Taylor v Lanyon[2006] QDC 321

DISTRICT COURT OF QUEENSLAND

INTRODUCTION

1. [1]
   In the evening of 20 June 2004 a vessel, the “Polaris,” operated by the appellant, became grounded on North Reef, which is within the Great Barrier Reef Marine Park. The grounding and subsequent salvage attempts caused some damage to the reef. That caused by the grounding itself was of “negligible ecological consequence”^[1].  That observed along the path of the salvage attempt was “of minor ecological significance, with no apparent conservation implications and minimal aesthetic implications”.^[2]

2. [2]
   On that day the appellant had been conducting a training voyage for six back-packers. The appellant was the master of the vessel. The voyage took the vessel past a number of reefs of which North Reef was one. The appellant set a course to avoid North Reef, based on the charted information. One of the trainees was at the helm of the vessel, under the appellant’s instruction. At some time before arriving at North Reef, the appellant went below deck to help clear a meal. He thought he had left himself sufficient time “to come back up on deck to check on our clearance”^[3] but by the time he came back on deck, it quickly became apparent to him that the vessel was too close to the reef.  That fact had apparently escaped those who had been on deck.  He attempted to take evasive action, but it was too late to avoid the grounding.  He accepts that he would have noticed the vessel drifting off course, had he been on deck^[4].

3. [3]
   The appellant has faced two criminal proceedings in respect of this incident. On 12 August 2004 he pleaded guilty to one count, under s 43(1) of the Transport Operations (Marine Safety) Act 1994 (Qld) (TOMSA), of causing the ship to be operated unsafely.  He was fined $300, but no conviction was recorded.

4. [4]
   Subsequently, on 19 August 2005, he was convicted on one count, under s 38MC(2) of the Great Barrier Reef Marine Park Act 1975 (Cth) (GBRMA), of operating the vessel in a marine park and that operation resulted in damage to the marine park.  The appellant was fined $500.  It is from that conviction which the appellant appeals to this Court.

5. [5]
   The appellant contends that:

1. having already been punished for the State offence in respect of the same act or omission, he was, by reason of s 4C of the Crimes Act 1914, not liable to be punished for the Commonwealth offence;

2. The proceedings in respect of the Commonwealth offence ought to have been permanently stayed as an abuse of process;

3. Valid defences were raised and not negatived; and

4. The learned Magistrate ought to have proceeded pursuant to s 19B of the Crimes Act 1914, rather than proceeding to conviction.

6. [6]
   The argument on those issues was complex and protracted. When the matter first came on for hearing, it became apparent that counsel for the respondent was not sufficiently prepared to properly, effectually and fully assist the Court. As a consequence, the matter was adjourned for further hearing at a later time. Upon the further hearing of the appeal, counsel for the respondent made submissions which were, at least in some important respects, materially different from those which had earlier been advanced. At that time he volunteered that he “didn’t actively grapple with the concepts before the last appearance” and invoked a golfing analogy by saying that he intended “to try and get things down the middle of the fairway as opposed to hacking all over the course as I did last time.” There were also further matters upon which additional written submissions were made by each party subsequently to the completion of the oral argument and counsel for the respondent also provided references to a significant number of cases.

7. [7]
   I will deal with each of the issues in turn.

Section 4C of the Crimes Act 1914

8. [8]
   Section 4C(2) of the Crimes Act 1914 provides that:

“Where an act or omission constitutes an offence under both;

 (a) a law of the Commonwealth and a law of the State; or

 (b) a law of the Commonwealth and a law of the Territory;

and the offender has been punished for that offence under the law of the State or the law of the Territory, as the case may be, the offender shall not be liable to be punished for the offence under the law of the Commonwealth.”

9. [9]
   The provision deals with whether the offender is liable “to be punished for the offence” rather than whether the offender is liable to be convicted. Counsel for the respondent however, indicated that he would not seek to resist the appeal in the event that the appellant was not liable to be punished for the offence, by reason of s 4C(2)^[5].

10. [10]
    Section 4C(2) calls for an identification of the “act or omission” which “constitutes” an offence under the respective Commonwealth and State laws. That is not as straightforward an exercise as it might first appear. As Kirby J noted in DPP for NT v WJI^[6], there has been considerable debate about whether like expressions in other statutes should be given a wide or narrow meaning.

11. [11]
    Section 43(1) of the TOMSA provides that:

“A person involved with a ship’s operation (including the owner, master, pilot and crew members) must not cause the ship to be operated unsafely.

Maximum penalty – 500 penalty units or imprisonment for one year.”

12. [12]
    Section 38MC(2) of the GBRMPA provides, with respect to owners and operators, that:

“If a vessel is operated in the marine park and that operation results in, or is likely to result in, damage to the marine park, the operator and the owner of the vessel are each guilty of an offence punishable on conviction by a fine of not more than 500 penalty units.”

13. [13]
    Each of the offences has different elements and the appellant has not previously been convicted on a charge for the same offence as that for which he was convicted in these proceedings (autrefois convict)^[7].  Although the Explanatory Note to the Bill of the Act which introduced s 4C(2) stated its purpose in terms of protection from double jeopardy, the focus of the subsection is on protection from punishment and whether the offences are constituted by the same “act or omission”.^[8]

14. [14]
    I was informed, by counsel for the respondent, that there were no cases which authoritatively established the correct approach to determining the application of s 4C(2) in these circumstances, although I was ultimately referred to a number of authorities in relation to superseded or similar provisions.

15. [15]
    The appellant contended that each offence related to the same act of operating the vessel. The submissions for the respondent focused on the damage to the marine park, which is an element of the Commonwealth offence but not, it was submitted, of the State offence. The learned Magistrate dealt with the matter as follows:

“My view, and finding, is that there are indeed no common elements in respect of these offences.  One was to operate a ship unsafely and the other is damage to the reef.”

16. [16]
    In his oral submissions on the first day of the hearing of this appeal, counsel for the respondent called in aid s 4.1 of the Commonwealth Criminal Code, which distinguishes between conduct (which means an act, an omission to perform an act or a state of affairs) and a result of conduct.  He urged a narrow construction of “act or omission” and, in effect, contended that s 4C(2) of the Crimes Act could have no potential application to the offence under s 38MC of the GBRMPA because:

1. (1)
   Section 4C(2) only applies where the act or omission “constitutes” an offence under each law;

2. (2)
   The section would only have application where an act or omission, of itself, constituted all the elements of each offence^[9];

3. (3)
   The offence under s 38MC is not constituted by a single act or omission.  It is a ‘result offence’ in that it is constituted by the act of operating the vessel and the result of that act, namely damage to the marine park.  The resulting damage to the marine park is an additional element (in addition to the act or omission) which is required in order to constitute the offence;

4. (4)
   Accordingly, the mere “act or omission” of operating the vessel does not “constitute” the offence under s 38MC and there is no single act or omission which constitutes each offence.

17. [17]
    Those submissions adopted a narrow construction of the expression “act or omission” in s 4C and would, as counsel for the respondent acknowledged, give the section a very confined operation. Those submissions were not persisted with.

18. [18]
    On the further hearing of the appeal, counsel for the respondent said that he had been wrong to interpret “act” as it appears in s 4C(2) of the Crimes Act, by reference to the Commonwealth Criminal Code and that, contrary to his earlier submission, the expression “act or omission” was apt to describe “the subject conduct in its entirety, including results, consequences and so forth.”  It was in this respect that I was referred to a number of authorities in relation to the expression “act or omission” in the context of other similar or somewhat similar provisions.  It is not necessary for me to traverse every case to which I was referred.

19. [19]
    The predecessor to s 4C(2) of the Crimes Act was s 30(2) of the Acts Interpretation Act 1901 (Cth).  In Kilcullen v Sammut^[10] the Full Court of the Supreme Court of this State referred to s 30(2) and a somewhat similar provision in the Black Marketing Act and said (per E.A. Douglas J) that:

“The issue that has to be decided is, in my view, whether the offence against the liquor law of which the respondent was convicted was the same, or substantially the same, offence as the charge that was proffered against him under the Black Marketing Act.”

and

“... the question is whether the offence is substantially the same ... I consider that the plea of autrefois convict does not apply, whether it is taken under the Acts Interpretation Act or under the Black Marketing Act or at Common Law ...”

20. [20]
    In DAT v Police^[11], it was observed, by Doyle CJ, that s 30(2) -

“focused not on punishment for the same offence, but on an ‘act or omission’ which had been punished under State or territory legislation, and provided in that event that the act or omission was not to result in punishment under a Commonwealth Act.”

21. [21]
    In Maple v Kerrison^[12], Bray CJ and Zelling J concluded that s 30(2) would preclude a person being convicted and sentenced for an offence under s 20(2) of the Crimes Act, for failing to comply with conditions upon which he was released, where the breaching offence was a State offence for which the person had already been convicted and sentenced.  King J reached a contrary conclusion on the following basis:

“The offence against s 20(2) is non-compliance with the condition.  This involves not the unlawful act or omission, which amounts to the non-compliance, standing alone, but that act or omission in combination with other essential facts, namely, the existence of a current security entered into by the defendant containing a condition of good behaviour.  The offence against s 20(2) is not the breach of the State law but the non-compliance with the good behaviour condition.  The act or omission constituting the offence against State law is merely the manner in which the non-compliance has occurred.”

22. [22]
    In Grace Brothers Pty Ltd v Magistrates, Local Courts of New South Wales & Another^[13], it was said, in relation to a somewhat similar provision under the Trade Practices Act, that (my underlining):

“Section 75(2) of the Trade Practices Act is directed to a situation where an act or omission of a person is an offence both against s 79 (a provision of Part VI) and an offence against the law of a State.  The expression in s 79(2) ‘an act or omission of a person’ identifies acts or omissions which are the elements or integers of the offence, not the evidence adduced to prove them ...

Where a person has been convicted under either Federal or State law, one looks at the elements of that offence and asks whether those elements also constitute an offence under the other law.  If so, there is no liability to conviction for contravention of that other law ...”

23. [23]
    The criminal codes of Western Australia and Queensland contain provisions against double punishment. Those provisions are somewhat differently worded to s 4C(2). The courts of each State have approached these provisions on the basis that the relevant act or omission is the “punishable” act or omission - that is, the act or omission which renders a person liable to punishment.

24. [24]
    In Phillips v Carbone^[14] Nicholson J said^[15] (my underlining):

“... the phrase ‘act or omission constitutes more than one offence’ is to be taken as meaning that the act or omission renders liable to punishment in the sense that the act or omission makes up, frames or composes the offence ... The relevant act or omission is therefore that which renders the person doing the act liable to punishment in terms of the relevant offence.  The relevant act or omission is therefore to be sought in terms of the sections creating the offences considered in relation to what the person actually did.  Because the ambit of the act or omission relevant for assessment of the application of s 16 is determined by the offence in relation to which it raises a liability to punishment it follows that (1) where the offence describes the act or omission in terms of its causative character, that character is written in the ambit of the Act relevant for the assessment of the application of s 16 and (2) where that description of the act occurs in the offence creating liability, it is not to the point to consider whether the words ‘act or omission’ include the results thereof.”

25. [25]
    In the same case, Ipp J said^[16] (my underlining):

“It is, in my opinion, striking, that the ‘act or omission’, the subject of s 16, is an act or omission that ‘constitutes more than one offence’.  Now, an act or omission alone, in the sense of the actual physical conduct of a person, will rarely – if ever – constitute an offence.  By an act or omission in this limited sense I am referring to the meaning given to these words in s 23 of the code: see cases such as Kaporonovski (1973) 133 CLR 209 at 231 and Falconer (1990) 171 CLR 30 at 38; 50 A Crim R 244 at 248.

It seems to follow, therefore, that ‘act or omission’ must mean more than the physical conduct of the accused; otherwise s 16 would have no content.  For an act or omission to constitute an offence it must encompass not only the physical conduct of the accused person but the other extraneous circumstances that, together with the accused’s conduct, go to constitute the offence.

... On this basis, the phrase ‘act or omission’ in s 16 means an act or omission, or series of acts or omissions, made up of all the facts which constitute the offence ...”

26. [26]
    In the same case Pidgeon ACJ quoted^[17] from Glanville Williams’ “Criminal law – The General Part”, which states that ‘act’, both in law and in ordinary speech, has three branches, namely:

1. (a)
   a willed movement (or omission);

2. (b)
   certain surrounding circumstances;

3. (c)
   certain consequences.

Pidgeon ACJ went on to say, at p 398, that (my underlining):

“Section 16 uses the word ‘constitutes’ as distinct from saying ‘a component of’.  This would suggest that the words, when used in the section, are referring to the thing done as distinct from the means of doing it.”

27. [27]
    Similarly, in Queensland, the courts have taken the view that s 16 of the Criminal Code is concerned with punishable acts or omissions^[18].  In R v Tricklebank, for example, the applicant was convicted of dangerous driving causing death with the circumstance of aggravation that, at the time, he was adversely affected by alcohol.  Previously, he had been convicted and sentenced for the offence of driving at the time and place of the fatal accident, whilst having a blood alcohol concentration of 0.1 per cent.  The applicant unsuccessfully contended that the trial Judge erred in taking into account the circumstance of aggravation in sentencing him.  The punishable act for which the applicant had been convicted on the second occasion was not the same punishable act as that for which he had been convicted and sentenced earlier, although both charges arose out of the same incident.

28. [28]
    Similarly, in R v Gordon^[19], upon which counsel for the respondent placed some emphasis in his oral submissions, the punishable act or omission, which had already been dealt with in the Magistrates Court, of being in charge of a motor vehicle while under the influence of liquor or a drug, was not the same punishable act or omission the subject of the later charge of dangerous driving causing grievous bodily harm. Hanger CJ said, at 306:

“section 16, in saying that a person cannot be twice punished for the same act or omission, must be referring to punishable acts or omissions”

and at 307

“If this construction of s 16 is right, then the section would have no application to the circumstances of the present case. The punishable act or omission which had already been dealt with by the magistrate being in charge of a motor vehicle while under the influence of liquor or a drug – was not the punishable act or omission before His Honour – dangerous driving causing grievous bodily harm.”

Williams J said, a 313

“On the dangerous driving causing grievous bodily harm charge it is relevant not only that he was driving the vehicle but also that there existed all or some of the surrounding circumstances as set out above in the definition of dangerous driving some of which includes being under the influence of liquor. In the one it is the act of driving in a particular condition, in the other it is the act of driving in a particular manner in particular circumstances causing a certain result which is the gravamen of the offence. To my mind the same ‘act or omission is not involved”

and at 323

“…the proper test is whether the same wrongful act or omission which previously resulted in conviction and punishment, is the central theme, the focal point or for want of a more apt choice of words and perhaps more appropriately, the basic act or omission in the later offence charged.”

29. [29]
    There are cases where different conclusions have been reached in relation to the applicability of provisions, such as s 16. In R v Harris^[20], for example, the Court of Appeal in this State concluded that there was only one punishable act, of operating a vehicle dangerously, even though it resulted in two consequences, namely causing death to one occupant and grievous bodily harm to the other.  In Phillips v Carbone (supra), the Full Court of the Supreme Court of Western Australia concluded that s 16 did not apply to prevent a person from being punished for the offence of “causing bodily harm to another person by driving a motor vehicle in a manner dangerous to the public” where he had also been charged with a second offence relating to injury caused to another in the same incident.  These different conclusions however, appear to rest more on an identification of the punishable act in the context of the particular provisions, than from matters of principle concerning the approach to the expression “act or omission”.

30. [30]
    The appellant drew attention to a passage in the Grace Brothers case where Gummow J opines that “if the offence under the State law comprised three essential elements A + B + C (that is to say a lesser number than that under the federal law), then it might be accurate to say that an act or omission comprising elements A + B + C + D was an offence under both laws, even though the presence of element D was superfluous as regards the State law”.  It might be right to conclude that the same act or omission constituted each offence if, for example, the Commonwealth offence, in this case, had been one of operating a vessel unsafely in the marine park (the punishable act being the same but the element concerning the marine park being superfluous to the State offence).  In this case however, the focus of the Commonwealth offence was not whether the vessel was operated safely, or even whether it caused a marine incident, but whether its operation resulted in damage to the marine park.

31. [31]
    It seems to me that, for the purposes of s 4C(2) of the Crimes Act, the relevant act or omission is that which ‘constitutes’ the offence or, to adopt the words of Gummow J in Grace Brothers, the “acts or omissions which are the elements or integers of the offence”.  I accept the ultimate submission of counsel for the respondent that the expression is not confined as narrowly as he put it when the matter was first argued, or as the appellant continued to contend for.

32. [32]
    Adopting that approach, the act or omission which constituted the State offence was the act of operating the vessel unsafely. Counsel for the respondent submitted that such an act does not constitute the Commonwealth offence. Rather, the Commonwealth offence is constituted, in this case, by the act of damaging the marine park as a result of operating the vessel.

33. [33]
    The appellant, on the other hand, argued that damaging the marine park by grounding the vessel did form part of the act which constituted the State offence. In that regard, the appellant relied upon s 43(2) and (4) of the TOMSA. He was also permitted to tender the transcript of the proceedings for the State offence, together with a copy of his written submissions, which had been handed up on that occasion.

34. [34]
    Section 43(2) and (4) provide as follows:

“(2) Without limiting subsection (1), a person causes a ship to be operated unsafely if the person causes the ship to be operated in a way that –

1. (a)
   causes a marine incident; or

...

4. (4)
   a person does not contravene this section because of subsection (2)(a) if the only basis for holding that a marine incident has been caused is lawful damage to, or danger of lawful damage to, property of which the person is the sole owner.”

35. [35]
    The expression “marine incident” is defined in s 123 of the Act as follows:

“123 What is a marine incident

1. (1)
   A marine incident is an event causing or involving –

1. (a)
   the loss of a person from a ship; or

2. (b)
   the death of, or grievous bodily harm to, a person caused by a ship’s operation; or

3. (c)
   the loss or presumed loss or abandonment of a ship; or

4. (d)
   a collision with a ship; or

5. (e)
   the stranding of a ship; or

6. (f)
   material damage to a ship; or

7. (g)
   material damage caused by a ship’s operations; or

8. (h)
   danger to a person caused by a ship’s operations; or

1. (i)
   danger of serious damage to a ship; or

10. (j)
    danger of serious damage to a structure caused by a ship’s operations.

2. (2)
   A marine incident also includes another event prescribed by regulation.

3. (3)
   However, a marine incident does not include an event declared by regulation not to be a marine incident.”

36. [36]
    The appellant contended that he had pleaded guilty knowing that he had caused a marine incident by causing the stranding of the ship. He also contended that he pleaded guilty knowing that he had caused damage other than to his own vessel (i.e. to the reef) which, he said, was necessary to constitute the offence having regard to s 43(4). I do not agree with that construction of subsection (4).

37. [37]
    Section 43(4) does not provide that subsection (2)(a) is not contravened unless there is damage, other than lawful damage, to property of which the person is the sole owner. Rather, it provides that subsection (2)(a) is not contravened if “the only basis” for holding that a marine incident has been caused is such lawful damage. There might be circumstances in which the only basis for holding that a marine incident has been caused is the causing of damage^[21], but that is not the case here.  An event causing or involving the stranding of a ship is a marine incident whether or not there has been consequential damage.

38. [38]
    In this case, the charge under the State law did not particularise the basis upon which it was said that the appellant had operated the ship unsafely. The transcript of the proceedings in relation to that charge reveals that the prosecution informed the learned Magistrate of the facts leading up to the marine incident and of the fact of the grounding, but not the nature or effect of any damage to the marine park resulting therefrom. The same can be said of the written submissions which the appellant relied on at that time which stated, amongst other things, as follows:

“11. I admit to causing my vessel to be operated unsafely which resulted in a ‘marine incident’ namely a ‘stranding’.

12. …

13. On the 16^th of June 2004 I picked up six backpackers at Bundaberg and concluded a crew induction and safety briefing.  Five had applied to undertake a competent crew course and one who had previously completed the competent crew course wished to undertake the in-shore skipper course.

14. Over the next four days we undertook sail training exercises whilst on passage from Bundaberg to Lady Musgrave Island to Fitzroy Reef and North Reef.  We were bound for Cairns with a number of stops over a period of 15 days.

15. The unsafe operation of my vessel, which resulted in the stranding, relates to my incorrect assessment of the capabilities of those on watch.  A capable watch should have been able to determine our position visually and avoid the incident.  I am responsible for selecting the watch and assessing their capabilities and do not imply that those on watch have any responsibility for the incident.

16. The unsafe operation also relates to an error in my navigation arising from a lack of tidal information on the chart and insufficient local knowledge on my part although I have previously sailed the same course.

17. I had determined a course that should have given us a clear passage by approximately one nautical mile.  Half an hour prior to the incident I checked our position and found no error in our course indicating no tidal influence.

18. The tidal flow at the time of and in the location of the incident was later stated to be three knots in a westerly direction.

19. The yacht speed was approximately six knots.

20. Prior to the incident, I was below deck preparing a meal.

21. Just prior to the incident I returned to the cockpit to check our progress, determined very quickly that we were off-course, took the helm and turned to port but too late to avoid a grounding.

22. My actions which resulted in the incident (an error in navigation and incorrect assessment of the watch capabilities) were not reckless, negligent or financially motivated ...”

39. [39]
    It would seem that the act which constituted the offence for which the appellant was dealt with on the earlier occasion was, at its highest for the appellant, the act of causing the ship to be operated unsafely by causing it to become stranded (a marine incident)^[22].  It was not constituted by damaging the marine park, although such damage did result.  While the distinction may, in the present circumstances, seem to be a fine one, the focus of the State offence was the act of unsafe operation constituted by the causing of the stranding.  That does not constitute the Commonwealth offence.  The focus of the Commonwealth offence was the act of damaging the marine park as a result of the operation of the vessel in the marine park.

40. [40]
    If the matter were approached, as in Kilcullen v Sammut, by asking whether the offences were the same or substantially the same, then the defence would fail as each has distinctly different elements.  If attention was focussed on the identity of the “act or omission” and that phrase were narrowly construed, as simply being the act of operating the ship, then, as counsel for the respondent initially submitted, it is not an act which constitutes the relevant offence, which is a result offence.  If, as I consider it should be, the expression is given the broader meaning as encompassing the result which constitutes the offence (i.e. that which was done which comprises the elements or integers of the offence), then the act which constituted the offence under the State law, namely causing the ship to be operated unsafely by causing it to be operated in a way that caused the marine incident of a stranding, does not also constitute the Commonwealth offence, which focused upon doing damage to the marine park.

41. [41]
    The appeal on this ground fails.

Abuse of process

42. [42]
    The appellant contends that the learned Magistrate ought to have exercised the inherent jurisdiction to stay proceedings which are an abuse of process. The court has a power to prevent abuse^[23], even where a double jeopardy style defence is not available^[24].  The appellant’s argument in this court, as in the court below, focussed on what he saw as the injustice of the legislature’s decision to make this offence one of strict liability.

43. [43]
    The exclusion of fault elements does, of course, have serious consequences and it is unsurprising that, as the appellant pointed out, there was debate about such matters prior to the passage of the legislation which created the strict liability offence under the GBRMPA. As was pointed out in He Kaw Teh^[25] by Brennan J:

“... The presumption is that the Statute does not impose criminal liability without mens rea unless the purpose of the Statute is not merely to deter a person from engaging in prohibited conduct but to compel him to take preventative measures to avoid the possibility that, without deliberate conduct on his part, the external elements of the offence might occur.”

44. [44]
    The use of strict liability is not unknown, particularly in the context of environmental offences, and has its place. The appellant has not demonstrated any basis upon which it could be said that it was beyond the competence of the parliament to make the subject offence one of strict liability or any basis upon which the court would be justified in applying a permanent stay on the basis that the offence was one of strict liability. There is no other basis for applying a stay in this case. This ground of appeal also fails.

Available Defences

45. [45]
    Potential defences, referred to in argument, were:

1. (i)
   That the conduct constituting the physical element of the offence was not voluntary (s 4.2 of the Commonwealth Criminal Code);

2. (ii)
   Mistake of fact (s 9.2);

3. (iii)
   Intervening conduct or event (s 10.1).

46. [46]
    The first of those concerns whether the physical elements of the offence are made out. The other two are more accurately described as defences. The learned Magistrate proceeded on the basis that “these are not defences which are available under the section”, presumably because the offence is one of strict liability. Although counsel for the respondent^[26] did not seek to correct the learned Magistrate at that time, he conceded, in the appeal, that his Honour erred in that regard.  It is appropriate that they now be considered in the context of the appeal.

(i) Voluntariness

47. [47]
    Section 4.2 provides, in part, as follows:

“Voluntariness

1. (i)
   Conduct can only be a physical element if it is voluntary;

2. (ii)
   Conduct is only voluntary if it is the product of the will of a person whose conduct it is;

3. (iii)
   The following are examples of conduct that is not voluntary:

1. (a)
   a spasm, convulsion or other unwilled bodily movement;

2. (b)
   an act performed during sleep or unconsciousness;

3. (c)
   an act performed during impaired consciousness depriving the person of the will to act;

4. (iv)
   An omission to perform an act is only voluntary if the act omitted is one which the person is capable of performing;

5. (v)
   If the conduct constituting the offence constitutes only a state of affairs, the state of affairs is only voluntary if it is one over which the person is capable of exercising control.”

48. [48]
    Conduct is defined, in s 4.1 to mean an act, an omission to perform an act or a state of affairs and is distinguished, in s 4.1, from a “result of conduct” or “a circumstance in which conduct occurs”.

49. [49]
    In “The Commonwealth Criminal Code – A Guide for Practitioners” (“the practitioner’s guide”) it is said:

“Since chapter 2 restricts the plea of involuntariness to a denial that conduct was voluntary, a defendant who pleads absence of the capacity to control the circumstances or results of that conduct must bring that plea within the ambit of one of the defences.  There is no provision for a plea that the incriminating circumstances or result of that conduct came about involuntarily.”

50. [50]
    I accept that the offence was not committed voluntarily, in the sense that the appellant did not intend that damage to the marine park should result from the operation of the vessel. However, that does not mean that the conduct constituting the offence was not voluntary. The conduct was the product of willed acts. The appellant fails on this ground.

(ii) Mistake of fact

51. [51]
    Section 9.2 provides as follows:

“Mistake of fact (strict liability)

1. (i)
   A person is not criminally responsible for an offence that has a physical element for which there is no fault element if:

1. (a)
   at or before the time of the conduct constituting the physical element, the person considered whether or not facts existed, and is under a mistaken but reasonable belief about those facts; and

2. (b)
   had those facts existed, the conduct would not have constituted an offence.

2. (ii)
   A person may be regarded as having considered whether or not facts existed if:

1. (a)
   he or she had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and

2. (b)
   he or she honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.”

52. [52]
    The appellant claims to have been suffering under a mistake that the vessel would pass by the reef and not result in damage to the marine park. When the appeal first came on for hearing, counsel for the respondent submitted that the defence would only apply where a person was under a mistake as to whether he was the owner and operator of the vessel or whether the vessel was being operated in the marine park and not as to whether or not damage would result^[27].  The appellant had proceeded under the same impression at first instance and had effectively conceded the point at that stage.  On the further hearing of the appeal however, that submission was retracted by counsel for the respondent in favour of a submission that “it’s clear that the mistake can be in relation to the conduct, the result or the circumstances and his mistake about what the result would be may fit within the terms of the mistake of fact ... defence set out in 9.2”, but the mistake must not only be honestly held but also reasonably held.  He submitted that the issue now to be determined is “was it reasonable to assume that I (the appellant) can go below decks now and safely pass by that reef”^[28].

53. [53]
    Counsel for the respondent’s concession, that a relevant mistake may relate to the result elements of the offence, is consistent with the commentary in the practitioner’s guide, which also states:

“The defence requires a mistaken belief in facts which are, in some way, inconsistent with the existence of the circumstance or result which makes the conduct an offence”

and

“strict liability may also be imposed for the results of conduct.  When liability is imposed for results or future circumstances, a defence of reasonable mistake of fact will depend on the defendant’s beliefs relating to precautions or preventive factors.  Reasonable mistake of fact will provide a defence for an accused who was convinced, on reasonable grounds, that the incriminating result could not occur.  However, mistake is no excuse if the defendant knew that the preventive factors might prove illusory or that precautions might fail.  The standard set by the defence of reasonable mistake of fact is absolute in the sense that it requires a reasonable belief that incriminating results will not occur ... it makes no difference that a reasonable person might have considered the risk worth taking.  The defence only excuses if the defendant made a reasonable mistake; it is not a defence of reasonable behaviour or due diligence ...”

54. [54]
    The application of a mistake of fact defence to an environmental offence of strict liability under State law was considered in The State Rail Authority of New South Wales v Hunter Water Board^[29].  The case concerned the escape of diesel oil from a break in an underground pipe, caused by differential settlement.  The only issue, at first instance, was whether it was a case of honest and reasonable mistake.  The defendant’s manager claimed that, on the day in question, he believed the system would work properly and put forward, as his basis for so concluding, that there had never previously been a problem and that the PVC pipes were, to use his words, “maintenance free”.  In cross-examination, he agreed that the nature of the material in which the pipe was laid was such that differential movement, and consequent breakage, was a risk and that it was possible to conduct checks for fractures by means of water pressure tests, but he had not done so.  Gleeson CJ (with whom Cripps JA and Slattery AJ concurred) said:

“In determining what state of mind will be treated as a mistaken belief for the purposes of an offence of strict liability created by Statute, questions of statutory construction arise, and the purpose of the legislature in creating an offence needs to be considered (He Kaw Teh v The Queen, above, per Brennan J at 576-8).

It would be inconsistent with the legislative purpose underlying the Clean Waters Act to conclude that the mere lack of knowledge that polluting was occurring, or was likely to occur, based upon a general understanding or assumption that everything was in order, would be sufficient to amount to a mistaken belief.  Rather, a belief in the existence of a set of facts which, if true, would take the conduct in question outside the operation of the Statute would entail, in a case such as the present, a positive belief that the operation of the plant and equipment would not result in pollution.  That belief would also need to be sufficiently specific to relate it to the elements of the particular offence.  In the present case it could be a belief that the particular pipeline did not leak, or a belief that, if it did, oil that was leaked would not pollute waters.  Such a belief might relevantly constitute a mistake, and it would then be necessary to examine the question whether that mistake would honest and reasonable.

It would be inconsistent with the legislative purpose of the Clean Waters Act to conclude that a defendant would be excused on the basis simply that he or she had no particular reason to apprehend that the operation of the plant and equipment in question would, or might, result in pollution.  Indeed, bearing in mind where the onus of proof lies in relation to this issue, it is hardly likely that the legislature intended that the prosecution should have to prove the absence of a belief of that kind.”

55. [55]
    While that concerned a State offence (and the defence of honest and reasonable mistake was not governed by s 9.2 of the Commonwealth Criminal Code), the observations are nevertheless of assistance.

56. [56]
    Section 38MC(2) of the GBRMPA is aimed at protection of the marine park. It would be contrary to the purpose of the legislation to conclude that a mere absence of negligence was sufficient to ground a mistake of fact defence. Negligence, which is an element of the offence under s 38MC(1), is not an element of the strict liability offence, under subsection (2).

57. [57]
    The evidence in relation to the circumstances leading up to the incident is that of the appellant himself, principally in the record-of-interview (Exhibit 2). In that record-of-interview, the appellant said, at p 6:

“17.40.  We set a course based on those two bearings.  It says on the chart that there’s a tidal flow shown on the chart between Wreck Island and Broomfield Island at approximately two knots on the flood and the ebb.  In the lee at Broomfield where we made those two fixes, there’s not a lot of tide.  We extended our course through to give us a clearance on North Reef.  There’s no tidal flow shown between the North Reef and Broomfield, and I believe there is quite a tidal flow through there.  Extending that line through gave us clearance on North Reef without knowledge of that tidal flow through there.  I believe the tide pushed us up onto the reef.  And we hit the reef at approximately 6.20.  We ... there was a fishing boat fishing approximately a mile and a-half from where we hit.  He, afterwards actually said he saw us coming – we were making a good course clear of the island, and his comment was ‘and the tide got you and pushed you onto the reef’.  He came to our assistance.  I managed to get a tow line to him ... they came down and attempted to get – to get a tow line to us.  At that stage we drifted further onto the reef.  We had previously dropped our anchor, which is a very, very substantial anchor for any vessel of that size.  It’s a 75 pound CQR with a five/eight short length chain you’d classify as massive for a 50-foot vessel.  However, it wouldn't hold.  The tide was obviously running across the reef.  Water flowed and the waves also running across the reef, wind was pushing across the reef and the anchor just wouldn't hold.  We had about 170 feet of chain out at that stage.  When the larger vessel came down, obviously it was pitch black at that stage.  It was pitch black when we actually hit the reef at 6.20 ...”

58. [58]
    At pages 7-8 of the record-of-interview, the appellant spoke of the bearings which had been taken, under his supervision, using a compass and a GPS. At that time, he was in charge of the watch and had one of his students at the helm. At p 8 the appellant said:

“I was the watch keeper, and one of the students was, again – under my instruction, on the helm.  He does have experience and I believe he was holding a reasonable course as per the compass.  As I indicated, I think the tide which I’ll (not transcribed) as being a navigational error on my part.  The flow of the tide was not specifically shown in that area as the cross currents through there.  The fisherman certainly indicated that there was, and the marine safety officer downstairs also indicated there’s quite a tidal flow through there.”

At p 9 he said:

“As I said to Tom ... or – and all the students when they come on board, that I was in charge and on, on watch all the time and the master of the vessel, and if anything goes wrong while they’re on, on duty – on the helm, or acting as crew – it’s my responsibility.”

Asked what he was doing just prior to the accident, he responded:

“I’d actually gone down just – down below just to help clear a meal.  And, giving myself I thought, time to come back up on deck to check on our clearance.  I actually came back up on deck at 6.20, and very quickly determined that we were too close to the reef.  Took the helm from Tom.  Turned right port tack – the quickest way to turn is to turn to port.  I turned the wheel to port, probably about one turn maximum, before we hit the reef.  In a matter of seconds, a minute more and we would have been clear.”

59. [59]
    North Reef had a lighthouse. The navigational equipment on the vessel at the time comprised a hand-bearing compass, charts, a fixed GPS and a hand-held GPS, a software package interfaced with the GPS, to show the position on a laptop computer and radar which was not turned on.

60. [60]
    At p 11 the appellant spoke of a previous voyage. Asked where he generally sailed from when training students, he responded, at p 12 that:

“Being a relatively new business ... trips I’ve done in the past are local around the Gold Coast, trips up to Lady Musgrave and back into Hervey Bay.  We haven’t brought any students, prior to this, past Lady Musgrave.”

61. [61]
    The evidence justifies a conclusion that the appellant applied his mind to the need to steer clear of the reef and to the known conditions (at least so far as he was aware of them from the charted information) and plotted a course to avoid collision, on the assumption that the charted information was complete and the vessel remained on that course. As the appellant pointed out in his submissions, he also had students on watch, a person with at least some experience at the helm and the appellant had previously sailed the course without incident. The question is whether that justifies a conclusion that the appellant thereby believed, or that it was reasonable for him to have believed, that the vessel was or remained on course to avoid the reef and any prospect of damaging the marine park, once he had gone below deck, as the vessel approached North Reef.

62. [62]
    It would seem to me that, notwithstanding the above, there remained an obvious risk, whether by reason of the competence (or otherwise) of the trainee helmsman and lookout, the relative level of experience and familiarity with local conditions of those on board, a variation between local conditions on the day and the charted information, the encountering of unusual conditions or other vicissitudes at sea, that the vessel might not remain on a course which would take it clear of the reef and obviate any potential for damage to the marine park to result from the vessel’s operation.

63. [63]
    As the appellant himself said in one of his written submissions, “the risk of collision with navigational hazards and other vessels exists at all times and in all locations”, but the risk of collision with the reef was an obvious one, as the appellant appears to have appreciated. I recognise that, as the appellant submitted, it is not necessarily unreasonable for the master of a vessel to go below deck at some point, although the evening approach to a reef would not appear to be the most opportune time to do so. I acknowledge that the appellant did take some precautions before doing so, but these precautions did not obviate the risk nor were they sufficient to found a reasonable belief that damage to the marine park simply would not occur. They failed, it would seem, because those on deck were not sufficiently competent to detect and react to the vessel’s proximity to the reef and the appellant had put himself in a position below deck, where he could not effectively supervise, and did not return until it was too late.

64. [64]
    It may be inferred that the appellant appreciated that there remained a risk once he went below deck. He had been on deck when the last bearing was taken off Bloomfield Reef and had, by his own admission, intended to return to the deck in sufficient time to check on the vessel’s clearance from North Reef. Indeed “returning at what I determined to be a suitable time to check on our progress” was one of the precautions which the appellant relied on, in his written submissions. While, upon his return, he might have been surprised that the vessel was about to become grounded, with resultant damage to the reef, he does not appear to have believed, and it would have been unreasonable for him to believe, that there was no risk of that occurring (or that it would not occur) having gone below deck.

65. [65]
    This defence fails.

(iii) Intervening event

66. [66]
    Section 10.1 of the Commonwealth Criminal Code provides as follows:

“Intervening conduct or event

A person is not criminally responsible for an offence that has a physical element to which absolute liability or strict liability applies if:

1. (a)
   a physical element is bought about by another person over whom the person has no control or by a non-human act or event over which the person has no control; and

2. (b)
   the person could not reasonably be expected to guard against the bringing about of that physical element.”

67. [67]
    In this case, the physical element of resulting damage to the marine park was brought about when the vessel became grounded on the reef which was, in turn, the appellant contends, brought about by the “non-human act” constituted by the tidal flow. More accurately, the grounding was caused by a failure to steer the vessel clear of the reef in the prevailing conditions. The difficulties for the appellant are that: (1) he was in a position to control those who were left to operate the vessel once he went below deck, and (2) to the extent that the damage was brought about by the prevailing conditions, whilst he might not have been aware of the specific tidal flow, it was reasonable to expect him to guard against the bringing about of damage to the marine park, by effective supervision as the vessel approached North Reef.

68. [68]
    I have not placed weight upon the respondent’s submission^[30] that the appellant could have obtained information about the tidal flow upon reasonable prior inquiry, since evidence was not called about what enquiries would ordinarily be expected to be made, what he would have been told, and by whom, prior to this incident, had he made any (and if so what) inquiry.  As already noted however, there remained a risk and had he been on deck, keeping a proper look-out as the vessel approached the reef, the appellant would have been in a position to earlier detect and react to the vessel getting too close to the reef.  This defence also fails.

(iv) Sudden and Extraordinary Emergency

69. [69]
    Some, relatively faint, reference was made to the defence of sudden and extraordinary emergency, as provided for in s 10.3, but I am satisfied that it was not raised on the evidence. It was not a case of committing an offence as the only reasonable way to deal with a sudden or extraordinary emergency. It was a case of committing an offence in the context of a failure to promptly detect and respond to the effect on the ship’s course, of the prevailing conditions on the day.

Section 19B

70. [70]
    The appellant contends that the learned Magistrate ought not have proceeded to conviction, but ought to have dealt with the appellant pursuant to s 19B of the Crimes Act.  The respondent contends that the decision whether to proceed pursuant to s 19B was within the discretion of the learned Magistrate and that this court cannot, or should not, interfere with the exercise of that discretion in the absence of error, of which, it was submitted, there was none.

71. [71]
    Appeals to this court, pursuant to s 222 of the Justices Act proceed by way of rehearing.  Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker.  That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error^[31].  As has been observed on other occasions however, it is necessary to have regard to the particular provisions which govern the exercise of the appellate jurisdiction in each case. 

72. [72]
    I am mindful that, in the case of appeals pursuant to s 222, the court has the power to give leave to adduce fresh, additional or substituted evidence (s 223(2)) - as it has in this case - and also the power not only to confirm, set aside or vary the appealed order, but also to “make any other order in the matter the Judge considers just” (s 225(1))^[32].  Even if it were assumed that this court’s powers, in this respect, are not limited to the correction of error, I would be reluctant to depart from a proper and adequately reasoned exercise of discretion at first instance.  As Kirby J said in Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (supra):

“The range and variety of decisions that may, with leave, be subject of an appeal under the Act is such as to suggest that generalities will be dangerous.  So different are the various decisions amenable to appeal that it will only be of limited help to catalogue the process within the broad class of an “appeal in the strict sense” and “appeal by way of rehearing”, as if, without more, such classification dictates the way in which the particular appeal must be approached.  True, such broad categories will offer a limited measure of guidance.  But it remains for the appellate body in every case to discharge its functions in a way apt for all of the statutory provisions that are brought into play.

It is necessary to make this point because some of the discussion of the nature of the appeal to the Full Bench of the Commission, both within the Commission and in the reasons of the Full Court, might, on a superficial reading, be taken to suggest that there is a particular classification of appeals generally, being “appeals against discretionary decisions”, which is in some way to be distinguished from “appeals by way of rehearing”.  This is a false dichotomy.  Many appeals by way of rehearing involve appeals from discretionary decisions.  The rehearing identifies the materials upon which the appellate body acts.  It will have relevance for any supervening changes in the facts or in the applicable law.

On the other hand, the character of the decision under appeal (as discretionary, interlocutory, final or otherwise) will govern the approach to be taken by the appellate body in discharging its function.  In the case of discretionary decisions, that approach in the case of an appeal is one of caution and restraint.  This is because of the primary assignment of decision making to a specific repository of the power and the fact that minds can so readily differ on most discretionary or similar questions.  It is rare that there will be on one admissible point of view.  Disputation and litigation are expensive, distracting and time consuming.  Therefore, the law, for policy reasons, recognises these features of discretionary decisions.  Except in appeals involving a complete hearing de novo, all other appeals will approach with restraint the reconsideration of discretionary decisions which are based on the same material that was before the decision maker.”

73. [73]
    The next question is whether the learned Magistrate properly exercised the discretion and provided adequate reasons for doing so.

74. [74]
    Section 19B does not simply confer a general discretion. It requires the decision maker to progress through a number of steps, giving consideration to matters of relevance at each stage. Section 19B(1) provides as follows:

“19B(1) Where:

1. (a)
   a person is charged before a court with an offence against a law of the Commonwealth; and

2. (b)
   the court is satisfied, in respect of the charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:

1. (i)
   the character, antecedents, cultural background, age, health or mental condition of the person;

2. (ii)
   the extent (if any) to which the offence is of a trivial nature; or

3. (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:

3. (c)
   dismiss the charge or charges in respect of which traffic engineer court is so satisfied; or

4. (d)
   discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph (c), upon his giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he will comply with the following conditions:

1. (i)
   that he will be of good behaviour for such period, not exceeding 3 years, as the court specifies in the order;

2. (ii)
   that he will make such reparation or restitution, or pay such compensation, in respect of the offence (if any), or pay such costs in respect of his 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):

1. (A)
   on or before a date specified in the order; or

2. (B)
   in the case of reparation or restitution by way of money payment or in the case of payment of compensation or an amount of costs – by specified instalments as provided in the order; and

3. (iii)
   that he will, during a period not exceeding 2 years, that is specified in the order in accordance with sub-paragraph (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.”

75. [75]
    When considering whether to exercise the discretion vested in it by s 19B, the court must engage in a two stage process. The first is to identify the factors listed in (1)(b)(i), (ii) and (iii) which are relevant. In that regard, it may be noted that:

1. (i)
   The expression “antecedents” is one of wide import and includes the professional qualifications and experience of the accused^[33];

2. (ii)
   The provision that “the offence is of a trivial nature” refers to the surrounding circumstances which make the offence one of a trifling nature^[34]. While there might be a reluctance to regard an offence relating to damage to something as important as the marine park as trivial, the provision is concerned with the offence committed by the offender and not the offence in the abstract^[35]. Triviality is to be ascertained by reference to the conduct which constitutes the offence for which the offender is liable to be convicted and to the actual circumstances in which the offence is committed^[36];

3. (iii)
   Extenuating circumstances are those which serve to make the offence seem less serious or, to put it in other ways, which excuse, in some appreciable degree, the commission of the offence or which reduces the degree of culpability attaching to the offender, albeit that those circumstances do not amount to a defence^[37].

76. [76]
    In the second stage, the court must determine whether, having regard to the factor or factors identified in the first stage, 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. Where any of those conclusions are reached, the court’s discretion to deal with the matter pursuant to s 19B is enlivened^[38].

77. [77]
    In determining the issue of expediency, the range of relevant considerations is broader than the list of matters specifically listed as factors to which the court must have regard^[39].

78. [78]
    In Cobiac v Liddy^[40], the High Court was concerned with a similar State provision.  The magistrate, at first instance, had relied upon the defendant’s age and good character (and care of an elderly sister).  In the joint judgment of Barwick CJ, Kitto and Owen JJ, it was said that age was undoubtedly a fact which the magistrate was entitled to consider, but that (my underlining):

“Age in this context is a relative matter, relative to all the circumstances which exist or are about to exist.  The expediency which the magistrate is required to consider is not limited to age itself, although age is one of the factors which give rise to the question whether it is expedient in all the circumstances to exercise the powers given by the subsection.”

Windeyer J said:

“He (the magistrate) could exercise it (the discretion) as he thought expedient, provided that in the circumstances it was open to him to exercise it at all.  The statutory conditions for its exercise were that he should be ‘of opinion that, having regard to the character, antecedents, age, health, or mental condition of the person charged ... it is expedient to exercise’ the power.  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 ... One of those by itself, or several of them taken together, must provide a sufficient ground ... 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 are wide words.  None of the matters they connote is necessarily to be regarded in isolation from the others, or apart from the whole circumstances of the offender and the offence.”

79. [79]
    In Commissioner of Taxation v Baffsky, it was said that the scope of considerations relevant to the exercise of the power in s 19B(1) encompasses each of the matters identified in s 16A(2).  Those matters were said to arise at the “second stage”, of considering expediency^[41].

80. [80]
    Section 16A(2) of the Crimes Act provides as follows:

“16A(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

1. (a)
   the nature and circumstances of the offence;

2. (b)
   other offences (if any) that are required or permitted to be taken into account;

3. (c)
   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;

4. (d)
   the personal circumstances of any victim of the offence;

5. (e)
   any injury, loss or damage resulting from the offence;

6. (f)
   the degree to which the person has shown contrition for the offence:

1. (i)
   by taking action to make reparation for any injury, loss or damage resulting from the offence; or

2. (ii)
   in any other manner;

7. (g)
   if the person has pleaded guilty to the charge in respect of the offence – that fact;

8. (h)
   the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences;

10. (j)
    the deterrent effect that any sentence or order under consideration may have on the person;

11. (k)
    the need to ensure that the person is adequately punished for the offence;

13. (m)
    the character, antecedents, cultural background, age, means and physical or mental condition of the person;

14. (n)
    the prospect of rehabilitation of the person;

16. (p)
    the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.”

81. [81]
    In this case, the question of s 19B was dealt with, at first instance, in the course of the following exchange:

“MR McCARTHY:  Seeking fine, your Honour.

BENCH:  Yes, I raised with you during the hearing but also I’ll raise again this issue of whether section 19B could be applied.

MR McCARTHY:  Yes, your Honour, it certainly is applicable to this type of offence.

BENCH:  Mmm.

MR McCARTHY:  My submission is that none of the limbs which activate the section 19B discretion are satisfied in this case.

BENCH:  They are?

MR McCARTHY:  That they aren’t.

BENCH:  They aren’t.  So, what you say it’s not trivial.

MR McCARTHY:  No, it’s not a trivial offence.  There is some damage which will take time to recover even though it is minor in the scheme of things.  Ordinarily-----

BENCH:  That’s the only one.  I noticed in the report of the expert that he says that it’s not likely that any permanent damage-----

MR McCARTHY:  No, it’s – the timeframes, they’re all well under ten years.  Some of them only one to two years.

BENCH:  Yes.

MR McCARTHY:  This offence usually is prosecuted involving freighters and larger vessels that cause significant damage.

BENCH:  Yes, of course.  Yes, where there’s significant – and – and you – you acknowledged early that this wasn’t at the high end of-----

MR McCARTHY:  No.

BENCH:  -----damage.  It’s very much at the low end and that’s why I thought that possibly Section 19(B) would-----

MR McCARTHY:  The difficulty is that the discretion has to be in relation to mode of punishment other than a nominal punishment and if your Worship is satisfied with a fine, even a small fine is appropriate in that type of nominal punishment.

BENCH:  Yes. Okay.  Thank you.  Yes.  Mr Taylor, what are you going to say?

DEFENDANT:  I just have submissions regarding my current financial circumstances-----

BENCH:  Yes.

DEFENDANT:  -----and obviously my regret at the – at the damage that was caused-----

BENCH:  Yes.

DEFENDANT:  -----caused to the reef, which I haven’t previously stated.

BENCH:  Well can I just, before you go into that, intimate that I think that the prosecution said that a fine somewhere in the order of about $500 would be appropriate.  Is that-----

MR McCARTHY:  Yes.

BENCH:  Am I understanding that?

MR McCARTHY:  No.

BENCH:  I would – I would agree with that.

DEFENDANT:  Thank you, your Honour.  Yes.

BENCH:  yes.  So on that basis you don’t want to make any-----

DEFENDANT:  No.  No.

BENCH:  All right.  Yes, all right.

BENCH:  Well in those circumstances you are convicted and fined $500.”

82. [82]
    The reference to an earlier discussion appears to be a reference to that which is recorded at pp 6-8 of the transcript at first instance where, from the outset, the appellant expressed a concern about the effect of a conviction. Counsel for the complainant conceded that the damage caused was at the lower end and, indeed, quite close to the lowest end of the spectrum and some discussion ensued about whether a conviction had to be recorded.

83. [83]
    While the defendant, who was self-represented, was given an opportunity to make submissions, it would appear, from a subsequent passage of the transcript of reasons, he might not have been conscious that the issue, at the time of the above exchange, was whether the court should proceed to a conviction or not. The defendant subsequently asked, “Is there a conviction recorded, your Honour?” At which point the learned Magistrate explained that was why he had been exploring the issue of s 19B and went on to add:

“But you did hear my comments that if – and let me say that this is really a matter which is at the lower end and that’s been conceded, but if there was to be some administrative action taken then rights would flow in terms of having that reviewed.”

84. [84]
    As to the first step, the subparagraph which the learned Magistrate raised in the course of submissions was that dealing with the extent (if any) to which the offence was of a trivial nature. Submissions were made on behalf of the complainant that it was not trivial, but His Honour expressed no conclusion on that issue. In my view it would have been open to His Honour to conclude that the offence is of a trivial nature. While His Honour ultimately appears to have concluded that s 19B was not available, it is unclear whether he thought that was because the offence was not trivial or because he thought the inexpediency tests were not satisfied.

85. [85]
    His Honour was evidently aware that the appellant operates his sailing school and held a marine park permit^[42], but did not otherwise discuss, or invite submissions, with respect to his character or antecedents, which are of potential relevance. It would appear from Exhibit 12 (which was before the magistrate who dealt with the state offence but not before the magistrate in this matter) that the appellant is a mature person of good character, with sailing qualifications and experience, who had, when the state offence was dealt with, put forward two references going to his personal character and sailing expertise, diligence and safety.  There is no suggestion of any relevant previous convictions (putting the State offence to one side).

86. [86]
    The learned Magistrate appears not to have considered the extent to which the offence was committed under extenuating circumstances, or did not express any conclusions or reasons in that regard. The offence was not committed intentionally or as a result of recklessness. The appellant appreciated the risk posed by the reef and plotted a course he thought would steer clear of it and took other precautions. The offence occurred in circumstances where the vessel was pushed onto the reef in the prevailing conditions, of which the appellant was unaware, and which those on deck failed to detect or respond to. The appellant’s failure to respond in time to avoid damage, arose from his failure to return to deck sooner. Those circumstances do not constitute a defence, for the reasons discussed, but are capable of being regarded as reducing the seriousness of the offence and the learned Magistrate ought, in my respectful view, to have considered the extent to which the circumstances where extenuating.

87. [87]
    Insofar as the second step of the process is concerned, the learned Magistrate was evidently conscious of the accused’s concern for the possible consequences of a conviction on his permit and his insurance, but did not otherwise traverse, in this context, the circumstances of the offence and the offender, including the matters in s 16A(2) such as the nature and circumstances of the offence (even if the circumstances were considered to fall short of extenuating)^[43], the minimal damage resulting from the offence^[44], the appellant’s contrition for the offence^[45] and his cooperation in the investigation of the offence.^[46] These were not discussed by the learned Magistrate in the context of any express finding as to inexpediency, having regard to the matters in s 19B(1)(b)(i)-(iii) (although he was evidently aware of the nature and circumstances of the offence, there was discussion about the extent of damage in the course of argument about whether the offence was of a trivial nature and the appellant had expressed regret for the offence). His Honour quickly passed to the quantum of the fine to be imposed.

88. [88]
    Insofar as whether it would be inexpedient to impose other than a nominal punishment, counsel for the complainant had submitted, in effect, that it would be expedient to punish the appellant by a small fine (and so it would not be inexpedient to impose other than a nominal punishment). His Honour imposed the fine but did not make an express finding on inexpediency and was not referred to and did not express a conclusion as to whether it would be expedient to release the offender on probation, which is another basis upon which the court’s discretion is enlivened.

89. [89]
    The conclusion is that his Honour either failed to properly consider s 19B and all relevant considerations, or failed to give adequate reasons. In those circumstances, the question whether the appellant ought be dealt with under s 19B ought be revisited.

90. [90]
    I will give the parties the opportunity to consider these reasons and to make further submissions (and make any application to call further evidence) as to whether the appellant ought now be dealt with pursuant to s 19B.