Tasmania v O'Mahony
[2004] TASSC 106
•31 August 2004
[2004] TASSC 106
CITATION: Tasmania v O'Mahony [2004] TASSC 106
PARTIES: TASMANIA
v
O'MAHONY, Wayne
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 381/2003
DELIVERED ON: 31 August 2004
DELIVERED AT: Hobart
HEARING DATES: 18 August 2004
JUDGMENT OF: Slicer J
CATCHWORDS:
Criminal Law – Jurisdiction, practice and procedure – Judgment and punishment – Sentence – Factors to be taken into account – Miscellaneous matters – Other matters.
Living Marine Resources Management Act 1995 (Tas), s264.
Aust Dig Criminal Law [851]
REPRESENTATION:
Counsel:
Crown: D J Coates SC
Accused: M J Crisp
Solicitors:
Crown: Director of Public Prosecutions
Accused: Creese Crisp & Fay
Judgment Number: [2004] TASSC 106
Number of Paragraphs: 9
Serial No 106/2004
File No 381/2003
TASMANIA v WAYNE O'MAHONY
REASONS FOR JUDGMENT SLICER J
31 August 2004
Wayne O'Mahony has pleaded guilty to the indictable offence of illegal possession of fish, contrary to the Living Marine Resources Management Act 1995 ("the Act"), s264. The circumstances surrounding the offence and its detection have been stated in State of Tasmania v Mayes and O'Mahony [2004] TASSC 52 and do not require detailed repetition. On 2 November 2000, fisheries officers intercepted two vehicles transporting abalone to a depot in Strahan. The vehicle driven by Mr O'Mahony was carrying 606 kilograms of abalone which had a "beach price" of $31,312. The abalone had been legally caught by a licensed diver but, on land, had been divided into two portions of 877 and 606 kilograms respectively for transportation. No dive docket had been completed and Mr O'Mahony, as an employee of the receiving processor, had no record of his lawful receipt of the resource or its quantity. Both Mr O'Mahony and the diver told officers that it was their intention and past practice to transport the produce to the depot and there weigh and document the catch. They had done so on the previous day.
The arrangements made by the processor were unsatisfactory, especially given the value of the resource and the return generated. The abalone was to be processed in Smithton at an unmanned depot maintained at Strahan. Mr O'Mahony was but a casual employee. The company had arrangements for the provision of a truck for transportation but had made inadequate procedures for receipt, recording and transference. In his statement given during the sentencing hearing, Mr O'Mahony stated:
"16My role was to do the manual labour, I was not involved in the weighing or paper work.
17Occasionally though, smaller boats would come in to the landing area at Mill Bay (Meredith Street) and the unloading and weighing would take place there. If Kerry was at Strahan with the truck, he would do the weighing on the spot, load the truck and complete the paper work before driving the abalone to the Tas Seafoods factory at Smithton.
18On about two or three occasions prior to 1st November 2000, Kerry was not at Strahan with the truck, a small boat was at the landing area at Mill Bay and I was asked by Tas Seafoods to arrange to collect the fish from the diver and wait for it to be loaded onto Kerry's truck. Mostly I would borrow a bigger truck, usually from Michael Stacey, and go round to Mill Bay and meet the diver. I would take the scales with me and the diver and I would weigh off the fish, put them on the truck and I would wait with the truck at the landing area for Kerry to arrive, we would then move the fish to his truck and he would drive them through to Smithton.
19It was on these occasions, when I assisted the diver in unloading the fish and weighing them at Mill Bay, that I completed paper work on behalf of Tasmanian Seafoods.
20On the morning of the 1st November 2000, I was called by Gwen Vincent from Tasmanian Seafoods at Smithton. She explained the big truck driven by Kerry was going to be late into Strahan (I think she said it was going to go into Granville Harbour first), that they were expecting abalone from a Nigel Mays [sic], and would I take the small truck down to the Heads at Strahan to pick them up.
21I had not previously been asked to do this, and I was not aware until this time, that the Heads was a place at which abalone were landed. Certainly, in my time with Red Rock, I was never aware of the big truck going to the Heads to collect abalone.
22I was a bit concerned at the request, I asked Gwen if she was sure, she said yes, so I accepted it must be right.
23I loaded up the one tonner with the scales, fully intending to weigh the abalone in and cart them back to the depot at Strahan to await the arrival of the big truck from Smithton.
24When Mayes arrived at the boat ramp at the Heads at Strahan, it was obvious he had more than the one tonne truck would carry ‑ its safe carrying capacity, given the canopy and refrigeration equipment, and the state of the road over which it had to traverse, in my judgment was about 500 ‑ 700 kilograms.
25I estimated Mayes had about one tonne of abalone.
26Mayes said he had too much for them all to be carted into Strahan in his boat, on the trailer or on the back of his vehicle.
27I do not know whose idea it was, but we halved up what he had, carted them to Strahan, weighed them in at the depot and completed the paper work there. I have seen a copy of the diver's docket, No 19655 for 1st November 2000, it bears my name and signature, and to the best of my knowledge, that is the paper work which was completed at the Strahan depot on that day."
It would appear from his account that the processor had not provided sufficient protocols, directions or certainty of transportation to ensure compliance with a strict and necessary regime.
Parliament has enacted for a comprehensive scheme by legislation, regulation and a management code to ensure that a valuable public resource is not destroyed and that the valuable returns obtained by investors, processors and harvesters are accounted for. Failure to comply with "recording and tracking" documentation at the point of landing weakens the efficacy of the general scheme. The division of the catch, as here, without documentation, might have facilitated the following forms of evasion of the regulatory and managerial regime, namely that:
(1)Portion of the catch (606 kilograms) only was delivered to the processor with the remainder directed to a non-licensed processor or otherwise illegally disposed of. In such a case, the quota requirements could be avoided.
(2)All of the catch was delivered to the processor, but only that portion transported by the processor's vehicle, recorded with the balance processed for the buyers.
(3)Variations of the above with a consequence that either the diver's quota or the processor's records would not be affected.
Evasion involves minimal risk. The sanction here, irrespective of the subjective circumstances of the offender, must include a component of general deterrence to those who work within and profit by the industry. As counsel for the prosecution contended, it is impossible, absent detection, to dispute a claim of past or accepted practice and, at least, difficult for authorities to determine the intention of those "caught in possession". The "docket system" is designed to show without doubt that the catch is legal and its proposed disposal licensed.
The statement of Mr O'Mahony continues:
"29As I was a bit concerned for what had happened the previous day, when I was phoned the next day by Gwen with a request to again go to the Heads and meet up with Mayes (she again told me the big truck would be late), I did explain to her what happened the day before. She said words to the effect 'Well, that would be OK, do what you did yesterday if you have to'.
30As I headed off to the Heads on the 2nd November 2000, I had no idea the weight of abalone Mayes may have had, I put the scales in the truck and headed off.
31I had it in my mind that if he had what the one tonner could carry, I would weigh them off and do the paper work at the Heads.
32When I met up with Mayes, he was waiting for me. It was obvious he had more than the one tonner could carry …".
There were other options open to the offender. Whilst the processor had not provided sufficient instructions or procedures, it remained Mr O'Mahony's responsibility to ensure compliance.
The legislation provides for the mandatory imposition of a special penalty which, in this case, amounts to $163,620 and such will be imposed. However, its imposition will have little import. Mr O'Mahony has only casual employment and his main income is the receipt of a New Start allowance supplementing his casual wage. His income makes a fine inappropriate, especially in light of the amount of the special penalty. Mr O'Mahony, aged 60, has worked within the fishing industry for over 25 years and ought be aware of the necessity of recording and tracking the catch of marine resources. He has no convictions for any offence and bears a relatively low level of culpability. The offender has co-operated with the fishery authorities and has undertaken to continue to so do. He is entitled to the benefit of his plea of guilty. It is said that he had not previously met with the diver. Nevertheless he ought be subject to a sanction which reflects the importance of the management scheme and the responsibility of those engaged in the industry. Parliament has, through its enactment of the Act, s264, stated that the conduct here considered be treated as a crime attracting a penalty commensurate with the range permitted by the Criminal Code 1924. In doing so, it must have intended a more serious consequence for breach than previously applied. The penalty imposed by this Court on Max Cameron Quarrell on 10 December 2003 which related to an act of transporting "poached" abalone is of little import in this case where penalty attaches to the conduct of those legitimately engaged in the industry and who have the ability to easily circumvent the regulatory scheme. The sentence of imprisonment represents a statement to those within the industry and the requirements of general deterrence. Here the offender was a person responsible in law for the due processing of essential documentation. The imposition of a sentence fully suspended is intended as a general statement of deterrence and a reflection of the subjective circumstances of this offender. Had the offender been a processor or possessed assets or means commensurate with those reflective of the returns generated by the industry, a significant pecuniary penalty might be appropriate, but such is not the case here. Where the person in possession is but an agent of others, the sanction ought discourage any possibility that those without resource are used for reception and transportation.
Orders:
(1)Wayne O'Mahony be convicted of the indictable offence of illegal possession of fish.
(2)Wayne O'Mahony be sentenced to a term of imprisonment for a period of 1 month, such sentence to be suspended on condition that he commit no crime or offence involving fisheries legislation or regulation for a period of 2 years.
(3)Wayne O'Mahony be subject to the payment of the special penalty of $163,620.
(4)Both parties have liberty to make application or submissions in relation to the question of time for the payment of the special penalty.
The victims of crime compensation levy of $50 is to be paid within 2 months.
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