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  4. R v White & Sao Pedro Fishing Pty Ltd; ex parte Director of Public Prosecutions (Cth) - [2017] QCA 140

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R v White & Sao Pedro Fishing Pty Ltd; ex parte Director of Public Prosecutions (Cth)[2017] QCA 140

R v White & Sao Pedro Fishing Pty Ltd; ex parte Director of Public Prosecutions (Cth)[2017] QCA 140

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v White & Sao Pedro Fishing Pty Ltd; Ex parte Director of Public Prosecutions (Cth) [2017] QCA 140

PARTIES:

In CA No 204 of 2016:

R

v

WHITE, Christopher Michael

(respondent)

EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

(appellant)

In CA No 205 of 2016:

R

v

SAO PEDRO FISHING PTY LTD

(respondent)

EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

(appellant)

FILE NO/S:

CA No 204 of 2016

CA No 205 of 2016

DC No 140 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeals by Director of Public Prosecutions (Cth)

Application for Leave to Adduce Further Evidence

ORIGINATING COURT:

District Court at Townsville – Date of Sentence: 7 July 2016

DELIVERED ON:

21 June 2017

DELIVERED AT:

Brisbane

HEARING DATE:

9 February 2017

JUDGES:

Gotterson and Morrison JJA and Bond J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

  1. The respondents’ application for leave to adduce further evidence is refused.
  2. The appeals are dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the respondents pleaded guilty to offences concerning carrying out commercial fishing activities in a Commonwealth reserve – where the respondents were fined – where the Commonwealth Director of Public Prosecutions appeals from both sentences – whether the sentencing judge erred in finding that the respondent in CA No 204 of 2016 was negligent, not reckless

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondents pleaded guilty to offences concerning carrying out commercial fishing activities in a Commonwealth reserve – where the respondents were fined – where the Commonwealth Director of Public Prosecutions appeals from both sentences – whether the sentences imposed were manifestly inadequate

Crimes Act 1914 (Cth), s 4B, s 16A, s 16C, s 17A

Criminal Code (Cth)

Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 3, s 354A

Environmental Reform (Consequential Provisions) Act 1999 (Cth)

Fisheries Management Act 1991 (Cth)

Great Barrier Reef Marine Park Act 1975 (Cth)

National Parks and Wildlife Conservation Act 1975 (Cth)

Berceanu v Boltons Real Estate Pty Ltd [2004] QDC 18, cited

Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10, cited

Minister for Sustainability, Environment, Water, Population and Communities v Woodley [2012] FCA 957, cited

R v McIntosh (unreported, 30 May 2016, Robertson DCJ), cited

R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited

Smith v Galt [2013] QDC 117, cited

COUNSEL:

S M McNaughton SC, with J Noud, for the appellant

The respondent in CA No 204 of 2016 appeared on his own behalf and for the respondent in CA No 205 of 2016

SOLICITORS:

Director of Public Prosecutions (Commonwealth) for the appellant

The respondent in CA No 204 of 2016 appeared on his own behalf and for the respondent in CA No 205 of 2016

  1. GOTTERSON JA:  I agree with the orders proposed by Bond J and with the reasons given by his Honour.
  2. MORRISON JA:  I have read the reasons of Bond J and agree with those reasons and the orders his Honour proposes.
  3. BOND J:  On 7 July 2016, Sao Pedro Fishing Pty Ltd (Sao Pedro Fishing) and Christopher Michael White pleaded guilty to offences concerning carrying out commercial fishing activities in a Commonwealth reserve in November 2013.  They were convicted and fined.  The Commonwealth Director of Public Prosecutions has appealed from the sentences imposed.  For the following reasons, the appeals should be dismissed and an application for leave to adduce further evidence made by the respondents should be refused.
  4. As at November 2013, the Sao Pedro was a longline fishing vessel owned by Sao Pedro Fishing.  Sao Pedro Fishing was a family business, of which all of the shares were owned by Mr White and his wife.  Mr White was the sole director of the company and the skipper of the Sao Pedro.
  5. On 12 November 2013 Mr White took the Sao Pedro out of Gladstone on a commercial fishing trip.  Sao Pedro Fishing had leased relevant fishing rights under the Fisheries Management Act 1991 (Cth) for the 2013 season and was targeting tuna in the area of the Coral Sea.
  6. The Sao Pedro’s method of longline fishing involved the use of a continuous monofilament longline of about 59.2km which had 1800 baited hooks attached to it and which was set to float deep below the surface of the water, suspended by buoys that sat on the surface.  The setting of the line could take hours.  Once set, the line did not come into contact with the seabed and would drift with the currents.  The line was later hauled in with its catch, a process that could also take hours.
  7. During the trip, Mr White completed and signed logbook entries which identified for each day:
    1. the length of the longline and number of hooks attached to it;
    2. the depth at which the longline had been set;
    3. the time taken for the longline set and the longline haul in;
    4. the location for the end of the longline set and the location for the start of the longline haul in; and
    5. the number and weight of fish caught.
  8. After a 13 day voyage, the Sao Pedro returned to Gladstone on 25 November 2013, with a total catch of some 12,119kg, which was sold for a gross return of $42,947.58.  The evidence does not reveal what proportion of the gross return comprised profit.  However, it cannot have been much: the Sao Pedro was crewed by Mr White and three others, Sao Pedro Fishing did not make a profit in that year, and Mr White’s group certificate revealed that he earned only $27,000 in the 2013 tax year and $18,000 in the following year.
  9. Lihou Reef National Nature Reserve (Lihou Reef Reserve) is located in the Coral Sea.  It is a large and complex reef system containing 18 sand cays within an area of 8,437km2.  It was proclaimed on 16 August 1982 under the National Parks and Wildlife Conservation Act 1975 (Cth) and continued in force under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), pursuant to Item 3 of Schedule 4 to the Environmental Reform (Consequential Provisions) Act 1999 (Cth).
  10. Lihou Reef Reserve has been incorporated into a larger Marine National Park Zone within the 989,842km2 Coral Sea Commonwealth Marine Reserve (Coral Sea Reserve).  The Coral Sea Reserve was proclaimed on 16 November 2012 and came into effect the following day.  The result is that the former Lihou Reef Reserve is to be regarded as part of a Commonwealth reserve within the meaning of the EPBC Act.
  11. The EPBC Act creates the regulatory regime which is aimed at preserving the importance, amongst other things, of Commonwealth reserves.  The objects of the EPBC Act are set out in s 3 and relevantly include:
    1. to provide for the protection of the environment, especially those aspects of the environment that are matters of national environmental significance;
    2. to promote ecologically sustainable development through the conservation and ecologically sustainable use of natural resources;
    3. to promote the conservation of biodiversity;
    4. to provide for the protection and conservation of heritage;
    5. to promote a co-operative approach to the protection and management of the environment involving governments, the community, land-holders and indigenous peoples; and
    6. to assist in the co-operative implementation of Australia’s international environmental responsibilities.
  12. Section 354A(5) of the EPBC Act provides that a person commits an offence if the person takes an action for a commercial purpose in a Commonwealth reserve.  Longline fishing falls within the definition of taking an action.  Strict liability attaches to the element that the action was taken in a Commonwealth reserve: s 354A(7).  For a natural person, the maximum penalty is 2 years imprisonment or a $170,000 fine (1,000 penalty units) or both: s 354A(5).  For a body corporate, the maximum penalty is up to 5 times the maximum for a natural person, namely $850,000: s 354A(5) and s 4B(3) of the Crimes Act 1914 (Cth).
  13. Under the EPBC Act, any activity in a marine reserve requires approval from the Director of National Parks during the period between proclamation of the reserve and the implementation of a management plan.  While the Director has granted a number of approvals for activities permitted in the Coral Sea Reserve to continue, transitional management arrangements apply until a management plan is in place.  With respect to the former Lihou Reef Reserve, the transitional arrangements maintain the same arrangements that were previously in place.  Fishing remains prohibited, as it has been since 1982.
  14. The Department of Environment (Department) is responsible for enforcement in Commonwealth Marine Reserves such as the former Lihou Reef Reserve.  The Department has an agreement with the Australian Fisheries Management Authority (AFMA) pursuant to which AFMA provides a monthly analysis of data, where data indicates that fishing activity may have occurred within a Commonwealth Marine Reserve.  For this purpose, AFMA uses a Vessel Monitoring System (VMS), which is a system in which units on board fishing vessels generate position reports to AFMA.  The Sao Pedro had been fitted with such a unit.
  15. On 15 November 2013, an automated alert triggered by AFMA’s VMS system notified AFMA in real time that the Sao Pedro had been tracked within the Coral Sea Reserve.  In turn, and presumably in accordance with its enforcement agreement with the Department to provide a monthly data analysis, AFMA provided VMS data relating to the Sao Pedro to the Department between 17 and 19 December 2013.  After receipt of data from AFMA, the Department commenced an investigation.  It found that the logbook entries which had been completed at the time by Mr White were predominantly consistent with the VMS data, and together showed that the Sao Pedro carried out fishing activities within the former Lihou Reef Reserve on four occasions.
  16. First, on 16 November 2013, the logbook entry indicated that the longline was set from 0715 to 1030 and hauled in from 1700 to 0250.  The depth was between 50m and 300m.  The location declared in the logbook as the end of the longline set and the start of the haul of the line was inside the reserve.  The VMS data indicated that the vessel commenced the longline “shot” outside of the reserve, before then travelling inside the reserve.  The maximum incursion into the reserve, based on VMS records, was approximately 2.3km.  2,075kg of the fish caught that day were kept.
  17. Second, on 20 November 2013, the logbook entry indicated that the longline was set from 0716 to 1035 and hauled in from 1700 to 0210.  The depth was between 50m and 300m.  The location declared in the logbook for the start of the longline set was inside the reserve.  The VMS data indicated that the vessel was inside the reserve for almost the entirety of this time, with the vessel exiting the reserve for a short period of time before re-entering the reserve.  VMS data revealed that the maximum distance the Sao Pedro entered the reserve on that date was approximately 6.5km.  1,028kg of the fish caught that day were kept.
  18. Third, on 21 November 2013 the logbook entry indicated that the longline was set from 0715 to 1030 and hauled in from 1700 to 0300.  The depth was between 50m and 300m.  The location declared in the logbook for the start of the longline set was inside the reserve.  The VMS data indicated that the vessel was inside the reserve for almost the entirety of this time, with the vessel exiting the reserve for a short period of time before re-entering the reserve.  VMS data revealed that the maximum distance the Sao Pedro entered the reserve on that date was approximately 10km.  1,270kg of the fish caught that day were kept.
  19. Fourth, on 22 November 2013 the logbook entry indicated that the longline was set from 0715 to 1035 and hauled in from 1700 to 0245.  The depth was between 50m and 300m.  The location declared in the logbook for the start of the longline set was inside the reserve.  The VMS data indicated that the vessel was inside the reserve for almost the entirety of this period, with the vessel exiting the reserve for a short period of time before re-entering the reserve.  The VMS data revealed that the maximum distance the Sao Pedro entered the reserve on that date was approximately 10.5km.  1,275kg of the fish caught that day were kept.
  20. The total weight of fish caught on the 4 days on which the Sao Pedro conducted some fishing activities within the reserve was 5,648kg.  It is impossible to calculate what portion of the catch on each of the days in which the Sao Pedro fished within the reserve was actually caught within the reserve.  If all 5,648kg had been caught in the reserve that would have amounted to about 46.6% of the total catch for the 13 day voyage, which translates to about $20,014 out of the gross return of $42,947.58.
  21. Mr White participated in a record of interview with the Department’s investigators on 6 June 2014.  The admissions he made reveal that he co-operated with them.  Amongst other things, he acknowledged the following:
    1. He was an experienced commercial fisherman, aged 43 at the time of the offending.  He had been fishing in New Zealand since he was 16, and in Australia since he was 26.
    2. He was the skipper and owner of the Sao Pedro, having started the business of Sao Pedro Fishing in 2009.
    3. He maintained a set of electronic charts on the vessel and he had a set of back up electronic charts with him, in addition to paper charts for all of his ports and major areas of operation.  However, the areas into which he could not go were not plotted on his charts.
    4. He agreed, when pressed, that it was his role as a skipper to make himself conversant with restricted areas in which he was not allowed to fish, or in which fishing activities were restricted.
    5. He admitted that he was conducting commercial fishing activities on the four days in question, that he was not aware of any problems with his GPS or navigational equipment, and that he was the person who recorded the information in the logbook.
    6. When asked if he had any reason for fishing in a Commonwealth Marine Park, he said that he would have just been following the fish, and, at the time, he did not know that the area known as Lihou Reef was a marine park zone.
  22. On 11 March 2015, Mr White and his company, Sao Pedro Fishing, were served with a complaint and summons alleging four counts each (i.e. one count each for each of 16, 20, 21 and 22 November 2013) of taking an action, namely commercial fishing activities, for a commercial purpose in a Commonwealth reserve, contrary to s 354A(5) of the EPBC Act.  On 8 October 2015, they were committed for trial to the Townsville District Court.  On 24 March 2016 the indictment was presented, whereupon a plea of guilty was indicated and the matters were listed for sentence before the District Court on 7 July 2016.  The Crown accepted that the plea was to be regarded as an early plea of guilty.
  23. The facts that I have recorded above were not disputed before the sentencing judge and derive from the schedule of facts tendered by the Crown and statements made in Court by the defendants’ counsel and not disputed by the Crown.  Other material before the sentencing judge included:
    1. Evidence that neither Mr White nor Sao Pedro Fishing had any previous convictions.
    2. The defendants’ counsel informing the Court that Mr White had obtained a bachelor’s degree in aquaculture in 2001 and a postgraduate degree in marine resource management in 2004.
    3. A statement from Ms Priest, who was an officer of the Department and who outlined the environmental impact of the actions.
    4. References from other persons in the fishing industry which, amongst other things:
      1. attested to the fact that Mr White was well regarded in the industry as an honest and professional operator who sought to comply with applicable regulations and who had undertaken further studies to improve himself;
      2. suggested that the fact that AFMA constantly monitored the vessels meant that no one would intentionally breach the laws in relation to a marine park; and
      3. advised that Mr White had a wife and young child whom he supported from his fishing business and suggesting that both they and the industry would be adversely affected if Mr White was fined to an extent that he was forced out of the industry.
    5. Material from the Crown which suggested that a year prior to the offending conduct Mr White had the information available to him which should have conveyed to him the fact that the Lihou Reef Reserve was within the Coral Sea Reserve, namely:
      1. A public consultation had been held in relation to the establishment of the Coral Sea Commonwealth Marine Reserve, and a consultation paper circulated.
      2. In February 2012, Mr White had provided a submission to the Department in response to the consultation paper.
      3. The Department sent to Mr White’s email address, notified by his submission, notification of the establishment of the Commonwealth Marine Reserve in November 2012.
  24. The fundamental principle governing sentence is that stated in s 16A(1) of the Crimes Act, namely that a sentence must be of a “severity appropriate in all the circumstances of the offence”, although pursuant to s 17A(1) a sentence of imprisonment must not be imposed unless the Court is satisfied that no other sentence is appropriate in all the circumstances.  Section 16A(2) of the Crimes Act sets out a non-exhaustive list of factors that a Court must take into account when sentencing a federal offender, including, relevantly:
    1. the nature and circumstances of the offence;
    2. if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—that course of conduct;
    3. any injury, loss or damage resulting from the offence;
    4. the degree to which the person has shown contrition for the offence;
    5. if the person has pleaded guilty to the charge in respect of the offence—that fact;
    6. the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences;
    7. the deterrent effect that any sentence or order under consideration may have on the person;
    8. the deterrent effect that any sentence or order under consideration may have on other persons;
    9. the need to ensure that the person is adequately punished for the offence;
    10. the character, antecedents, age, means and physical or mental condition of the person;
    11. the prospect of rehabilitation of the person; and
    12. the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.
  25. Further to that last consideration are the terms of s 16C of the Crimes Act, which provides that before imposing a fine on a person for a federal offence, a court must take into account the financial circumstances of the person, in addition to any other matters that the court is required or permitted to take into account.
  26. The learned sentencing judge concluded that an overall fine of $10,000 was appropriate and sentenced Sao Pedro Fishing to a fine of $5,000 in respect of the four counts against it, and Mr White to a fine of $5,000 in respect of the four counts against him.  In reaching that determination, his Honour took the following considerations into account:
    1. Mr White was the guiding will and mind of the company, which was a family business he had operated for a number of years.
    2. Mr White was a 46 year old man of good character who had neither offended before nor since the events in question.  The references spoke highly of his position in the industry.  He had pursued further education relevant to the industry and set out carefully to avoid doing damage to marine life, other than to the targeted fish.
    3. Mr White worked in a very highly regulated industry in which his activities could not be kept secret or hidden from the authorities in any way.  He never sought to hide his activities in any way.  He had co-operated with investigators and accepted that it was his error which led to the offending.
    4. The protracted and slow-moving proceeding would have resulted in emotional and financial costs to Mr White.
    5. The offences were serious, because the reef is a national treasure, the marine life which inhabits it is a very important part of the reef, and the limitations on fishing are imposed to preserve the reef and the marine life for future generations.
    6. The offending occurred over a relatively short period.  If Mr White had known that he was fishing in a marine reserve he would have desisted.  The offending was better regarded as having occurred because of Mr White’s negligence rather than recklessness on his part.
    7. He noted the Crown evidence that the fishing had the potential, albeit largely theoretical, for damage to be done to sharks, turtles and other fish that might inadvertently be caught or killed.  But he concluded that it had not been shown that the offending had any real effect on the marine resources, particularly given the steps Mr White took to avoid unnecessary damage to marine and bird life while pursuing the target fish.
    8. He did not think that a firm conclusion could be reached that a substantial amount of income was derived as a result of the offending.
    9. It was necessary to balance the importance of protection of the reef and its marine resources against the nature of the offending and its consequences.
    10. He had regard to two comparable cases, namely:
      1. Smith v Galt [2013] QDC 117 per Jones DCJ, which he found significant because of its emphasis on the distinction between negligent and deliberate activity; and
      2. R v McIntosh (unreported, 30 May 2016, Robertson DCJ), which he found to be relevantly comparable and in which the offender was fined $8,000 for a single longline “shot” within a Commonwealth marine reserve.
    11. His determination of an overall penalty of $10,000 reflected his consideration of all those matters, having regard to the importance of the reef and the fact that Mr White’s criminality was not great.
  27. The Crown has appealed from the sentences imposed on Sao Pedro Fishing and Mr White.  It accepts that this Court’s discretion to vary the sentence imposed is only enlivened in the event that it demonstrates either that the trial judge erred in principle or imposed a manifestly inadequate sentence indicative of such error: Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at [62].
  28. The only specific error raised by the notices of appeal is in relation to the appeal from the sentence imposed on Mr White.  The Crown contends the sentencing judge erred in finding that Mr White had been negligent, not reckless.  Otherwise on both appeals, the Crown’s case is that the sentence was manifestly inadequate.
  29. It is convenient to consider first the alleged error in finding that Mr White had been negligent not reckless.
  30. There are some offences in the Criminal Code (Cth) in which intention, knowledge, recklessness or negligence are elements of the offence.  To that end, the Criminal Code specifies definitions of those matters: see ss 5.1 to 5.6.  However, in this case strict liability attaches to the element that the fishing occurred in a Commonwealth reserve: s 354A(7) of the EPBC Act.  The definitions of recklessness and negligence in ss 5.4 and 5.5 of the Criminal Code do not apply in terms.
  31. That does not mean that a consideration of Mr White’s degree of advertence to whether (1) the Lihou Reef was within a marine park zone (as a general proposition) or (2) that the area in which he was fishing was in a marine park zone, was irrelevant to the appropriate sentence.  It was, as both he and the Crown accept, undoubtedly relevant to an assessment of his culpability to consider whether he knew or adverted to those matters and, if not, why not.  It is in this context that the use of the terms reckless and negligent are to be assessed.
  32. The sentencing judge adverted to but rejected the Crown’s submission that Mr White’s offending should be regarded as reckless rather than negligent.  I am unable to discern any error in the fact finding of the sentencing judge in reaching this characterization.  In my view it was open to the sentencing judge to reach that conclusion.
  33. Mr White said he did not know that the area fished on the 4 days in question was within a marine park.  Indeed, he said he did not know the Lihou Reef was a marine reserve.  It was open to his Honour to accept that, notwithstanding the material to which I have referred at [23](e).  There was not the slightest suggestion of Mr White’s having made a deliberate choice to run the risk of being detected, with a view to making a profit.  In light of the VMS system, Mr White must have known that any offending was always going to be detected.  And his own logbook entries were consistent with this.  Indeed, the Crown had submitted to the sentencing judge that it was inevitable, or almost inevitable, that the offending would come to the attention of the authorities.  To my mind the evidence did not support the lack of concern as to whether the fishing was taking place in a marine park which would be necessary to justify the characterization that Mr White was being reckless as to where he set the Sao Pedro’s line.
  34. On the other hand, as Mr White admitted, it was his duty as the skipper of a commercial fishing vessel to make himself conversant, one way or the other, with the areas in which he was not permitted to fish and then to ensure he did not fish in those areas.  The offending was occasioned by a negligent failure to ensure that he had up to date charts.  Indeed he had been provided with relevant information the previous year, which he should have reviewed and which would have permitted him to act appropriately.  This evidence, and Mr White’s conduct, did support the conclusion that he had not exercised the care and skill of a reasonably competent commercial fisherman in his position, in relation to the question of ensuring he had the appropriate up to date information to inform his activities.
  35. In my view the first ground of appeal fails.
  36. I turn to consider the second ground of appeal.  In order to succeed, the Crown must persuade this Court that it should infer the existence of error.  There is no controversy about the test which must be applied in such a case.  In R v Pham (2015) 256 CLR 550, French CJ, Keane and Nettle JJ held (at [28], footnote omitted):

Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.

  1. I make the following observations.
  2. First, the considerations which were explicitly taken into account by the sentencing judge, and which I have summarized at [26](a) to [26](h) above, were all considerations which were open on the evidence before the sentencing judge (indeed no case of specific error was argued other than that raised by the first ground of appeal) and which were strong pointers towards the correctness of the sentencing judge’s conclusion that Mr White’s criminality was not great.  I mention (essentially for completeness because there is no relevant suggestion of factual error in the notices of appeal) that the Crown was critical of the learned sentencing judge forming the view that the actual harm to the environment was largely theoretical.  This conclusion was open to the trial judge in light of the fact that the evidence on which the Crown relied did not grapple with what had been contended by Mr White to be the distinguishing feature of  the method of longline fishing which he employed, namely deep set long lines.  The log book information recorded the depth at which Mr White set his long line at 50m to 300m, and Ms Priest’s statement dealt with a method of long line fishing in which longlines are set near the surface of the water.
  3. Second, the sentencing judge did not explicitly advert to Mr White’s financial circumstances and the question of the effect that any sentence or order under consideration would have on any of the person’s family or dependants.  Such material as there was touching upon that consideration also supported choosing a fine at the low end of the spectrum.  It revealed that Mr White was essentially the proprietor of a relatively new small business which supported him and his family.  The business did not seem to be making any profit during the relevant period, although it was paying him a very modest return ($27,000 in the 2013 tax year and $18,000 in the following year).  Avoiding the imposition of a crushing penalty would have been a significant consideration.  The $10,000 fine selected avoided that outcome.  I accept the Crown’s submission that a sentencing judge in this context should not impose a sentence which could be seen as merely a low risk additional cost of business.  But that consideration did not apply here.  The incurrence of the “additional cost” was inevitable, or almost inevitable, because of the VMS system.  And $10,000 was not an amount which could have been viewed by Mr White (in the context of his particular enterprise) as an acceptable cost of earning what was (at most) a gross return of $20,014 (see [20] above) and a likely net return of much less that than, even without considering the fine (see [8] above).
  4. Third, inference of error is not supported by the fact that the sentencing judge determined an appropriate fine and then split it between Sao Pedro Fishing and Mr White.  The Crown submitted that the failure to mention the fact that the maximum penalty for a corporate offender is 5 times the maximum penalty for a natural person, and the imposition of identical fines, lends weight to the submission that error must be inferred.  I reject that submission.  The explanation for the approach which his Honour took is that in a closely held family company like this, it would be important to avoid a sentence which would in substance amount to punishing Mr White twice for what was essentially the same criminal conduct: see Berceanu v Boltons Real Estate Pty Ltd [2004] QDC 18 at [24], a case to which his Honour was taken by counsel for the defendants.
  5. Fourth, the Crown submits that remarks which the learned sentencing judge twice made in relation to the operation of AFMA’s VMS system were indicative of error.  As to this:
    1. I have mentioned that the VMS unit on the Sao Pedro reported the locational data concerning the Sao Pedro to AFMA, and that an automated alert triggered by AFMA’s VMS system notified AFMA in real time that the Sao Pedro had been tracked within the Coral Sea Reserve.
    2. The learned sentencing judge had been informed that in subsequent years AFMA had been trialing a development of the VMS system such that it both monitored breaches and electronically informed the offender of the breach in real time.  He was informed that the system operated in waters off Queensland in that way at the time of the sentencing, but had not at the time of the offending.
    3. In his sentencing remarks, after describing Mr White’s co-operation with the authorities, the learned sentencing judge stated:

All of the offending occurred over a period of about a week. I think it is safe to conclude that had the state’s resources extended to contacting you to tell you of the fact that you had strayed into the prohibited area on the first occasion you did it, you would have been here talking about counts 1 and 2 only.

  1. Later, his Honour expressed the view that he thought that Mr White exhibited a “similar degree of criminality or of offending” to the offender in McIntosh, saying:

I have found some assistance in the case of McIntosh. While it concerned one shot with a long line, it exhibited a similar degree of criminality or of offending, in my view. I have already referred to the fact that your offending continued over about a week. It need not have done and the fact that it did adds little to the matter, in my view. It could easily have been notified to you and it would have stopped had it been notified to you.

  1. If his Honour had been suggesting that it was an excuse for an offender that authorities had failed to prevent offending conduct when they could have, then that would undoubtedly have been an error.  I accept the Crown’s submission that it is the responsibility of commercial fishermen to know the law and to comply with it.  It was not the responsibility of AFMA or the Department to save Mr White from the consequences of his own negligence.
  2. However, in my view, that is not how his Honour’s reasons are to be understood.  He had accepted that Mr White was a person of good reputation and standing in the industry and was of previously good character and that that the source of the four counts of offending was Mr White’s honest, albeit negligent, failure to have up-to-date charts.  He was expressing his reasons for regarding the offences on 16, 20, 21 and 22 November 2013 as essentially one course of conduct caused by the negligent omission, and therefore comparable to McIntosh. In this regard, it is material to note that in submissions, the Crown had accepted that the activity could be regarded as “really one continuing activity” and that a global penalty could be imposed in respect of all four counts.  His Honour was not regarding the conduct on 20, 21 and 22 November as excused because AFMA had not notified Mr White of the conduct on 16 November.
  3. The remarks concerning the operation of AFMA’s VMS system do not support the alleged inferential case of error.
  4. It remains to note that an application was made by Mr White, who argued the case on his own behalf, to adduce further evidence.  The application was not ruled on during the hearing of the appeal.  It is unnecessary to deal with that application in any detail.  It related to documentary evidence which was aimed at showing that AFMA could have exercised its powers in relation to the grant of the fishing rights to Sao Pedro Fishing in such a way as would either have not permitted fishing at all or would have notified the holder of the right of the boundaries of the relevant Commonwealth reserves.  Mr White was unable to explain its relevance.  In my view, the material was irrelevant for the reasons articulated at [41](e) above.  The application should be refused.
  1. Finally, it remains to consider comparable cases and the extent to which they operate as a yardstick against which to examine the proposed sentence.  The Crown conceded, correctly, that there were limited comparable sentences for offences contrary to s 354A(5) of the EPBC Act and none at an intermediate appellate level, and that the cases were of limited assistance.  It is necessary to refer only to a few cases.
  2. Our attention was drawn to remarks by Foster J in Minister for Sustainability, Environment, Water, Population and Communities v Woodley [2012] FCA 957.  As to that case:
    1. The case involved proceedings in respect of a civil penalty provision for a contravention of s 354(1)(f), in relation to illegal rock lobster fishing in Tasmania.  The section provided that a person must not take an action for commercial purpose in a Commonwealth reserve except in accordance with a management plan.  The maximum penalty for an individual was $55,000.  The penalty imposed on the vessel’s skipper, Woodley, was $13,000.  The owner of the vessel and holder of the fishing concession (Venture Fishing Co Pty Ltd, of which Woodley and his wife were the sole directors and shareholders) was also fined $65,000 (where the maximum penalty was $550,000).
    2. Foster J remarked (at [62]):

If those who contravene s 354(1) of the EPBC Act receive relatively small penalties when apprehended, there is every chance that commercial fisherman will conclude that the benefits of fishing in protected areas (given its potential for deriving significant financial rewards) far outweigh the risk of being caught committing a contravention because the risk of detection is low and the financial penalties relatively insignificant. If such conduct is undertaken the harm to the environment is likely to be significant.

  1. However, in my view Woodley is not a helpful yardstick for comparison.  The present case did not involve the risk which existed in that case and which is referred to in the quote in the previous subparagraph.  The VMS system in the present case meant that prospect of being caught was not a risk, but a virtual certainty.  Moreover Woodley knew of the existence and location of the relevant reserve and was regarded as having acted recklessly, as compared to Mr White, who did not know that the area known as Lihou Reef was a marine park zone, and was regarded as having acted negligently.
  1. The Crown provided the Court with a schedule of the sentences imposed in relation to summary matters charged under s 38BA(1) (or the previous offence provision, s 38CA) of the Great Barrier Reef Marine Park Act 1975 (Cth) (GBRMP Act).  The Crown particularly relied on the case of Smith v Galt [2013] QDC 117, in which Jones DCJ made these observations with respect to comparable GBRMP Act cases:
    1. At p 17:

The schedule of cases provided by the Commonwealth seems to be divided into broad categories. From the lower end to the upper end they are first, cases of negligence involving fines of between $3,000 and $7,500. At the upper end of the scale are those offences involving masters of motherships, cases involving dead and live fish being found in the possession of fisherman and the use of long lines. Fines for this category range from in the order of $27,500 up to $40,000.

  1. At p 19:

… I consider that for the lower level of intentional fishing, the penalty should be above the upper end of the scale for negligent fishing in a prohibited area but materially below the level imposed for those cases to which I referred dealing with deliberate breaches by masters, longlines and fishermen being apprehended with live and/or dead fish and prawns.

On balance, I consider the appropriate range for the lower level of deliberate offending or intentional offending ought be in the order of $8,000 to $15,000 for a single offence.

  1. However I do not regard the cases under the GBRMP Act, or the range discussed in Smith v Galt, to be appropriate comparables to the present case.  The cases which informed the observations made by Jones DCJ and Smith v Galt itself were not cases in which the presence of a working VMS system meant that detection was a virtual certainty.  They were cases involving offences which were much harder to detect and in which the consideration discussed by Foster J in Woodley would have been very relevant.
  2. The only relevant comparable sentence was the decision in R v McIntosh, which had been referred to by the learned sentencing judge.  I make the following observations as to McIntosh:
    1. Like the Sao Pedro, it involved a vessel carrying out longline fishing within a Commonwealth Marine Reserve.
    2. Like the Sao Pedro, the vessel had been tracked by the authorities by the use of the VMS system.
    3. Like Mr White, the skipper cooperated fully with the authorities and accepted that he was ultimately responsible for the activities of the vessel.
    4. Like Mr White, the offending of the skipper was regarded as not intentional, but unlike Mr White, the Court concluded that the skipper was reckless as to the whereabouts of the vessel.  He was working under protocol whereby an operations manager on land would direct the timing and direction of the release of longlines.
    5. Like Mr White, references demonstrated that the skipper was highly regarded within the industry and otherwise a dedicated and responsible master of a vessel.
    6. The offending involved a single long line shot.  It involved 79.5km of line and 2800 hooks, of which about 18km was cast into the reserve.
    7. 789 kg of the fish caught that day were kept.  The value of the catch was $10,296, for which the skipper was paid 10% of the value.  The Court found that it might be assumed and inferred that a catch of high order predator fish would have caused adverse impacts to the environment.
    8. The fine imposed was $8,000.
  3. In summary:
    1. McIntosh was more culpable than was Mr White.
    2. The court was prepared to draw an inference as to actual harm to the environment, whereas the learned sentencing judge in the present case regarded the harm as largely theoretical.
    3. The offending was 1 long line set partially within the reserve, which produced an unknowable proportion of 789kg of catch, and $10,296 value.
    4. In comparison, offending by Mr White involved 4 long line sets partially within the reserve, which produced an unknowable proportion of 5,648kg of catch and about $20,014 value.
    5. The degree of culpability of McIntosh suggested that Mr White’s fine should have been less than McIntosh’s fine, but the extent of Mr White’s offending (even if, for reasons already explained, one regarded the offending as essentially one continuous activity) suggested a greater fine would be appropriate.
    6. The sentencing judge balanced the countervailing considerations in favour of a modestly more significant fine, namely $10,000.
  4. Ultimately, it is clear from the sentencing remarks that, as he was obliged to do, the learned sentencing judge took into consideration personal factors unique to Mr White as well as the issues of punishment, general deterrence and denunciation.  In reaching what I think should be regarded as a relatively lenient outcome, the sentencing judge gave greater weight to the former factors than to the latter factors.  Another judge might have accorded greater weight to the latter factors and imposed a greater fine.  However, in my view, when all relevant circumstances are taken into account, the sentence cannot be said to be so lenient as to justify the inference that the exercise of the sentencing discretion miscarried.
  5. I conclude that the second ground of appeal, in each appeal, also fails.
  6. The following orders should be made:
    1. The respondents’ application for leave to adduce further evidence should be refused.
    2. The appeals should be dismissed.
Close

Editorial Notes

  • Published Case Name:

    R v White & Sao Pedro Fishing Pty Ltd; Ex parte Director of Public Prosecutions (Cth)

  • Shortened Case Name:

    R v White & Sao Pedro Fishing Pty Ltd; ex parte Director of Public Prosecutions (Cth)

  • MNC:

    [2017] QCA 140

  • Court:

    QCA

  • Judge(s):

    Gotterson JA, Morrison JA, Bond J

  • Date:

    21 Jun 2017

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDC140/16 (No Citation)07 Jul 2016Sao Pedro Fishing Pty Ltd and Christopher Michael White pleaded guilty to offences concerning carrying out commercial fishing activities in a Commonwealth reserve in November 2013. They were convicted and fined $10,000.
Appeal Determined (QCA)[2017] QCA 14021 Jun 2017Application for leave to adduce further evidence and appeals dismissed: Gotterson, Morrison JJA and Bond J.

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Berceanu v Boltons Real Estate Pty Ltd [2004] QDC 18
2 citations
Jump To
Cite 1 - [2004] QDC 18
Cite 2 - [2004] QDC 18
Lacey v Attorney-General (Qld) (2011) 242 CLR 573
2 citations
Jump To
Cite 1 - (2011) 242 CLR 573
Cite 2 - (2011) 242 CLR 573
Lacey v The Attorney-General of Queensland [2011] HCA 10
1 citation
Jump To
Cite 1 - [2011] HCA 10
Minister for Sustainability, Environment, Water, Population and Communities v Woodley [2012] FCA 957
2 citations
Jump To
Cite 1 - [2012] FCA 957
Cite 2 - [2012] FCA 957
R v Pham [2015] HCA 39
1 citation
Jump To
Cite 1 - [2015] HCA 39
R v Pham (2015) 256 CLR 550
2 citations
Jump To
Cite 1 - (2015) 256 CLR 550
Cite 2 - (2015) 256 CLR 550
Smith v Galt [2013] QDC 117
3 citations
Jump To
Cite 1 - [2013] QDC 117
Cite 2 - [2013] QDC 117
Cite 3 - [2013] QDC 117

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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