Young v Brown
[2003] TASSC 42
•26 June 2003
[2003] TASSC 42
CITATION: Young v Brown [2003] TASSC 42
PARTIES: YOUNG, Murray
v
BROWN, Constable Graeme Maxwell
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 31/2002
DELIVERED ON: 26 June 2003
DELIVERED AT: Launceston
HEARING DATE/S: 3 April 2003
JUDGMENT OF: Crawford J
CATCHWORDS:
Primary Industry - Fish - Offences - Other cases - Special penalty - Making a statement knowing it to be false and misleading - Whether offence relates to the taking or possession of fish.
Living Marine Resources Management Act 1995 (Tas), ss263, 267.
Glover v Zouroudis (1990) 54 SASR 200; Cutting v Glover (1987) 135 LSJS 35, considered.
Aust Dig Primary Industry [35]
REPRESENTATION:
Counsel:
Applicant: D G Grey
Respondent: F C Neasey
Solicitors:
Appellant: Zeeman Kable & Page
Respondent: Director of Public Prosecutions
Judgment ID Number: [2003] TASSC 42
Number of paragraphs: 15
Serial No 42/2003
File No LCA 31/2002
MURRAY YOUNG v CONSTABLE GRAEME MAXWELL BROWN
REASONS FOR JUDGMENT CRAWFORD J
26 June 2003
Before a magistrate, the applicant pleaded guilty to two charges which were as follows:
1On or about 4 October 2001 at Ansons Bay, he gave a copy of a Commercial Abalone Dive Docket - Greenlip Zone No 28997 to a fisheries officer, stating in that document that on that day he had landed 358 kilograms of greenlip abalone, when he knew that statement to be false or misleading, contrary to the Living Marine Resources Management Act 1995 ("the Act"), s263(a).
2That on the same day and at the same place he gave the same document to the same fisheries officer in which he had made the same statement and he omitted from that statement that he had landed that day an additional 31 greenlip abalone weighing approximately 14.45 kilograms, knowing that without that matter the statement was false or misleading, contrary to the Act, s263(b).
On each charge he was fined $2,750. A special penalty of $4,340 was also ordered on the first charge. It was calculated by multiplying the number of abalone, 31, by $140. A total of $9,840 was therefore payable by the applicant. The learned magistrate made no mention of convicting the applicant, but the record made by the court states that he was convicted of both counts.
The facts upon which the penalties were imposed were as follows. The fisheries officer, who was a police officer, stopped the applicant when he was driving a motor vehicle towing a boat. He produced a commercial abalone diver's docket for greenlip abalone that showed he had fished and caught 358 kilograms of greenlip abalone. As a result of catching that quantity he believed that he had exhausted his quota for the resource. Those abalone had been sold to Adelaide Bay Seafoods, a licensed processor I presume. Police climbed into the boat and in some fish bins located another 31 greenlip abalone weighing 14.45 kilograms. Upon being asked about them he said "they are some for home, they are broken", but he admitted they had been caught over his quota. He admitted also that he knew he was committing an offence with regard to those excess abalone. It was an admitted fact before this Court that although he believed that he had filled his quota and that the fish in the boat were in excess of the quota, he was mistaken. The offences charged did not arise out of his unlawful taking of those fish or out of his unlawful possession of them. His offences concerned the incorrect statement by him in the diver's docket he produced to the officer, concerning the amount of fish he had landed. The prescribed penalty for each offence was a fine not exceeding $50,000.
In the course of a plea in mitigation by the applicant's counsel, the learned magistrate expressed concern that there were two charges that virtually alleged the same thing. Essentially, one alleged making a false statement and the other alleged failing to make a true statement. His Worship said that whilst he would impose a separate penalty on each charge, the total amount of the penalty would reflect what he believed was the appropriate penalty upon the complaint as a whole. By fining the applicant $2,750 upon each charge, he was therefore indicating that he considered that $5,500 was the appropriate penalty for the applicant's offending behaviour. The special penalty of $4,340 was fixed as if there was only one count, that is to say, it was not doubled because there were two counts. Counsel for the applicant did not submit to the learned magistrate that one of the two charges should be dismissed for duplicity.
At the hearing of the motion to review, which originally attacked only the amount of the fine as being manifestly excessive and beyond the applicant's ability to pay, a third ground of review was added alleging error on the part of the learned magistrate by convicting and sentencing the applicant on the second count, when in essence it duplicated the first count. It was common ground that such an error was made and that the appropriate course I should take is to set aside the conviction on count 2 and the sentences imposed on both counts and resentence the applicant on count 1. Section 263 provides that when a person gives any document or states anything to a fisheries officer, the person must not –
(a)make a statement knowing it to be false or misleading; or
(b)omit any matter from a statement knowing that without that matter, the statement is false or misleading.
What the applicant did contrary to law was to untruthfully state in the docket that he had landed 358 abalone when in fact he had landed 389 abalone. Essentially both charges alleged that. Clearly he should only have been convicted of one of the charges. A person should not be convicted of two different offences in respect of the same or substantially the same facts, where the ingredients of the offences are effectively the same. Pearce v R (1998) 194 CLR 610; R v O'Loughlin; ex parte Ralphs (1971) 1 SASR 219; Travers v Wakeham (1991) 54 A Crim R at 205. Accordingly there will be orders that the conviction and sentence on the second count on complaint 9705/02 are set aside and the charge is dismissed. On the first count it is ordered that the sentence is set aside.
It is necessary for me to impose a fresh sentence on the first count. I will do so upon the basis of facts provided to the learned magistrate together with further information provided to me. The applicant's quota as a diver was fixed upon the basis of the weight of fish caught. He had caught a quantity of abalone and brought them to the shore to unload and weigh them. It was then that he came to mistakenly believe that he had filled his quota and had possession of 31 abalone more than he should have done. His obligation was to dispose of the excess fish back into the ocean within 50 metres of the landing point. His dilemma was that it was a sandy area and not a rocky area, so that the fish would not have survived if he had complied with his obligation. He decided to take them home for himself and to insert the false information in his diver's docket.
The learned magistrate was informed that the applicant was 54 years of age, married with four children, two of whom were nine and 21 years old respectively and still living at home. The applicant had been diving for some 4½ years, although prior to that he had dived for six to seven years, presumably followed by a gap in time. His taxable income in the financial year that ended five months before the imposition of the sentence was $33,000. Counsel said that the applicant did not in fact own a diver's licence or own a quota. He leased the licence and purchased the quota on an annual basis. He earned $5 per kilo of abalone caught and paid $10,000 annually by way of a fee to the owner of the licence and quota. His annual taxable income of $33,000 calculated as $635 gross per week and $507 per week after tax. Out of that sum he paid home mortgage instalments of $130 per week on a $70,000 loan. (I was informed by counsel that the most recent valuation of the applicant's home was $156,000.) He paid $200 per week for groceries for the family, $43 per week for power and telephone and $110 per week for fuel and incidentals. Counsel summed it up by saying that the expenses amounted to $483 per week leaving a surplus for the applicant of $24 per week. Counsel said that the applicant was recovering from bankruptcy, having been discharged some five years earlier. He had been struggling. Counsel asked the learned magistrate to take those matters into account when assessing the general penalty. Counsel informed me that the applicant's boat was worth $15,000.
The applicant had a relevant record for prior offences. Counsel attempted to lessen their impact by explaining their circumstances. The offences, with counsel's explanations, were:
1In 1974 the applicant was fined $50 and ordered to pay a special penalty of $20 for possessing undersize fish. Counsel said that the offence involved two fish.
2In 1984 the applicant was fined $1,240 for using an unlicensed fishing boat, possessing 35 undersize abalone, possessing undersize male crayfish, taking female crayfish out of season, taking female crayfish in spawn, taking crayfish commercially without a licence, not having a measuring device, failing to replace undersize abalone and having crayfish on an abalone boat. Counsel explained that the charges relating to undersize abalone arose because of what was a common practice at the time, which involved bringing the abalone to the boat where the deckhand would measure them and put aside undersize fish until the diver returned and put them back on the ocean floor.
3In 1986 the applicant was fined $150 for possessing crayfish on a boat registered for abalone. Counsel said that the offence related to one fish.
4In 1987 the applicant was fined $250 for failing to complete a record book. Counsel asserted that it was a minor offence.
5In 1993 the applicant was fined $200 on each charge of diving without a licence, commercially fishing without a licence and selling fish without a fisherman's licence (two charges). He was also fined $250 for using an unlicensed fishing boat. Counsel said that the offences arose out of the taking of periwinkles.
6In 1994 the applicant was fined $40 and ordered to pay a special penalty of $10 for possessing undersize abalone. Counsel explained that only one fish was involved. A conviction was recorded for diving without a licence.
7On 27 September 2000 the applicant was fined $100 and ordered to pay a special penalty of $1,260 for taking undersize greenlip abalone. Counsel explained that the offence related to nine fish that were below the minimum legal size.
At the hearings before the learned magistrate and this Court it was accepted that the special penalty provisions of the Act, s267(1), applied to the case. Counsel agreed before me that in addition to any fine I may impose on count 1, I must also impose, as the learned magistrate was obliged to do and in fact did, a special penalty of $4,340, and I should re-impose the order that the applicant pay costs of $37.65. Counsel for the applicant submitted to me that when fixing the fine on count 1, I should have regard to the special penalty of $4,340 that had to be imposed in any event, and that I should tailor the fine to one appropriate to both the applicant's unlawful conduct and his capacity to pay. See Maynard v White unreported 108/1994. Counsel further submitted that in an appropriate case, the only judicial response reasonably open may be to do no more than impose the special penalty.
Subsequent to the hearing, when considering what penalty I should impose, I had regard to s267. It appeared to me that its special penalty provisions did not in fact apply to the offence committed by the applicant. At my invitation, the parties submitted written submissions about the matter and the applicant has applied to amend the grounds of the motion to review, by adding a ground that the learned magistrate erred in imposing a special penalty. The respondent consented to the amendment, but I have concluded that it is unnecessary for the amendment to be made, for at this stage of the proceedings I have upheld the motion to review and am exercising my own sentencing discretion as to the penalty that should be imposed by this Court.
Section 267(1) provides that on a finding of guilt for an offence under the Act or regulations or rules made under it "relating to the taking or possession of fish", a court must impose a special penalty equal to 10 times the value of the fish. The question that is raised by that provision is whether the applicant's offence under s263(a), was one relating to the taking or possession of fish.
The elements of the offence, as expressed in the section, in no way relate to the taking or possession of fish. So far as concerns the offence committed by the applicant, they relate to the making of a false or misleading statement to a fisheries officer. However, it was submitted for the respondent that for the special penalty to apply, there is no need for the essential elements of the offence to relate to the taking or possession of fish and that all that is required is that in order to prove the existence of the elements of the offence, there needed to be proved that fish had been taken or possessed. In my view, such an interpretation puts a strain on the language of section 267. It requires the special penalty to be applied to an offence that relates to the taking or possession of the fish. The offence of which the applicant was charged did not relate to that at all, notwithstanding that his taking of fish may have formed part of the facts that the prosecution needed to prove in this case. There are many other offences that do relate to the taking or possession of fish. See for example ss262 and 264.
I am grateful to counsel for the respondent for drawing to my attention an authority that is contrary to what he submitted. In Glover v Zouroudis (1990) 54 SASR 200, Jacobs J was concerned with a special penalty provision that applied when a person was convicted of an offence "involving the taking of fish". At 204, his Honour held that the provision did not apply because the taking of fish was not an essential ingredient of the offence he was considering. To apply an example provided by his Honour, in this case the offence would nevertheless have been committed by the applicant if he had made the same statement to the fisheries officer, that is to say if he had stated that he had landed 358 kilograms of greenlip abalone, whereas in fact he had put to sea for the purpose of fishing and had returned empty-handed. Jacobs J applied the reasoning of Olsson J in Cutting v Glover (1987) 135 LSJS 35 that the draconian penalties provided by such a special penalty provision are only to be exacted when the taking or in this State, possession of fish is an essential ingredient of the offence. As Jacobs J pointed out, there are many offences which are committed whether or not fish are taken or possessed. The present offence is an example of that. I hold that the words "relating to the taking or possession of fish" in s267(1) should be strictly construed. The special penalty provisions do not apply to the applicant's offence.
I turn finally to the fine that should appropriately be imposed for the applicant's offence in count 1. There are no additional facts to which I should refer. His income is relatively modest and I pay regard to what was said by his counsel about it and his outgoings. He is not lacking in assets, however. The equity in his house is over $80,000 and he owns his boat. There are three particular aspects of the case that are significant. The first is that the offence was deliberate. The second is that it was committed by a professional fisherman against a law that applied to him in the carrying out of his occupation. The third is that he has a not inconsiderable number of prior convictions for offences against fisheries laws. Having regard also to the $50,000 maximum penalty that is prescribed, I consider that a fine of $5,000 is appropriate.
The following orders will be made:
1That the order made in a court of petty sessions at Launceston on 27 November 2002, whereby the applicant was convicted of count 2 on complaint 9705/02, is set aside.
2The sentences, including the order for costs, imposed with respect to counts 1 and 2 on that complaint, are also set aside.
3On count 1 the applicant is fined $5,000 and ordered to pay costs of $37.05.
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