ltd (1990) 54 SASR 331 at 345.

1. There are also authorities to support the proposition that where an enactment is repealed and re-enacted after judicial interpretation in another jurisdiction, the legislature is assumed to know the judicial interpretation placed on the statutory words and intended that interpretation to apply to the re-enactment.  See Local Board of Health of Perth v Maley (1904) 1 CLR 702; Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317.

1. There is another reason to suppose that by the enactment of the Act, s267(1) the Tasmanian Parliament intended the subsection to bear the same meaning as the equivalent South Australian provision. In Ferrarov Glover (supra) at first instance ((1998) 50 SASR 154), White J held that as the fish taken were undersize, there was no wholesale market for undersize fish and accordingly set aside the mandatory penalties imposed in the court below. His Honour was reversed on this aspect of the case on appeal, but the Tasmanian legislature avoided all these difficulties by enacting the Act, s269 which provides:

"269 ¾ (1)           For the purpose of this Division, a court must determine the value of any fish ¾  

(a)by multiplying the weight of the fish by the value of each unit of weight declared for fish of that class or species; or

(b)by multiplying the number of fish by the value of each fish declared for fish of that class or species.

(2)  The Minister, by order, may declare ¾  

(a)the value of each unit of weight for fish of a specified class or species; or

(b)the value of each fish of a specified class or species."

1. Statutory Rule 65 of 1997 sets out the value of several species of fish, including abalone, for the purposes of the Act, s269. As a footnote, I observe that the South Australian provision has been amended since Ferraro v Glover was decided and now reads:

"(1)   Where a person is convicted of an offence against this Act involving fish taken in contravention of this Act, the court must, in addition to imposing any other penalty prescribed by this Act, impose a penalty equal to -

(a)five times the amount determined by the convicting court to be the value of the fish at the time at which the offence was committed; or

(b)$30 000, whichever is the lesser amount.

(2)   For the purposes of subsection (1), a fish taken in contravention of this Act  is be taken to have a wholesale value equivalent to that of a fish of the same species taken not in contravention of this Act."

1. For the foregoing reasons, I am clearly of the view that the reasoning of Zeeman J in Munday v Brown (supra), applicable to the repealed Sea Fisheries Regulations 1962, reg44(5A), has no application to the Act, s267(1). For the reasons expressed by both King CJ and Cox J in Ferraro v Glover (supra), I am also clearly of the view that s267(1) means that the special penalty falls to be imposed with reference to the quantity of fish taken or possessed, regardless of the number of offences committed in relation to such taking or possession.

Double jeopardy

1. With respect to the contraventions of the Rules, the applicant was charged with:

"(1)Having possession of 704 abalone meats, each of which weighed less than 90 grams, contrary to the rule 21(a).

(2)Taking 2,436 abalone without a licence contrary to rule 11.

(3)Taking more than 10 abalone in any one day without a fishing licence contrary to rule 17(1)(a).

(4)Having possession of more than 20 abalone when not the holder of the documentation set out in rule 17(1)(c), contrary to that rule.

(5)Possess on a vessel abalone when detached from the shell contrary to rule 20(1)(a)."

1. All offences related to the same 2,436 abalone taken without a licence, or some of them.

1. Counsel for the applicant in the court below submitted to the learned magistrate that the applicant should not be convicted on all five matters of complaint, for to do so would breach the double jeopardy rule as expounded in Wood v Major (supra).  The learned magistrate rejected the submission except with respect to the offence of taking more than 10 abalone in any one day without a fishing licence.  He ordered the dismissal of that matter of complaint.

1. The motion to review, ground 2, attacks the learned magistrate's decision to proceed to conviction on all but one of the charges for a breach of the Rules and also attacks the imposition of a special penalty upon each breach of the Rules in respect of which there was a conviction. In view of the conclusion I have reached with respect to the interpretation of the Act, s267(1), there is no need to consider this ground insofar as it alleges that by imposing a special penalty for each breach of the Rules, the applicant was, in effect, punished more than once for the same unlawful conduct.

1. At the time Wood v Major was decided, there appeared to exist some uncertainty over the extent of the double jeopardy rule, namely, whether it applied to two or more offences arising out of the same, or substantially the same, set of facts or whether it only applied to offences with the same elements and to cases where the elements of one offence were wholly contained in another offence.  See Wemyss v Hopkins (1875) LR 10 QB 378; R v O'Loughlin; Ex Parte Ralphs (1971) 1 SASR 219. The former Chief Justice found it unnecessary to attempt a resolution of those uncertainties in Wood v Major and disposed of the case upon the basis that a person should not be punished twice for the same wrongful conduct. 

1. Since the decision in Wood v Major, the whole issue of "double jeopardy" has been the subject of authoritative analysis by the High Court in Pearce v R (1998) 103 A Crim R 372. It is now clear that there are two aspects to the double jeopardy rule. One relates to conviction, and one relates to sentence. With respect to conviction, Pearce is authority for the proposition that a plea in bar will succeed only in a cases where, "the elements of the offences charged are identical or in which all of the elements of one offence are wholly included in another", per McHugh, Hayne and Callinan JJ at 378.  See Gummow J at 386 and Kirby J at 406.

1. With respect to punishment, the joint judgment stated the position at 382 in the following terms:

"To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts."

1. I reject the submission that a conviction for possessing more than 20 abalone when not the holder of the documentation prescribed by s17(1)(c) should be quashed because the applicant had been convicted of taking abalone without a licence and only licence holders will have the relevant documentation. Although it might be said that conviction for a breach of r17(1)(c) was an inevitable consequence of taking abalone without a licence, proof of the commission of the former offence required proof of an element not contained in the latter offence. However, punishment for the offence of taking abalone without a licence would, in a practical sense, include punishment for having possession of more than 20 abalone without the relevant documentation.

1. The learned magistrate was right to dismiss the charge of a breach of the Rules, r17(1)(a) for the elements of that offence are wholly contained in the offence of taking 2,436 abalone without a licence. With respect to the remainder of the offences, it is quite plain that in no case are the elements of one offence either identical with the elements of another offence or wholly included in another offence. The convictions for four breaches of the Rules involve no breach of the double jeopardy rule.

Conclusion

1. The motion to review succeeds.  All of the orders of penalty and the order for payment of the fines at the rate of $20,000 per year are set aside.  The matters of complaint in respect of which a conviction was imposed are remitted to the learned magistrate for resentencing in accordance with law.