Smith v Galt[2013] QDC 117

[2013] QDC 117

DISTRICT COURT

JUDGE RS JONES

Appeal No 44 of 2012

MACKAY

DATE 15/05/2013

JUDGMENT

HIS HONOUR: This proceeding is concerned with an appeal pursuant to section 222 of the Justices Act 1886. The proceeding arises out of the prosecution of the appellant for engaging in conduct, namely fishing in a marine national park zone of the Great Barrier Reef Marine Park.

On 17 April 2012, the appellant was sentenced in the Mackay Magistrates Court to one offence in contravention of section 38BA(1) of the Great Barrier Reef Marine Park Act 1975. At the time the offences were committed, that section relevantly provided, "A person commits an offence if (a) the person engages in conduct; and (i) the conduct is engaged in a zone; and (b) under the zoning plan for the zone, the conduct (i) is prohibited for; (ii) requires permission." 

The penalty for an aggravated offence is imprisonment for three years or 2,000 penalty units or both, and in any other case, 1,000 penalty units. Relevantly here, the maximum fine that could be imposed was $110,000.

In the Court below, the appellant was convicted and fined in the amount of $25,000 together with $78 Court costs, given two months to pay and in default, three months' imprisonment.

The two grounds of appeal set out in the notice of appeal were, one, the sentence imposed was manifestly excessive and, ground two, the Court was in error in proceeding to hear and determine the case in the absence of the defendant, as it was not in compliance with section 146A(2) of the Justices Act 1886. The second ground of appeal was abandoned at the hearing of the appeal.

The circumstances of the offending were set out in the Commonwealth's outline of submissions and were not contested on the hearing before me. On 2 December 2011, officers of the Customs and Border Protection Command Service were conducting aerial surveillance of the waters of the Great Barrier Reef Marine Park when they observed three commercial fishing dories stationery inside the marine national park zone 21-1141.

Two of those dories were located near an unnamed reef and the other dory was located near another unnamed reef. They were located in areas which are commonly referred to as green zones and are defined under the Great Barrier Reef Marine Park zoning plan.

Fishing is not permitted inside those zones. The customs officers performed passes over the dories and took video footage and photographs of the vessels involved.

The officers conducted the first pass over the dory located on one of the unnamed reef and a GPS unit was used to record the vessel's location. It was determined that that vessel was located approximately 14.136 kilometres inside the nearest boundary of the marine national park zone. That dory was stationery at the time it was sighted. The officers observed the dory to bear the registration symbols FWKM3 and had one person who was identified as one Ross Greenwood on board.

The appellant here was observed to be fishing as the aircraft approached his dory. He was also seen to drop his fishing line, attempt to cover the registration symbols of his boat and attempt to get under way. The appellant here was also seen to throw something into the water. He was also seen to be retrieving a hand line. The dory occupied by the appellant was approximately 3.45 kilometres inside the nearest boundary of the national park zone. A third dory, FWKM7, occupied by one Adrian Smith, was also located and observed to be approximately 40 to 50 metres behind the dory operated by the appellant.

The appellant participated in a record of interview with the relevant authorities. During the course of that interview, he relevantly identified that he'd been a fisherman for approximately 10 years, he was in control of the dory at the time. He said that he had been within the prohibited zone for about five minutes before the plane flew over. Although having no navigational aids onboard his dory, he was able to say where he was going by reference to the wind direction.

He also told the authorities that the master of the mother ship, if I could call it that, told all the dory operators not to go inside the prohibited zones. He said, somewhat inconsistently with the observation of him having a line in the water and being seen to retrieve a line, that whilst he intended to fish in the zone, he did not actually do so.

He said, "When I've seen the plane, my line was on the deck though and I did chuck it out and go to wind it in and then freaked out and I just kept driving."  He was then asked if the line was still hanging out the back of the boat when he commenced to move away to which he responded, "It may have been. I think, yes, but I hadn't had it baited. All my line was on the deck from when I previously had been fishing before lunch. I got over there, I'd seen the plane, I threw it out, went to wind it in." 

In support of the argument that the sentence was manifestly excessive, the appellant raised three underlying reasons. They being, first, that the Court below failed to give adequate reasons for the sentence, second, that the Court failed to comply with section 13(3) of the Penalties and Sentences Act of Queensland, and third, that the sentence offended the principle of parity in sentencing.

The argument concerning section 13 of the Penalty and Sentences legislation was abandoned during argument, the appellant conceding that the relevant sentencing regime was that prescribed under 16A of the Commonwealth Crimes Act 1914. That Act relevantly provides, "(1) In determining the sentence to be passed or the order to be made in respect of any person for a federal offence, a Court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. (2) In addition to any other matter, the Court must take into account such of the following matters as are relevant and known to the Court (a) the nature and circumstances of the offence; (b) other offences (if any) that are required and to be taken into account; then (d) the personal circumstances of any victim of the offence; (e) the injury, loss or damage resulting from the offence; (f) the degree to which the person has shown contrition for the offence, (i) by taking action to make reparation for any injury, loss or damage; or (ii) in any other manner."

Subsection (g) of (2) provides, "If the person has pleaded guilty to the charge in respect of the offence, the fact that under; (h) the degree to which the person has cooperated with the law enforcement agencies in the investigation of the offence or of other offences; (j) the deterrent effect that any sentence or order may under consideration have on the person; (k) the need to ensure the person is adequately punished for the offence." 

I will deal firstly with the submissions concerning adequate reasons. In the Director of Public Prosecutions of the Commonwealth and L Karhani 1990 21 New South Wales Law Reports 370 at 378, the New South Wales Court of Criminal Appeal said, "The list of particular considerations in Section 16A(2) must be read and subject to the primary obligation of the Court stated in Section 16A subsection (1). All that Section 16A(2) requires is that the Court should 'take into account' the listed matters."

Further, in the case of the Commonwealth and Ferrier-Esis 1991 55 Australian Criminal Reports 231 and 237, again a decision of the Court of Criminal Appeal of New South Wales, Justice Hunt, with Chief Justice Gleeson and Justice Lee concurring said, "It should be said that the legislation only requires the sentencing judge to take those matters into account. It does not require judges always to refer to each of them when explaining the sentence imposed."

Of course, with respect, that is no doubt correct, but the interests of justice require a judicial decision maker to give sufficient reasons to allow the affected party and the community to be able to understand the underlying bases for the decision making process and the sentence imposed. In this case, the sentencing remarks of the Court below were as follows, "I accept his plea of guilty. I do accept that he was intentionally fishing in the prohibited zone with the clear intention to obtain a commercial advantage, namely, obviously, to make it pay. He is an experienced fisherman and he is convicted and fined the sum of 25,000 together with $78 costs of court, in default payment of those sums, to be imprisoned for three months, be allowed two months to pay in the first instance."

I should note here that the learned Magistrate quite properly proceeded on an ex parte basis, having received correspondence from the appellant that, due to work commitments, he was not able to attend and wanted to plead guilty.

Obviously by reference to the quote of the sentencing remarks to which I have referred, no mention is made as to how the plea of guilty was taken into account or how the defendant's admissions, albeit arguably not entirely fully frank, were taken into account. Further, and more importantly in my view, no attempt was made to distinguish or explain the significant difference in the sentence imposed on the appellant to that imposed on Adrian Smith, the operator of the other dory. That was a matter specifically raised by the Prosecutor below. Adrian Smith was from the same mother ship as the appellant, was observed on the same day in the same prohibited zone and only 40 to 50 metres away from the appellant. Of course, the appellant did himself no favours by not appearing. The Magistrate did not have the benefit of any submissions in mitigation, nor was any material put before him as to his particular personal financial circumstances.

However, even taking those matters into account, I have no hesitation in concluding that the reasons given by the Court below were inadequate and, in that regard, constitute an error of law in the sentencing process.

In most appeals that would be enough to allow the appeal, however, pursuant to Section 222 subsection (2)(c) of the Justices Act, in an appeal such as this where the appellant has been sentenced on his own plea of guilty, the sole ground for appeal is relevantly here that the sentence was excessive. That insufficient reasons were given does not necessarily mean that the sentence imposed was excessive.

The limited grounds of appeal in the circumstances of a defendant pleading guilty, was addressed by Judge Dorney QC in Berner and McGregor 2013 QDC 33. At paragraphs 129 and 15 and 17, his Honour observed, "The primary issue in this appeal is whether the sentence imposed with respect to the offence of disqualified driving to which the appellant pleaded guilty, was manifestly excessive. The appeal does raise for consideration the potential limitations inherent in Section 222 subsection (2)(c) of the Justices Act 1886 where, as here, a defendant pleads guilty. The matter arises because the appellant desires not only to assert the existence of manifest excessiveness, but also to raise contended specific errors in the learned Acting Magistrate's decision at first instance.

Continuing the quote, "The relevant appeal provision in the Justices Act is Section 222 subsection (2)(c). It states that an exception applies to the right of appeal under Section 222(1) where a defendant pleads guilty."  In that circumstance the person may only "appeal on the sole grounds that a fine penalty forfeiture or punishment was excessive or inadequate".

Continuing the quote, "Having canvassed those arguments, it is my conclusion that relies on anything wider than manifestly excessive or inadequate (i.e. relying on some identified error of the other kind mentioned in House and the King) is impermissible although due attention must be given to what was set out in paragraph 13 above. How the conclusion fits with the application - sorry, how that conclusion fits with the applicable principles governing an appeal by way of rehearing was discussed in Lacey and the Attorney General (Queensland). Before the powers of a Court to set aside a primary decision are enlivened, demonstration is required of some error on the part of the primary Court."

In this appeal, it is not necessary for me to resolve those apparent tensions identified by Judge Dorney. Here, as was the case in the Queen and KU ex parte the Attorney General No 2 2011 1QDR439 at paragraph 100, "The lack of any meaningful reasons reveals an error of law demonstrating miscarriage of the sentencing process which resulted in a manifestly excessive sentence." 

That the sentence was manifestly excessive was, in my respectful view, largely as the result of the failure of the Court below to be properly advised in regard to and to consider the different sentences imposed on Adrian Smith when compared to those intended to be imposed on the appellant. I have already identified the factual circumstances involving the appellant and Adrian Smith and it is also noteworthy in this context that the particulars of the relevant offending were materially the same.

In the Magistrates Court concerning Adrian Smith the evidence clearly revealed that he was intentionally in the prohibited area. He knew where he was. And the evidence also revealed that he intended to fish in that area.

In the proceeding before Adrian Smith the Prosecutor relevantly said, "Mr Adrian Smith, the defendant, said that he was a fisherman for 27 years. He was in Dory FWKM7. Asked to explain what had happened on the 2nd of September 2011 he responded 'No, next question mate. Just next question, mate. Yep. The anchor went back to the Jacoby when the coast guard plane flew over.'"  I note here that the reference to the Jacoby seems to be a reference to the mother ship. He was later asked if there was anything else he wanted to say by way of excuse. And he said, "Excuses, what's that mate?  I'm going broke, that's about it. Fucking got to end up there to make money."

Later the learned Prosecutor said in his submissions on sentence, "As a result of obtaining this information from the GPS units he was offered a further interview on the 12th of October 2011 during which he stated he was driving around inside the marine on the 2nd of September - he was driving around inside the marine park. He was looking for somewhere to fish but the currents were too strong and out of control.

On 31st of August he was just inside a marine national park and said, 'Yeah, too much run to fish. I just went over and had a look. Yeah, no, just got out there because I couldn't fish, nothing so bailed.'  He was inside the marine park for over two hours. He said that he had used a viewing bucket to look and on the 1st of September acknowledged that he was inside a marine park and he had used a viewing bucket at the time. Using a viewing bucket, of course, falls within the extended definition of fishing under the zoning plan."

Notwithstanding those observations before the Court below when dealing with Adrian Smith, in the proceedings concerning the appellant the Prosecutor said, and I understand this to be a different Prosecutor. He said at transcript reference 14L10 to 25.

"Your Honour, that of course means that there is some disparity between he and co-offender Smith who has been dealt with, who was dealt with for three offences. The circumstances of that offending was, your Honour, that he was detected on this day; his GPS was seized and there were tracks of him fishing which led to an allegation to which he pleaded guilty.

He was fishing on the previous two days in the same area or at least in nearby areas in a marine national park zone. There was on each occasion there no evidence of intention. The intention that's evidence in this matter here, but applying the indistinct the principle requirement was arrived at for those three offences, accepting a starting point of $5,000 for offence was 9,000.  

So your Honour that's a submission of the prosecution there is to my knowledge under section 38B(a) to date no offence or comparatives, at least, your Honour, where the offenders have been sentenced on the basis that they were intentioned on breaching the legislation."

It seems tolerably clear to me that the Prosecutor there was attempting to distinguish the circumstances of the appellant's fishing by reference to that of Adrian Smith's by saying the two matters could be distinguished because in the case of Adrian Smith there was no evidence of Adrian Smith intentionally fishing in the prohibited zone. That was clearly wrong. The statements made by Adrian Smith clearly show that he knew that he was located in a prohibited area intending to fish. The only material difference that I can discern is that while Adrian Smith did not have a line in the water, the appellant did.

It would appear that no issue was taken with the appellant's assertion that the line had only been in the water for a relatively short period of time. And, as I've already indicated, the reasons why Adrian Smith did not have lines in the water had nothing to do with the lack of intention, they had more to do with a lack of fish and or natural conditions such as current.

It was, in my respectful view, an erroneous distinction to make between the levels of offending between Adrian Smith and the appellant, that is in both cases there was clearly an intention to fish within the prohibited zone. While not strictly speaking co-offenders, the appellant had every right to feel aggrieved when regard was had to the fines imposed on Adrian Smith.

The principles of parity in sentencing are not limited to co-offenders in the strict sense. I refer there to the case of Jimmy and the Queen [2010] New South Wales Criminal Court of Appeal 60, particularly in respect of the judgment of Justice Howie at paragraphs 245 and 246.

As I've said the appellant had every right to feel aggrieved on a parity basis. The sentence imposed on him is, in my respectful opinion, manifestly excessive in comparison to that imposed on Adrian Smith. That of course does not mean that the appellant's penalty ought automatically be brought into line with that imposed on Adrian Smith.

In Green and Quinn and the Queen [2011] 244 Commonwealth Law Reports 462 the following statement appears in the reasoning of the Court at paragraph 33.

"There is a question whether a sentence which would otherwise be appropriate can be reduced on the ground of disparity to a level which had there been no disparity would be regarded as erroneously lenient. In Lowe, that question was answered explicitly in the affirmative by Mason J and less explicitly but to the like effect by Dawson J with whom Wilson J agreed.

It has also been answered in the affirmative in a number of cases in the Court of Criminal Appeal of New South Wales. On the other hand as Simpson J correctly pointed out in R v Steele, 'The existence of a discretion where unjustified disparity is shown to reduce to a co-offender's sentence to one which is inadequate does not amount to an obligation to do so. Certainly the discretion of the Court of Criminal Appeal to reduce a sentence to a less than adequate level would not require it to consider reducing the sentence to a level which would be as Street CJ put it in R v Draper, 'An affront to the proper administration of Justice'. Moreover, if the relevant sentencing legislation on its proper construction does not permit an inadequate sentence to be imposed, there can be no discretion on appeal to impose one. Whether or not the discretion to reduce a sentence to an inadequate level is available marked an unjustified disparity may be mitigated by reduction of the sentence appealed against to a level which, although lower, is still within the range of appropriate sentences.'"

Here a fine in the order of $3000, by reference to the schedule of cases provided by the Commonwealth, would in my view amount to an affront to the proper administration of Justice.

By reference to that schedule, fines of that order seem to be imposed in those cases which could be described as having occurred as a consequence of negligence as opposed to deliberate fishing.

Also in this context, it needs to be borne in mind that the fines imposed on Adrian Smith were materially reduced because of the evidence put before the Court concerning his financial circumstances.

That said, though, in my respectful opinion, the sentences imposed were - on the appellant was manifestly excessive having regard to the cases to which I have been referred. For the reasons given the appeal ought be allowed.

The next matter that needs to be considered is what ought to be done next. The matter could be remitted to another Magistrate pursuant to section 225 subsection 2 of the Justices Act, that might allow the appellant to seek leave to put evidence before the Court on matters such as his financial capacity and other matters of mitigation. In that context the learned Magistrate might not feel so confined as the constraints imposed upon me on an appeal such as this pursuant to section 223 subsection (2) of the Justices Act.

However, that course of action was not pressed by the appellant and as a matter of practicality it strikes me that the costs of that approach might well offset or even go beyond the extent of any benefits derived from such a course of action. On balance I have decided that it is more appropriate to deal with the imposition of a fine now.

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 3000 and to $7500. At the upper end of the scale are those offences involving masters of motherships, cases involving dead and live ship being found in the possession of the fisherman and the use of longlines. Fines for this category range from in the order of $27,500 up to $40,000. The level of offending involved here falls well below the upper level to which I have just referred.

The cases concerning single Dory operators are not at all easy to reconcile. In Offord, a Dory operator was fined $25,000. He was observed fishing with a line in the water. That bears some similarities to the case here. However, in that case the defendant led the authorities on a 20 to 25 pursuit and at the hearing of the matter made a number of fallacious submissions which the Magistrate described as being capable of driving a truck through.

In Oliver, the operator was fined $22,500 however, Oliver had a previous conviction which the appellant does not. Also of concern in Oliver is that he was sentenced with another fisherman, Dignan, from the same mothership who was fined $25,000. However, on appeal Dignan's fine was reduced to $4000 after a re-opening of the case and where apparently Dignan was found to have been fishing not deliberately in a prohibited area but negligently. Oliver apparently did not appeal.

Finally in this context, in Margitich, the defendant was charged with intentionally fishing in a prohibited zone. Notwithstanding that he made admissions, he was sentenced to a fine of $7000 on the basis that the intrusion into the zone was negligent and not deliberate.

The appellant's primary position was that his fine should be in line with those imposed on Adrian Smith. While at first blush that approach may seem attractive it would be wrong for the following reasons. First, it is clear that the learned Magistrate took into account Adrian Smith's personal financial ability to pay the fines imposed, here no such evidence was before the Magistrate nor before me.

Second, unlike Adrian Smith the appellant was actually fishing with his line in the water at the time even if for only a short period of time. That seems to be a circumstance of aggravation by reference to the cases that I was referred to by the Commonwealth. In this context I should say that I cannot accept that the appellant had his line in the water but with an unbaited hook.

The last reason is that even allowing for a reduction for Adrian Smith's financial circumstances, a total fine of $9,000 for three offences of fishing in a prohibited area involving an experienced fisherman with a previous conviction and fishing in the face of a recent warnings still seems to me, with respect, to be an extremely lenient sentence.

The appellant's fallback position was that the fine of $25,000 should have been reduced by about two-thirds to take account of the appellant's early plea. The difficulty with that submission is that many of the cases referred to in the Commonwealth schedule involved early pleas and a number were dealt with, as was the case here on an ex parte basis.

I should mention here that the counsel for the appellant did not direct my attention to any other relevant precedent nor was it contended that the list of cases provided by the Commonwealth ought be disregarded.

Bearing in mind the difficulty in trying to reconcile the cases to which I've been referred, 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. Aggravating features such as prior convictions and fishing in the face of warnings etc might see the penalty tend towards the upper end of that range. I fully realise that this is an extremely wide range but it is the best I can do on the precedents before me.

In reaching this conclusion I draw some comfort, albeit to a limited extent, from the range contended for by the prosecutor in the Adrian Smith case. He initially contended for a fine of in the order of 5,000 to $7,500 for each offence. Bearing in mind that Adrian Smith was facing three similar offences and one associated offence, it seems clear by reference to the transcript concerning Adrian Smith that the prosecutor was discounting for bulk, if I could put it that way.

The appellant has pleaded guilty to, in effect, fishing deliberately in a prohibited area and that he was fishing in the real sense in that he had a line in the water even if, as I've said, for only a short period of time. Bringing that aggravating feature into account but also taking into account the appellant's assistance with the administration of justice by pleading guilty and allowing the matter to be dealt with on an ex parte basis. And taking into account that the appellant has no previous convictions I consider that a fine at the lower end of the range identified by me earlier is appropriate.

1. The appeal is allowed
2. The sentence of the Court below is set aside.
3. In lieu of that sentence, the following sentence is imposed in substitution; That the appellant is convicted and fined the sum of $8,000 and is ordered to pay the sum of $78 being costs of the Court.
4. I further order that those penalties be referred to the State Penalties Enforcement Registry
5. I further order that in default, the appellant be sentenced to one month imprisonment.
6. The respondent is to pay the appellant's costs of the appeal, the quantum of such costs to be determined.