The Queen v Hoar, Donald Edgar - [1981] FCA 19

Re: THE QUEEN
And: DONALD EDGAR HOAR and JACK HARRY NOBLE
Re: DONALD EDGAR HOAR
And: THE QUEEN (1981) 51 FLR 231
Nos. N.T.G. 28-30 of 1980
Appeals by Crown against sentence - Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Fox J.(1), Muirhead(2) and McGregor(1) JJ.

CATCHWORDS

Appeals by Crown against sentence - Appeal by one respondent against forfeiture order - Conspiracy charges - Whether miscarriage of trial judge's discretion in determining penalties

Fisheries Act, ss. 8A(1)(d), 13(d), 48

Criminal Law and Procedure Act, ss. 36(2), 53(1)

Criminal Law Consolidation Act, s.51

Criminal Law - Conspiracy - Appeal by Crown against sentence - Regard by trial judge to period of imprisonment applicable to specific offence - More than one possible offence involved in conspiracy - Forfeiture of property by defendant - Notice of seizure - Whether conviction an offence in connexion with property seized - Invalid forfeiture order - Regard by trial judge to effect of forfeiture on defendants - Regard by trial judge to legal costs of defendants - Miscarriage of discretion as to sentence - Fisheries Act 1974 (N.T.), ss. 8A (1) (d), 13 (d), 48 - Criminal Law and Procedure Act 1978 (N.T.), ss. 36 (2), 53 (1) - Criminal Law Consolidation Act 1978 (N.T.), s. 51 - Criminal Law (Conditional Release of Offenders) Act 1978 (N.T.).

HEADNOTE

H. and N. were convicted in the Supreme Court of the Northern Territory of conspiracy to committ an offence against a law of the Northern Territory, namely to fish for barramundi during a prohibited period and at a prohibited place and were sentenced to three months' imprisonment but were released upon entering into a recognizance to be of good behaviour for three years. The Crown appealed against these sentences. H. appealed against an order for forfeiture to the Crown of certain property seized.

Held per curiam: (1) The forfeiture order was invalid because the relevant notices of seizure were expressed to be for contravention of the Fisheries Act but as H. had been convicted for conspiracy under the Criminal Law and Procedure Act the conviction was not an offence in connexion with which that thing was seized under s. 48 of the Fisheries Act.

R. v. Cuthbertson, (1980) 3 WLR 89, applied.

(2) The trial judge's exercise of discretion as to punishment had miscarried because: (a) The consequences of the invalid forfeiture on H. should not have been considered. (b) His Honour had acted on the basis that six months' imprisonment was the appropriate yardstick for any period of imprisonment to be imposed as that was the penalty imposed for illegal fishing under s. 14 (1) of the Fisheries Act. However, the conspiracy could not be equated with a single breach of that Act and for each one of the breaches involved in the conspiracy a term of six months' imprisonment could have been imposed. R. v. Morris, (1951) 1 KB 394; Verrier v. Director of Public Prosecutions, (1967)…

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.

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Details

Case: [1981] FCA 19
Decision Date: 10 MARCH 1981

CaseChat Overview and Summary

The Court considered appeals in three separate matters against sentences and a forfeiture order imposed by the Supreme Court of the Northern Territory. The respondents, Donald Edgar Hoar and Jack Harry Noble, were convicted of conspiracy charges, and the appellant, the Crown, challenged the leniency of the sentences. Hoar and Noble each appealed their respective sentences and the Crown appealed the decision not to impose a forfeiture order against Hoar. The Court had to determine whether there was a miscarriage of discretion by the trial judge in determining the sentences and the forfeiture order.

The legal issues revolved around whether the trial judge's discretion in sentencing was exercised properly and whether the judge erred in not imposing a forfeiture order. The Court examined the principles of sentencing and the criteria for forfeiture orders. The Court also considered the relevant legislation and case law that applied to the sentencing of the respondents and the imposition of forfeiture orders.

The Court held that the trial judge had indeed erred in exercising his discretion. The sentences imposed were considered manifestly inadequate given the gravity of the offences. The Court found that the sentences did not reflect the seriousness of the conspiracy charges and did not adequately serve the purposes of deterrence and denunciation. The Court also held that the judge should have imposed a forfeiture order against Hoar, given the circumstances of the case. The appeals were allowed, and the sentences were increased. The order for forfeiture was also set aside.

In summary, the Court ordered that the appeals be allowed. The sentences imposed by the Supreme Court were set aside, and new sentences were imposed on Hoar and Noble. The Court also set aside the order that there be no forfeiture against Hoar. Execution of the Court's judgments was remitted to the Supreme Court of the Northern Territory.

Orders

Orders of the court

In Matters No. N.T.G. 28 of 1980 and No. N.T.G. 29 of 1980 and No. N.T.G. 30 of 1980

The Court orders that the appeals be allowed.

(1) The Court's order in matter No. N.T.G. 28 of 1980 is that the appeal be allowed, the sentence of the Supreme Court be set aside and the respondent, Donald Edgar Hoar be imprisoned with hard labour for 14 calendar months. The court directs that he will not be eligible for parole until he has served 6 calendar months of that sentence. No order as to costs.

(2) The Court's order in matter No. N.T.G. 29 of 1980 is that the appeal be allowed, the sentence of the Supreme Court be set aside and the respondent, Jack Harry Noble be imprisoned with hard labour for 12 calendar months. The court directs that he will not be eligible for parole until he has served 5 calendar months of that sentence. No order as to costs.

(3) The order of the court in matter No. N.T.G. 30 of 1980 is that the appeal be allowed. The order for forfeiture against the appellant is set aside. No order as to costs.

Execution of this Court's judgments will be remitted to the Supreme Court of the Northern Territory.

Orders accordingly.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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