Taws v Lambert
[2003] TASSC 47
•2 July 2003
[2003] TASSC 47
CITATION: Taws v Lambert [2003] TASSC 47
PARTIES: ACTING SERGEANT JAYSON TAWS
v
LAMBERT, John Gary
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 38/2003
DELIVERED ON: 2 July 2003
DELIVERED AT: Hobart
HEARING DATES: 18 June 2003
JUDGMENT OF: Slicer J
CATCHWORDS:
Primary Industry – Fish – Offences – Other cases – Special penalty – Dismissal of complaint does not avoid imposition.
Living Marine Resources Management Act 1995 (Tas), s268.
Aust Dig Primary Industry [35]
Criminal Law – Practice and procedure – Judgment and punishment – Sentence – Mandatory penalty not avoided by dismissal of complaint.
Sentencing Act 1997 (Tas), ss10, 17, 58.
Fisheries Penalties Regulations 2001 (Tas), reg4.
Fisheries (Rock Lobster and Giant Crab) Rules2001(Tas), r29.
Aust Dig Criminal Law [827]
REPRESENTATION:
Counsel:
Appellant: M S Cox
Respondent: K L Baumeler
Solicitors:
Appellant: Director of Public Prosecutions
Respondent: Butler McIntyre & Butler
Judgment Number: [2003] TASSC 47
Number of Paragraphs: 17
Serial No 47/2003
File No LCA 38/2003
ACTING SERGEANT JAYSON TAWS v JOHN GARY LAMBERT
REASONS FOR JUDGMENT SLICER J
2 July 2003
The facts giving rise to this appeal were succinctly stated by the prosecutor at the sentencing hearing as:
"… around 9.42 police were conducting some surveillance of the area of Little Rock Bay and (inaudible) Bay. They observed the defendant to row out in his boat, it was a little dinghy, pick up two pots and then row back into the beach, your Worship. Present on the beach was his partner who was the other person who's registered to have one of the two pots, the other one was his. He was spoken to about this matter and his explanation was that he believed that at the time the water was rough, too rough to take two people out in the boat, he simply went out on this occasion to pick up the two pots and bring them back in and his partner was on the beach. He has no relevant prior matters whatsoever."
Apparently it had been a slow day at the office for the guardians of the State.
The respondent, unrepresented, had changed his plea to that of "guilty" following a discussion with the prosecuting officer which had occurred before the hearing, stated by the prosecutor to have been in the following terms:
"… I have had a chance to speak to Mr Lambert about this matter. From what I had a chance to talk to him about I understand that he accepts that he had possession of two pots in breach of this legislation, but I think he wants to give you an explanation. He's a bit concerned about the fines and so forth so."
The respondent raised the question of whether, on his reading of a "pamphlet from the Fisheries", the presence of his partner 100 metres distant constituted presence, but following the correct statement of the learned magistrate that he ought not provide "legal advice", adhered to his indication of plea. Following plea and the statement of facts, the learned magistrate observed that:
"That's the typical sort of story that I hear a lot. By saying that I don't mean that I doubt it at all, it's simply what frequently happens that the weather is a bit rough to carry two in a small dinghy, so one of them rows and pulls both pots and that's it. Now the minimum penalty is $100, well there are no prior matters. On first conviction the minimum penalty is $100 to $500. If it was second time round it would be $200 to $10,000 and the third time round is $500 to $20,000 then or six months' gaol. So you can see that the penalties are pretty significant. I don't see why I should go beyond the $100 penalty unless you wish to tell me anything else."
and proceeded to convict the respondent of the offence of possession of more than "one rock lobster pot" contrary to the Fisheries (Rock Lobster and Giant Crab) Rules 2001, r29, and dismissed a concurrent charge of use. He then pronounced the imposition of a fine of $100, but upon being reminded by the prosecutor that he was required to impose a special penalty of $1,000, revisited the pronouncement and proceeded to dismiss the complaint since, in his view, a total penalty of $1,244 (which included costs) "would be unjust". From that decision, the prosecutor has appealed.
It is first necessary to outline the basis of ground 2 of the appeal, conceded by the respondent, in order to determine the claim by the applicant that the learned magistrate ought to have imposed a fine. Ground 2 states that:
"The learned magistrate erred in law in failing, with respect to the said charge, to impose a special penalty as prescribed by Section 268(1)(a) of the Living Marine Resources Management Act 1995; ie, an amount equal to 10 penalty units for each rock lobster pot used."
The concession made by the respondent was correctly made. The plea of the respondent constituted admission that he had:
"29 ¾ (1) … possession of or use in State waters ¾
(a)more than one rock lobster pot; or
…"
The plea activated the operation of the Living Marine Resources Management Act 1995 ("the Act"), s268, which relevantly states:
"268 ¾ (1) On a finding of guilt for an offence under this Act or regulations or rules made under this Act relating to the use or possession of apparatus, a court must impose a special penalty equal to ¾
(a) 10 penalty units for each rock lobster pot used; and
(b) …
(2) A court must not reduce or suspend a special penalty for any reason."
The Act, s3, provides the definition that the term "conviction" includes:
"(a) a plea of guilty; or
(b)a finding by a court that a person committed an offence for which the person was charged even though a conviction was not recorded; or
(c)a finding of guilty by a court even though a conviction is not recorded."
The dismissal of the complaint was ordered on the basis that although the respondent had admitted guilt, (Sentencing Act, s58; see also the Justices Act 1959, s74BA) that the circumstances of the case did not require a statement of record against his name. Nevertheless, the dismissal involved a finding of guilt as defined by the Act and, accordingly, required the imposition of a special penalty.
The dismissal of the complaint was permitted by the Sentencing Act 1997, s17(h). It was not a dismissal based on a determination of the merits of the case or the failure of a prosecutor to place evidence before the relevant court (R v Cogden; ex parte Wilkinson (1871) 2 VR (L) 134; R v Marsham [1912] 2 KB 362. The dismissal does not raise issues of res judicata or estoppel (Loft v Wade (No 1) (1898) 24 VLR 214; McMahon v Johnson [1909] VLR 376).
The applicant contends that notwithstanding the dismissal of the complaint, the learned magistrate was required to impose a fine provided for by the Fisheries Penalties Regulations 2001, reg7. The offence for which the respondent had admitted guilt provides for a penalty of a:
"… fine not exceeding the applicable Grade 3 penalty."
The operation of reg7(1)(a)(i) defines a Grade 3 penalty for a level 1 offence (relevantly defined by reg3 as an offence involving less than three rock lobster pots) as:
"(i) a fine not less than one penalty unit and not more than 5 penalty units, for a first offence."
The Sentencing Act, s10, relevantly states:
"10 ¾ (1) Except as otherwise provided by this Act or any other enactment, a finding of guilt without the recording of a conviction is not to be taken to be a conviction for any purpose.
(2) A finding of guilt without the recording of a conviction ¾
(a)does not prevent a court from making any other order that it is authorised to make by this Act or any other enactment in consequence of the finding; and
(b)has the same effect as if a conviction had been recorded for the purpose of ¾
…
(v)enactments providing for any other kind of mandatory penalty on conviction, not involving disqualification for, or loss of, office or the forfeiture, or suspension, of pensions or other benefits."
The applicant claims that consistent with that provision, the learned magistrate was required, irrespective of conviction, to have regard to the Fisheries Penalties Regulations, reg4, which provides:
"A reference in any Act or, any regulation, rule or management plan made under the Act to a fine not exceeding an applicable Grade penalty includes a reference to a fine not less than the minimum specified for that penalty."
The making of regs4 and 7 was permitted by the Act, s42 and its effect confirmed by statute (Acts Interpretation Act 1931, s37(4)). The dismissal of the complaint did not obviate the requirement of the Sentencing Act, s10, governing:
"… an enactment providing for any … mandatory penalty"
since the term "enactment" includes an ordinance made by an empowered authority (Acts Interpretation Act, ss5, 13(6), 21A, 45; Chittick v Ackland (1984) 53 ALR 143; Thurgood v Director of Australian Legal Aid Office (1984) 56 ALR 565).
The power of the State is vindicated. The learned magistrate ought to have imposed a fine and delivered a homily to the respondent that in future he ought to expose his partner to the risks of "rough water", require him or her to make a separate journey, or risk prosecution under the Fisheries (Rock Lobster and Giant Crab) Rules, r55(7).
This Court is required to uphold the motion to review, quash the order of the court of petty sessions and, at the request of the parties, substitute its own orders. The following orders are made:
(1) that the complaint be dismissed;
(2) that the respondent pay a fine of $100 and to pay a special penalty of $1,000.
The motion to review being upheld, it appears that this Court has no power to suspend the operation of the fine. The Executive thus vindicated might well consider giving effect to the remedy afforded by Parliament in its enactment of the Sentencing Act, s98, which permits the remission of all or a significant portion of the fine and penalty imposed.
The time fixed for the payment of the fine is that of one year and for payment of the special penalty, within two years.
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