Walters v CEO of Australian Customs and Border Protection Service - [2012] WASC 456

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: WALTERS -v- CEO OF AUSTRALIAN CUSTOMS AND BORDER PROTECTION SERVICE [2012] WASC 456

CORAM: HALL J

HEARD: 20 NOVEMBER 2012

DELIVERED : 30 NOVEMBER 2012

FILE NO/S: SJA 1043 of 2012

BETWEEN: COLIN DAVID WALTERS
Appellant
AND
CEO OF AUSTRALIAN CUSTOMS AND BORDER PROTECTION SERVICE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE E A WOODS
File No  :PE 8489 of 2012, PE 8490 of 2012

Catchwords:

Criminal law - Appeal against sentence - Customs offences - Failure to notify arrival of a vessel by required time - Whether magistrate erred by refusing a discharge without conviction (s 19B Crimes Act 1914 (Cth) - Whether refusal resulted in a sentence that was manifestly excessive in the particular circumstances - Consistency in sentencing - Whether offence committed in extenuating circumstances

Legislation:

Crimes Act 1914 (Cth), s 19B

Result:

Leave to appeal granted
Appeal allowed
Sentence set aside and an order under s 19B(1)(c) is granted

Category: B

Representation:

Counsel:

Appellant: Mr S D Freitag
Respondent: Mr A C Willinge

Solicitors:

Appellant: D G Price & Co
Respondent: Australian Government Solicitor

Case(s) referred to in judgment(s):

Chan (1989) 38 A Crim R 337
Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Hayes v Weller (1988) 50 SASR 182; (1988) 93 FLR 64
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Kelton v Uren (1981) 27 SASR 92; (1981) FLR 232
Lanham v Brake (1983) 34 SASR 578
Matta v Australian Competition and Consumer Commission [2000] FCA 729
McDougall v The State of Western Australia [2009] WASCA 232
McInnes v Global Imports Pty Ltd [1992] FCA 590; (1993) ASCR 56‑199
Nelson v Quinn [2001] WASCA 297
O'Brien v M R Norton‑Smith Pty Ltd [1995] TASSC 78; (1995) 83 A Crim R 41
O'Sullivan v Wilkinson [1952] SASR 213
Paterson v Fenwick [1994] ACTSC 25; (1994) 115 FLR 462
Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319
Scott v The Chief Executive Officer of Customs [2012] WASC 203
Stark v Plant [2010] WASCA 74
Ulf Weller (1988) 37 A Crim R 349
Uzanski v Searle (1981) 26 SASR 388; (1981) 52 FLR 83
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

HALL J:

Introduction

On 15 March 2012 the appellant pleaded guilty to one charge of failing to report the impending arrival of a vessel at a port, contrary to s 64 of the Customs Act 1901 (Cth) and one charge of failing to report on the crew expected to be on board a vessel on arrival at a port, contrary to s 64ACB of the Customs Act. Both offences related to the same incident which was alleged to have occurred on 19 May 2011. A fine of $500 was imposed in respect of each charge and the appellant was ordered to pay costs of $2,000. An application made on behalf of the appellant that he be discharged without conviction, pursuant to s 19B of the Crimes Act 1914 (Cth), was refused.
The appellant now seeks leave to appeal against the sentence. In particular, he seeks to appeal against the refusal of the magistrate to grant him a s 19B discharge.
The ground of appeal, as amended, is as follows:
The learned Sentencing Magistrate erred by imposing a sentence that was, given all the circumstances of the offence and the circumstances of the Appellant, excessive.
Particulars
The learned Sentencing Magistrate refused to make a order pursuant to s 19B of the Crimes Act 1914 discharging the offender without conviction.

Facts

The facts of the offending, which were formally accepted, were as follows.
In 2011 the appellant participated in the Fremantle to Bali yacht race. He was the master of a yacht named Bird of the Morning. Prior to his departure from Fremantle on 23 April 2011 the appellant was provided with an information pack which included details of the formalities that needed to be complied with when returning to an Australian port. One of those formalities was a requirement to notify Customs of the estimated place and time of arrival not more than 10 days or less than 96 hours prior to arrival: s 64(5) Customs Act. Shorter periods are prescribed for certain kinds of journey (of which this was not one): reg 27. The 96 hour period is prescribed by reg 26 of the Customs Regulations 1926 (Cth). The notification can be provided either by document or electronically: s 64(3), s 64(10), s 64(11).
After completing the yacht race the appellant departed Bali for the homeward voyage on 16 May 2011. On 23 May 2011 at about 1.30 am he contacted the Dampier Harbour Master to report the impending arrival of his yacht. The Dampier Harbour Master is not a Customs officer, however the Harbour Master notified Customs. At approximately 4.11 am on 23 May 2011 the appellant's yacht arrived at Dampier Port.
Due to the lateness of notification Customs officers were not able to be present at Dampier Port for the arrival of the yacht. At 5.15 am a Customs officer contacted the appellant to commence arrival formalities. The appellant participated in an interview with Customs officers and stated that he had received the paperwork regarding Customs requirements on the morning of the race but did not read them thoroughly. He said that he did not make contact before the morning of his arrival because his radio was not functioning. He accepted that he knew when he left Bali that his destination was Dampier and that he could have reported his intended arrival before leaving Bali.

Defence submissions

The appellant's counsel submitted to the magistrate that the essential reason why he did not report to Customs was because he was unable to do so. This was because the VHF radio on board the vessel became wet and was not functioning. There had been some difficulties with the radio prior to the race but the appellant had some work done to it and when he left Fremantle it was in working order. This was his first open water race and he had not anticipated how conditions at sea could affect his equipment.
The radio had been operational whilst the vessel was in Bali. However, on the return journey weather conditions worsened and the appellant was unable to use the radio. There was alternative communications equipment on board, being a short range radio and a satellite telephone. However, that equipment did not enable earlier communication. The appellant had used the satellite telephone to contact the Harbour Master when he was within close enough range. He had asked the Harbour Master to inform Customs of their impeding arrival. When the appellant's vessel did arrive he complied with all requirements of the Customs officer and fully cooperated with enquiries.
The appellant was 47 at the time of sentencing, married with three children. He was described as being of exceptional character and a number of character references were tendered to the court. He has a tertiary qualification and was said to be passionate about assisting others. He was currently employed as a bus driver for children with special needs and also undertook mentoring for young people with intellectual disabilities. He had no previous record.
It was submitted by the appellant's counsel that his offending was at the lower end of the scale given his attempts to make sure that the radio equipment was in working order and his effort to inform Customs, although not within the time prescribed. Reference was made to the appellant's good character and to his concern as to the effect that a conviction would have on his employment, given that he required a Working with Children Notice to drive the bus.

Magistrate's reasons

In sentencing the appellant, the magistrate acknowledged the importance of border controls and noted that it was incumbent on participants in the yacht race to make themselves familiar with such requirements. In regard to the circumstances of the offences her Honour said:
In relation to the actual race conditions, obviously they vary and you need to prepare accordingly. I don't have any personal experience of that, but I'm sure that you took steps to make other arrangements and have the necessary equipment. Otherwise, I presume you wouldn't have been able to partake in the event. In relation to the radio equipment, that can obviously be a dicey proposition and in your particular instance, if you had had difficulties with your radio equipment, you did have other equipment available, as I have been told, although the difficulties with the satellite equipment is certainly unless there is some sort of range availability, it doesn't help much.
In the circumstances, it seems to me that you didn't make yourself aware of this information and no doubt you are inundated with lots of information in relation to a race like this, but it would seem that you just weren't on top of all of that as you were required to be and you have entered pleas of guilty at the first opportunity in relation to these matters (ts 5 - 6).
In regards to the application under s 19B of the Crimes Act, her Honour noted that there were different considerations to be taken into account than were applicable for the State equivalent of a spent conviction under s 45 of the Sentencing Act 1995 (WA). She said that in respect of a s 19B application the test was to show 'something exceptional and out of the ordinary in relation to yourself that would set you apart and make the order appropriate'.
Her Honour then said that she did not consider that Working with Children permission would be in any way jeopardised by convictions of this nature. She said that she felt sure that the appellant would have an opportunity to explain the nature of the convictions and she did not think that they would be in any way influential in relation to future employment.
Her Honour noted the appellant's past good character and then said:
Whilst I don't want to down play the seriousness of those border controls and obviously they are important, and we have been able to maintain our position in relation to that and it's guarded fiercely, I don't think in the circumstances it's necessary and I don't think it's appropriate to make the 19B order (ts 15/3/12, page 6)

Proceedings in relation to Mr D

In submissions on this appeal the appellant's counsel relied on the different disposition in a similar matter that had come before the same magistrate about one month earlier. It was suggested that the different outcomes were inconsistent. In the earlier case, the offender had been granted a s 19B discharge. Because of that, and because that offender was not a party to the present proceedings, I will refer to him as Mr D.
Mr D had also been a participant in the Fremantle to Bali yacht race in 2011. He, too, had been the master of a yacht which had arrived in Dampier on its return to Australia without complying with the 96 hour advance notice requirements. He was charged with the same two offences as the appellant and appeared before the magistrate and entered pleas of guilty on 9 February 2012.
In mitigation it was submitted that the VHF radio on board Mr D's yacht had malfunctioned. He had sailed the yacht to Singapore and arranged for the radio to be repaired under warranty. On leaving Singapore, Mr D had tested the radio and it appeared to be working satisfactorily, at least over short distances.
Mr D had intended to travel directly to Fremantle on his return to Australia. However, two days outside Dampier the weather deteriorated to such an extent that it was necessary to take what were described as 'evasive measures' to ensure that the vessel was not placed in danger. The heavy seas and deteriorating weather caused a crew member to become violently ill with seasickness.
Mr D then decided that for the safety of the crew and the vessel he would divert to Dampier. He tried to contact Customs by radio to advise of the impending arrival of his yacht, but was unsuccessful. It would seem that this was because the radio was not working properly and was only effective over a distance of about 100 metres. Mr D then attempted to use a backup satellite telephone to contact Customs, but was again unsuccessful. He was able to contact his wife and instructed her to advise Customs. Mr D's wife informed the Dampier Harbour Master and also, as requested by Customs, sent an email advising the names of crew members on board and their passport numbers.
Mr D's yacht arrived at Dampier at 5.50 pm on 9 June 2011. It is not clear from the transcript of the proceedings how long before arrival Mr D had made contact with his wife, though there is reference to the Dampier Harbour Master informing Customs that he had been contacted by Mr D's wife on 8 June 2011. In any event, it was accepted that notice had not been given 96 hours prior to arrival as required.
Mr D was described as a successful businessman and the Chief Executive Officer of a company that did business in a Middle Eastern country. It was suggested that if a conviction was recorded it 'may' restrict Mr D's ability to do business in the Middle Eastern country. It was also suggested that the offences had occurred in extenuating circumstances, being the malfunctioning of the VHF radio, the weather conditions and the sick crew member.
In opposing the application for a 19B discharge, the prosecutor noted that in two Queensland prosecutions magistrates had held that the failure of the VHF radio equipment on board a vessel was not an extenuating circumstance as sailors on the high seas should have alternative communication equipment available. In response, the magistrate said that Mr D did have other equipment available and that 'he did what he could'. She also noted that there was no suggestion that Mr D was attempting to avoid his obligations and that if he was he would not have asked his wife to notify Customs. Her Honour said that there was nothing to suggest that the people who were on board the boat were not Australian citizens with Australian passports or that there was any issue in regards to contraband.
In making a s 19B order, her Honour said:
It's my view that there were circumstances here which warrant the making of that order. If it wasn't intended ever to be made then it would [not] have been included in the legislation. It's my view that although this is a strict liability provision, [Mr D] has pleaded guilty on that basis because it is such a provision that there are circumstances in this matter which take it beyond the normal and put him in a separate category where that is appropriate.
Also taking into account his lack of record, his business background and the obvious detriment that he may suffer in relation to that, above and beyond what would be expected of persons of such an offence in these circumstances (ts 9/2/12, page 8).

Relevant sentencing principles

A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implicit error: Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 [126] (Buss JA); Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6] (Gleeson CJ and Hayne J). A claim of manifest excess depends on establishing implied error in the type or length of sentence imposed. The implied error that must be established is that a sentence of the nature or length imposed could not have been reached in the exercise of proper sentencing discretion.
In order to determine if a sentence is manifestly excessive it is necessary to view it in light of the maximum penalty prescribed by law for the offence, the standard of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of the offending and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337 (342) (Malcolm CJ); McDougall v The State of Western Australia [2009] WASCA 232 [12] ‑ [13] (McLure P).
Sentencing decisions are of a discretionary nature. This means that in any particular case there is no single correct outcome. Thus it is possible that seemingly similar cases may result in different penalties. One reason for this may be that however similar two cases may be, each case will depend upon its particular facts and there may well be differences that justify a different outcome. Even if two cases are materially identical, different penalties do not necessarily indicate that in respect of one or other of the cases there has been an implied error in the exercise of discretion. This is because both outcomes, while different, may be within the discretionary range.
That is not to say that consistency is not a desirable objective. In Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 Gleeson CJ said:
All discretionary decision‑making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision‑making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency [6].
In Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ) said:
Consistency is not demonstrated by, and does not require, numerical equivalence. Presentation of the sentences that have been passed on federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing judge. It is not useful because referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were. Presentation in any of these forms suggests, wrongly, that the task of a sentencing judge is to interpolate the result of the instant case on a graph that depicts the available outcomes. But not only is the number of federal offenders sentenced each year very small, the offences for which they are sentenced, the circumstances attending their offending, and their personal circumstances are so varied that it is not possible to make any useful statistical analysis or graphical depiction of the results.
The consistency that is sought is consistency in the application of the relevant legal principles. And that requires consistency in the application of Pt IB of the Crimes Act. When it is said that the search is for 'reasonable consistency', what is sought is the treatment of like cases alike, and different cases differently. Consistency of that kind is not capable of mathematical expression. It is not capable of expression in tabular form [48] ‑ [50].
In Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 French CJ, Crennan and Kiefel JJ considered the application of the parity principle to persons charged with offences arising out of the same criminal conduct or enterprise. Their Honours said that the foundation of the parity principle lay in the concept of equality before the law which requires that the application of the principle be governed by considerations of substance rather than form. This meant that application of the parity principle did not depend upon offenders being charged with identical offences: see [30]. The parity principle is a particular manifestation of the concept of systematic fairness or reasonable consistency in sentencing. Those general principles apply to persons charged with similar offences arising out of unrelated events: see [29]. However, it was acknowledged that there can be practical difficulties in comparing sentences. This will be particularly so where there are significant differences either in the circumstances of the offence or the personal circumstances of the offenders.

Section 19B of the Crimes Act

Section 19B of the Crimes Act relevantly provides that:
(1)Where:
(a)a person is charged before a court with a federal offence or federal offences; and
(b)the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:
(i)the character, antecedents, age, health or mental condition of the person;
(ii)the extent (if any) to which the offence is of a trivial nature; or
(iii)the extent (if any) to which the offence was committed under extenuating circumstances;
that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;
the court may, by order:
(c)dismiss the charge or charges in respect of which the court is so satisfied; or
(d)discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph (c), upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions:
(i)that he or she will be of good behaviour for such period, not exceeding 3 years, as the court specifies in the order;
(ii)that he or she will make such reparation or restitution, or pay such compensation, in respect of the offence or offences concerned (if any), or pay such costs in respect of his or her prosecution for the offence or offences concerned (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay):
(A)on or before a date specified in the order; or
(B)in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs—by specified instalments as provided in the order; and
(iii)that he or she will, during a period, not exceeding 2 years, that is specified in the order in accordance with subparagraph (i), comply with such other conditions (if any) as the court thinks fit to specify in the order, which conditions may include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed.
As the magistrate properly recognised, s 19B orders are exceptional in nature. They were so described in Matta v Australian Competition and Consumer Commission [2000] FCA 729 [3] (French J as he then was). In other cases they have been variously described as:
•'rare' (Ulf Weller (1988) 37 A Crim R 349; McInnes v Global Imports Pty Ltd [1992] FCA 590; (1993) ASCR 56‑199),
•'unusual' (Kelton v Uren (1981) 27 SASR 92; (1981) FLR 232),
•'atypical' (O'Brien v M R Norton‑Smith Pty Ltd [1995] TASSC 78; (1995) 83 A Crim R 41); (Paterson v Fenwick [1994] ACTSC 25; (1994) 115 FLR 462) or
•'special or singular' (Uzanski v Searle (1981) 26 SASR 388; (1981) 52 FLR 83).
In determining whether it is open to make a s 19B order a court must first consider whether there is information that falls under any of the criteria listed in s 19B(1)(b)(i), (ii) or (iii). If there are, it is then necessary for the court to consider whether, having regard to those matters, it is inexpedient to inflict any punishment or to inflict only nominal punishment or to release the offender on probation without recording a conviction.
In Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257 (Windeyer J) in considering a similarly worded statutory provision said:
That means, I think, that the magistrate must be of opinion that the exercise of the power is expedient because of the presence and effect of one or more of the stated conditions, namely character, antecedents, age, health or mental condition. One of these by itself, or several of them taken together, must provide a sufficient ground for a reasonable man to hold that it would be expedient to extend the leniency which the statute permits. The Act speaks of the court exercising the power it confers 'having regard to' the matters it states. I read that as meaning more than merely noticing that one or more of them exists. Its, or their, existence must, it seems to me, reasonably support the exercise of the discretion the statute gives. They are not mere pegs on which to hang leniency dictated by some extraneous and idiosyncratic consideration. But they are wide words. None of the matters they connote is necessarily to be regarded in isolation from the others, or apart from the whole of the circumstances of the offender and the offence (275 - 276)
See also Nelson v Quinn [2001] WASCA 297.

Contentions on this appeal

In the present case, the appellant says that the circumstances of the appellant and Mr D were materially the same. It is also submitted that the factors favouring a s 19B discharge were so numerous and compelling as to make a refusal of such an order in the particular circumstances of the appellant an error in the exercise of discretion.
The respondent replies by saying that there were a number of significant differences between the case of the appellant and that of Mr D. These include that Mr D had not initially intended to land at Dampier and only did so due to unforeseen weather conditions and sickness of a crew member. It is also submitted that Mr D did not suggest that he was unaware of his obligations and, indeed, it was put in mitigation that he had been sailing in ocean‑going yachts for some 40 years and had twice before sailed in the Fremantle to Bali race. This was said to contrast unfavourably with the appellant who, whilst inexperienced as an ocean‑going yachtsman, had said when interviewed that he had not thoroughly read the information pack provided at the commencement of the race. There was also said to be a distinction in regard to possible consequences. The magistrate accepted that in Mr D's case a conviction would have a likely adverse impact on his future business activities, whereas she did not accept that there would be similar consequences for the appellant's employment.
In any event, the respondent submitted that the appellant had failed to establish that the refusal of a s 19B discharge in the circumstances of the appellant's case was an outcome that could not properly have been reached in the exercise of sentencing discretion. The respondent submitted that such a refusal was open when regard was had to the nature of the offence, the circumstances in which it was committed and the personal circumstances of the appellant.

Was a s 19B discharge open here?

In this case the magistrate accepted that the appellant was a person of good character. This opened the door to the possibility of a s 19B discharge. However, it did not require that such an order be made. The criteria in s 19B(1)(b) are prerequisites for the exercise of discretion but they do not compel a particular conclusion. Once one or other of those criteria has been met the magistrate must then consider whether it is inexpedient to inflict any punishment, or any punishment other than a nominal punishment.
It is clear in this case that the magistrate appreciated that it was open for her to consider whether a s 19B order should be made. There is no suggestion that her Honour erred by failing to consider a s 19B order; rather, the error is said to be one that occurred in the exercise of the discretion.
As to the extent that the offence in this case was trivial, her Honour noted the purpose and importance of border control provisions. Whether that fact alone addresses the question might be doubted. Whether an offence is trivial, or the extent to which it is or is not, depends as much on the circumstances as the nature of the offence. That is particularly so in respect of offences that can be committed in a wide variety of circumstances.
As to whether the offence was committed in extenuating circumstances, her Honour made reference to the failure of the VHF radio and to the admission by the appellant to Customs officers that he had failed to familiarise himself with the information pack. I will return to these factors later in these reasons. It should be noted that extenuating circumstances in s 19B(1)(b)(iii) must be circumstances which excuse, to some appreciable degree, the commission of the offence: O'Sullivan v Wilkinson [1952] SASR 213, 218 and O'Brien v M R Norton‑Smith (131). Such circumstances must contribute in some causative way to the offending conduct: Scott v The Chief Executive Officer of Customs [2012] WASC 203 [20].
The factors that are important in deciding whether an order under s 19B should be made for offences under the Customs Act were considered in Lanham v Brake (1983) 34 SASR 578; (1984) 52 ALR 351, 585 (Cox J). They include seriousness and prevalence of such offences, the difficulty in detection, the consequent need to impose deterrent penalties and the fact that s 19B orders should be reserved for cases exhibiting exceptional features. General deterrence in this area has also been emphasised in Hayes v Weller (1988) 50 SASR 182; (1988) 93 FLR 64 and Stark v Plant [2010] WASCA 74.

Disposition of the appeal

Offences of this nature are potentially serious. The maximum penalty for each of the offences is a fine of $6,600. The effectiveness of Australia's border controls depend not only upon enforcement but upon compliance. Australia has managed to remain free of many diseases by maintaining rigorous border controls. That is only one of the risks. Border controls are also required to guard against evasions of duty, infringements of immigration laws and the importation of narcotics and other prohibited imports. There was, of course, no suggestion that any of those risks existed in this case. However, the potential for those risks underlines the importance of these provisions.
The range of circumstances in which these offences can be committed is wide. Factors that may be relevant in assessing the seriousness of an offence of this type can include:
•the size and type of the vessel,
•the knowledge and experience of the master,
•whether any attempts were made to comply,
•what reasons there are for non‑compliance, and
•the nature of any particular risks and whether those risks were realised.
The last factor may encompass consideration of the place of departure overseas and the point of arrival in Australia.
The 96 hour notification requirement is of particular significance in respect of an entry into Australia from overseas at a location where Custom officers are not ordinarily in attendance. Presumably one of the reasons for the length of this notification requirement is to enable Customs officers to be in attendance. In this case, there was no Customs officer in Dampier at the time that the appellant's yacht arrived.
There was no information as to the prevalence of this offence. However, I note that in Mr D's case the prosecutor said that these types of prosecutions do not often arise in Western Australia. There was also a reference to penalties being imposed in similar cases in Queensland of between $1,000 and $1,500 on each charge. But how common the offences were in Queensland was not apparent. In any event, the limitations on the usefulness of such information without knowing the particular circumstances of other cases was commented on in Hili.
As the magistrate noted, these offences are ones of strict liability. Accordingly, the offence does not require proof of any fault element. However, that does not mean that the offender's state of mind is not a relevant consideration for the purposes of sentencing. An intentional breach of the notification requirements would clearly be more serious than one that occurred due to ignorance or in extenuating circumstances. In fact, intentional breaches are an aggravated form of the offence and attract a higher maximum fine.
In the present case, there was no suggestion that the appellant had wilfully failed to comply with his obligations. There was a suggestion in the statement of facts that the appellant had admitted to failing to properly read the information pack. However, it would seem from the fact that he did make contact with the Dampier Harbour Master and asked that Customs be informed that he was aware to some extent of his notification requirements. It should also be noted that the appellant told Customs officers that the reason that he had not made an earlier notification was that his radio was inoperative. This suggests that he had intended to make communication earlier but was unable to do so due to equipment failure.
As to the suggested inconsistency between the outcome in the appellant's case and that of Mr D, the significance depends upon whether the cases were materially similar and whether the different outcomes can be reconciled as both being within the proper range of discretion. Whilst there are some differences between the two cases, in my view the similarities are more striking and more significant than those differences.
In both cases the VHF radios failed and alternative communication methods had to be used. In both cases the alternatives available were satellite telephones that did not have sufficient range facility to allow notification by the required time. In both cases there had been a belief that the VHF radio was operational on leaving Bali and could be used for the purposes of notification. In both cases it only became apparent that the VHF radios were not operating correctly after leaving Bali for Australia. In both cases efforts had been made to contact Customs using alternative means and some notification had been given, though it was less than was required. In both cases the appellants were mature men with no prior criminal records and who pleaded guilty at the first available opportunity.
As to the suggested differences, they are not material when considered in more detail. The fact that Mr D was not intending to make landfall at Dampier when he left Bali has no real significance when it is appreciated that given that his VHF radio was faulty he would have been unable to comply with his notification requirements whatever his port of arrival. Whilst Mr D said that the reason he came to port at Dampier was to ensure the safety of his vessel and crew, this was not given as the reason for the failure to comply with the notification requirement.
As to the suggestion that the appellant could have used other means to notify Customs before departing Bali, this could equally have been said of Mr D. In any event, the facts were that the appellant left Bali on 16 May 2011 and believed that his VHF radio was operating properly at that time. On that basis, given he did not arrive in Dampier until 23 May 2011, he would have had no reason to think that he would be unable to comply with the notification requirement by using his VHF radio during the return voyage.
As to the impact that a conviction would have, the information in regard to Mr D was only that a conviction may have some impact on his ability to do business overseas. It was a possibility only, unsupported by evidence. In any event, whilst the consequences of a conviction may be a relevant consideration, it is important that this consideration not be given disproportionate weight. There may be a danger that too much emphasis on consequences will produce unequal treatment and allow those whose positions or employment are more likely to be adversely affected to more readily obtain a s 19B discharge. On the hearing of the appeal, counsel for the respondent accepted that whilst the consequences of a conviction were a relevant consideration, it was not one that in itself could justify a different outcome.
Notwithstanding the striking similarity of the appellant's case and that of Mr D and that both cases were dealt with by the same magistrate, there was no reference to Mr D's case when the appellant came to be dealt with. Accordingly, it is not apparent whether the magistrate recalled the earlier case and, if her Honour did, on what basis she considered that a different outcome was justified.
The matter that the magistrate appears to have most emphasised in both cases was the consequences of conviction. In respect of the appellant, the magistrate said that she did not think that a s 19B discharge was 'necessary'. This strongly suggests that the consequences were determinative of the different outcome. However, in my view, for the reasons earlier stated, that was not a proper basis on which to distinguish between the appellant and Mr D. In both cases adverse consequences were raised only as a possibility. It may often be difficult to know what adverse consequences may flow from a conviction. It should not readily be assumed that those consequences will necessarily be more adverse for the Chief Executive Officer of a multi‑national business than for a man who drives a bus for children with special needs.
In my view, the different outcomes of these two materially similar cases supports a conclusion that the magistrate's discretion miscarried. That difference is, however, only one factor to take into account. The difference does not necessarily resolve which of the two outcomes was correct. Therefore, it is necessary to go on to consider whether, in all of the circumstances, the magistrate's conclusion that a s 19B discharge should not be granted to the appellant was in error.
In this case, the appellant's good character was unquestioned. In terms of the triviality of the offence, whilst the importance of the offence provision is undoubted, this was an offence that was at the less serious end of possible such infringements. As to extenuating circumstances, in my view, those circumstances were clear and compelling. The existence of those factors all pointed to the grant of a s 19B discharge. In fact, in my view, in the particular circumstances of this case, that was the only appropriate outcome. Furthermore, for the appellant to be denied such an outcome in circumstances that were materially the same as those of Mr D is so inconsistent as to give the appearance of unfairness.
For those reasons, leave to appeal will be granted, the appeal allowed, the sentence imposed by the magistrate set aside and an order under s 19B of the Crimes Act 1914 granted. The orders made by the magistrate in regards to costs will remain unaffected.

Orders

1.Leave to appeal is granted;
2.the appeal is allowed;
3.the sentence imposed by the magistrate on charges PE 8489/12 and PE 8490/12 is set aside; and
4.an order under s 19B(1)(c) of the Crimes Act 1914 (Cth) is granted;