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Levinge v Department of Agriculture and Fisheries[2020] QDC 179

Levinge v Department of Agriculture and Fisheries[2020] QDC 179

DISTRICT COURT OF QUEENSLAND

CITATION:

Levinge v Department of Agriculture and Fisheries [2020] QDC 179

PARTIES:

BRIAN LEVINGE

(appellant)

v

DEPARTMENT OF AGRICULTURE AND FISHERIES

(respondent)

FILE NO/S:

BD No. 13 of 2019

MC No. 1604 of 2018

MC No. 1605 of 2018

DIVISION:

 

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Maryborough (Date of Decision: 4 September 2019)

DELIVERED ON:

7 August 2020

DELIVERED AT:

Brisbane

HEARING DATE:

22 July 2020 in Maryborough

JUDGE:

Jarro DCJ

ORDER:

  1. Appeal allowed.
  2. The penalty imposed below is varied to the extent that the fine of $40,000 is set aside and in lieu thereof a fine of $20,000 is imposed.
  3. The orders made by the learned Magistrate on 4 September 2019 are otherwise affirmed.

CATCHWORDS:

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – GROUNDS – where appellant pleaded guilty in the Magistrates Court to 20 offences against the Fisheries Act 1994 and the Fisheries Regulation 2008 – where the Magistrate imposed a penalty in the form of a fine of $40,000 – where appellant was also ordered to pay costs – where appellant appeals the sentence on the ground that the fine was excessive - whether the fine imposed was excessive – whether the Magistrate failed to adequately take into account the appellant’s financial circumstances

Fisheries Act 1994, s 87, s 79A

Fisheries Regulation 2008, s 596, s 600, s 642

Justices Act 1886, s 222, s 223, s 226

Penalties and Sentences Act 1992, s 9, s 48

Avery & Ors v Queensland Police Service [2019] QDC 21, applied.

Bone v Mothershaw [2001] QDC 255, applied.

COUNSEL:

E G Bassett for the appellant

K T Bryson for the respondent

SOLICITORS:

Aboriginal and Torres Strait Islander Legal Service (Qld) for the appellant

In-House Legal, Department of Agriculture and Fisheries for the respondent

Introduction

  1. [1]
    The appellant appeals against the sentence imposed in the Magistrates Court at Maryborough on 4 September 2019 following his pleas of guilty in relation to 20 offences against the Fisheries Act 1994 and the Fisheries Regulation 2008.  The learned Magistrate imposed one penalty in the form of a fine of $40,000.  The appellant was also ordered to pay costs in the amount of $2,060.95 in outlays and court costs of $95.80.  It is said on behalf of the appellant that the penalty was excessive and there was “failure to adequately take into account [the appellant’s] financial circumstances”. 
  2. [2]
    The appeal is brought under s 222 of the Justices Act 1886.  As the appeal relates to sentence only, s 222(2)(c) mandates that the aggrieved may only appeal on the sole ground that a fine was excessive. 
  3. [3]
    I respectfully adopt the procedure usefully identified by Lynham DCJ in Avery & Ors v Queensland Police Service [2019] QDC 21 at [8] – [14] regarding the approach to be taken in the present instance.  His Honour stated:

Relevant principles

  1. [8]
    The present appeal is brought under s 222 JA. As the appeal relates to sentence only, s 222(2)(c) governs the appeal:

“(c) if a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate.”

  1. [9]
    Pursuant to s 223 of the Act, an appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave. S 223 provides:
  1. (1)
    An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.
  1. (2)
    However, the District Court may give leave to adduce fresh, court is satisfied there are special grounds for giving leave.
  1. (3)
    If the court gives leave under subsection (2), the appeal is –
  1. (a)
    by way of rehearing on the original evidence; and
  2. (b)
    on the new evidence adduced.
  1. [10]
    In an appeal by way of rehearing, “the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error…”[1]
  2. [11]
    In House v The King, the manner in which an appeal against an exercise of discretion should be determined was expressed by the majority as follows:

“… It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.”[2]

  1. [12]
    More recently, in Teelow v Commissioner of Police [2009] 2 Qd R 489, Muir JA at [3]-[4] considered the principles to be applied on an appeal by way of rehearing under s 223 of the Act as follows:

[3]   A characteristic of an appeal "by way of rehearing" is that the appellate court, subject to its powers to admit fresh evidence, rehears the matter on the record of the court from which the appeal comes. In Scrivener v Director of Public                             Prosecutions, McPherson JA, referring to an appeal "by way               of rehearing" under r 765(1) of the Uniform Civil Procedure               Rules 1999, observed:

"It is well settled that a provision that characterises an appeal to this Court as a 'rehearing' ordinarily refers to a rehearing on the record, and not to what is sometimes called a rehearing de novo: see Powell v Streatham Manor Nursing Home [1935] AC 243, 263. On such a rehearing the appellate court has power to draw inferences from primary facts, including facts found and facts not disputed, which is as complete as that of the primary judge: see Warren v Coombes (1979) 142 CLR 531, 537-541. On the other hand, an appeal under that form of procedure does not involve a rehearing of witnesses … Further evidence may be received on appeal, but only on special grounds: see r 766(1)(c) …”

[4] It is a normal attribute of an appeal by way of rehearing that “the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error … At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance.” On an appeal by way of rehearing an appellate court can substitute its own decision based on the facts and the law as they stand at the date of the decision of the appeal.”

  1. [13]
    Where, as here, it is argued that the sentence imposed is excessive, the observations of Chesterman J in R v Jackson [2011] QCA 103 at [25] are apposite: “The cases do suggest that the applicant has been punished severely. That, however, does not dispose of the application. To succeed the applicant must demonstrate that the sentence imposed was beyond the permissible range, not that it was severe, or that a lesser punishment would have been appropriate, or even more appropriate than the one in fact imposed. There is no one “right” penalty in any case. There is always a range of permissible sentences. Different judges legitimately put weight on different circumstances and their opinions must be respected unless the sentence imposed is beyond the allowable range, or is otherwise affected by an error of fact or law.”
  2. [14]
    Finally, the principles which are to be applied when determining an appeal against sentence under s 222(2)(c) JA were, in my view, correctly distilled by Devereux DCJ in Rongo v Commissioner of Police [2017] QDC 258, where his Honour helpfully observed at [22]–[23]:

“[22] My view of it is that the purpose of that provision is to focus the appellate proceeding on whether the sentence imposed was excessive. Whether a sentence is “manifestly excessive” can be assessed against various criteria. They are collected neatly in R v Morse [1979] 23 SASR 98. King CJ, with whom the other two members of the court agreed, said: To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime; the standards of sentencing customarily observed with respect to the crime; the place which the criminal conduct occupies in the scale of seriousness of crimes of that type; and the personal circumstances of the offender.

[23] It seems to me, then, that the focus in this and many appeals brought to this court on attempting to demonstrate an error in the exercise of the sentencing discretion is not misguided but slightly misplaced. The real question is whether the sentence was excessive, so that, although the appellant may argue that the magistrate made a certain error, the success of the appeal does not depend on persuading the appeal court on that point. On the other hand, successfully demonstrating an error does not guarantee success of the appeal, because, in each case, the question is whether the sentence was excessive.”

  1. [4]
    It is with these principles in mind that I will consider this appeal.

Background Matters

  1. [5]
    The fine imposed in the Magistrates Court of $40,000 arose from 20 offences, namely:
    1. (a)
      15 offences committed between 1 November 2016 and 19 March 2018 of unlawfully interfering with fishing apparatus in contravention of s 87(1) of the Fisheries Act 1994;
    2. (b)
      Four offences committed between 16 and 20 March 2018 of failing to comply with conditions of an authority which applied to him contrary to s 79A of the Fisheries Act 1994:
      1. using more than 50 crab pots in contravention of s 596(2) of the Fisheries Regulation 2008;
      2. failing to mark some of his crab pots in contravention of s 600(1) of the Fisheries Regulation 2008;
      3. failing to use 15 centimetre floats in accordance with s 600 of the Fisheries Regulation 2008;
      4. failing to mark some of his floats with his boat mark in accordance with s 600(2) and (6) of the Fisheries Regulation 2008.
    3. (c)
      One offence committed between 16 and 20 March 2018 of failing to mark crab apparatus legibly and visibly in contravention of s 642 of the Fisheries Regulation 2008.

Sentence in the Magistrates Court

  1. [6]
    An agreed statement of facts regarding the offences was tendered before the learned Magistrate at the time of sentence.[3]  In short compass, the appellant defendant, who is a holder of a commercial fishing license, came to the attention of the Queensland Boating and Fisheries Patrol Inspectors during an audit they were conducting following reports from commercial fishermen that their fishing apparatus had been interfered with.  Investigations revealed the appellant was in possession of fishing apparatus belonging to 10 different persons or entities.  In respect of two of the persons identified, the defendant was in possession of multiple fishing apparatus belonging to those persons.  The defendant was found to be in breach of the commercial fishing licence conditions imposed upon him in that he had 51 crab pots in operation, in excess of the 50 crab pots he was permitted.  Further, he was found to have illegally marked his own crab pots, failed to use 15 centimetre floats as prescribed and failed to mark the floats appropriately.[4] 
  2. [7]
    In the proceedings before the learned Magistrate, the prosecution sought, in addition to the imposition of a fine between $35,000 and $45,000, suspension of the defendant’s commercial fishing licence for five years.[5]  It was submitted on behalf of the defendant that his instructions were “for the lesser fine, taking into account the five year loss or suspension”.[6] The defence submitted to the learned Magistrate that a suspension of the appellant’s commercial fishing licence would have a crushing effect on the defendant and that a fine in the order of $15,000 should be imposed. 
  3. [8]
    The learned Magistrate exercised his discretion not to suspend the defendant’s commercial fishing licence.  In doing so, his Honour stated:

“As a general rule of thumb, the charge, if it was more serious than today – I accept it is a serious offence per se.  However, I do not accept the offending goes to the higher end of the scale.  The number of crab pots, you were four over.  If it was a significant amount of number over there I would not even be giving this the consideration that I have been up to this point.  But in my view, whilst I accept the offending is serious, as a commercial fisher, you should have known better.  You have got four before previous for it.  You really should have known.  Then I have regard to the submissions made by [defendant’s solicitor]. …  I will use the word that is often used – is it crushing?  Five years without basically employment.  In my view, it would be a crushing sentence.”[7]

  1. [9]
    In ordering that the appellant be fined $40,000, the learned Magistrate accepted the defendant’s pleas were early, noted the defendant’s antecedents, his criminal history as well as offences previously committed “under Fisheries legislation”, the serious nature of the charges and the need for both general and personal deterrence. 
  2. [10]
    Regarding the defendant’s previous history of non-compliance under the Fisheries Act 1994, offences have been committed by him on multiple occasions from 7 October 2004 to 23 December 2017.[8]  The past offences required the issuing of infringement notices, an official caution, as well as appearances in the Magistrates Court at Maryborough and Hervey Bay on five occasions.  The defendant’s last appearance in the Magistrates Court was on 9 April 2015 for two offences committed on 27 May 2014 under s 79A of the Fisheries Act 1994 for failing to comply with a condition of authority.  He was fined $3,500.[9] 
  3. [11]
    It was highlighted on behalf of the respondent to this appeal that prior to the present offending, the defendant had been fined a total of $23,461 over the years which did not deter his offending.[10]  
  4. [12]
    Further regarding the appellant’s previous history of non-compliance under the Fisheries Act 1994, on 18 March 2015 he successfully appealed to the District Court following a conviction in the Magistrates Court for a series of offences under the Fisheries Act 1994.  At first instance, he was fined in excess of $90,000 which was reduced on appeal by Botting DCJ.  His Honour varied the fines imposed below in respect of the first count by deleting the amount originally imposed of $38,500 and inserting in lieu thereof the amount of $6,000, in respect of the second count by deleting the amount imposed of $38,500 and inserting in lieu thereof a fine of $3,500, and, in respect of the third count by deleting the amount imposed of $33,500 and inserting in lieu thereof the amount of $5,000.[11] 
  5. [13]
    The prosecution provided written submissions on sentence to the learned Magistrate.[12]  One annexure to that document included what was described as comparative sentences.[13]  It was submitted on behalf of the appellant that none of the sentences referred to at first instance supported a fine as contended for by the prosecution. 
  6. [14]
    The respondent has submitted that the sentence imposed was not manifestly excessive, nor was there an error in the sentence imposed.  The learned Magistrate, it was submitted, did not err in the exercising of the sentencing discretion and the sentence imposed was a just sentence in all of the circumstances.  In this respect it was highlighted on behalf of the respondent that the standout feature of the present case is the recidivist nature of the appellant’s offending which makes the conduct particularly aggravating.  A condign punishment was called for in the circumstances in order to address principles of personal and general deterrence and to denounce the appellant’s conduct.  It was submitted that in circumstances where comparative decisions are of little assistance, it was useful to refer to the sentencing guidelines as outlined in s 9 of the Penalties and Sentences Act 1992.  Further, the maximum penalties able to be imposed by the learned Magistrate at the time of sentence totalled $999,108 and the sentence imposed in the present case is less than five percent of the maximum available.  It was submitted that the learned Magistrate clearly had regard to the appellant’s ability to pay such a fine when he exercised his discretion not to suspend the commercial fishing licence.
  7. [15]
    I do not accept the submission that the learned Magistrate clearly had regard to the appellant’s ability to pay such a fine when he exercised his discretion not to suspend the commercial fishing licence because very little was revealed to his Honour of the defendant’s financial circumstances.  The only extent to which the learned Magistrate was informed about the defendant’s financial circumstances was in the following submission made by the defendant’s solicitor:

“He instructs that, in choosing that career move from diesel fitting to go into fishing or commercial fishing, he suffered a very significant pay cut.  From memory, he instructs he was earning about $110,000 a year which was reduced to around $30,000 a year.  Of his children, your Honour, two of them still live at home rent-free.  He’s been providing financial support to them.  He also has the three grandchildren that I’ve referred to.  And he assists in providing care to his father who has that dementia that I’ve referred to.”[14]

  1. [16]
    The submission was adopted into the learned Magistrate’s extemporaneous remarks where his Honour stated:

“You took a significant pay cut from going to the – working in the mines to the fishing industry.  [The appellant’s solicitor] says it went back from about $110,000 to $30,000.  You’ve got three children.  It did not escape my attention that two of them are at home rent-free.  I did note that comment made by [the appellant’s solicitor] and you also provide care, obviously, to them, your family.  You also provide care to your father.”[15]

Disposition of the Appeal – Error and Excessive Penalty

  1. [17]
    When imposing a fine, s 48 of the Penalties and Sentences Act 1992 relevantly provides:

“48 Exercise of power to fine

  1. (1)
    If a court decides to fine an offender, then, in determining the amount of the fine and the way in which it is to be paid, the court must, as far as practicable, take into account –
  1. (a)
    the financial circumstances of the offender; and
  1. (b)
    the nature of the burden that payment of the fine will be on the offender.
  1. (2)
    The court may fine the offender even though it has been unable to find out about the matters mentioned in subsection (1)(a) and (b).

…”

  1. [18]
    Therefore as far as practicable, when imposing a fine, a court must take into account the defendant’s financial circumstances and the nature of the burden that payment of the fine will be on the offender.  However the court may still fine the offender even though those matters are unable to be ascertained.  In other words, the power to fine will remain even if the court is unable to find out about such matters.  Nevertheless as has been thoroughly considered by Lynham DCJ in Avery[16] at [22] – [27]:

[22] S 48 PSA mandates that in determining the amount of the fine and the way in which it is to be paid, a court is to take into account both the financial circumstances of the offender as well as the nature of the burden that payment of the fine will be on the offender. S 48 reflects common law principles relevant to a determination of the quantum of a fine to be imposed upon an offender.  For example, in Fry v Bassett (1986) 44 SASR 90 at 92, Olsson J explained the common law principles as follows:

‘It seems to me that, in determining penalty, the learned magistrate was bound to bear in mind two cardinal principles.

The first is that, if the Court is contemplating the imposition of a fine, with its alternative default period of imprisonment, there must be a true alternative and not an illusory one.  It is nothing short of a contradiction in terms to impose a fine which a defendant has little or no prospect of paying, it being highly likely (if not almost a certainty) that he will have to serve the appropriate default period (Reith v Liersch (1970) 55 LSJS 525 at 526; R v Hall (1968) 52 Cr App R 736 at 738).

The second is that, if it is appropriate to impose a fine the quantum of it must in any event be related to the means of a defendant in some logical manner, particularly in the case of persons who are of very limited resources.  Whilst fines must, in general, constitute a proper reflection of the gravity of the offending, nevertheless subjective consideration must be given to what level of fine will act as a sufficient level of punishment to a defendant in his particular circumstances.  A modest fine towards the lower end of a permissible spectrum may well constitute a very salutary penalty and impose significant hardship on an impecunious person whereas, in the case of a person of means, a penalty higher along the relevant spectrum of reasonable tariffs may be more appropriate.’[17]

[23] To similar effect, it was held by Roberts-Smith J in Djou v Commonwealth Department of Fisheries [2004] WASCA 282:

[24] It is a well-established principle of law that in sentencing an offender, it is generally improper to impose a fine that is beyond the capacity of the offender to pay.  As Owen said in Perez, at [47]:

Quite clearly, the general rule is that a fine should not be imposed without an assessment of the means of the offender to pay it, and should not be imposed where the offender has no means to pay.  I have already referred to Sgroi in this respect.  See also Flego v Lanham (1983) 32 SASR 361 at 366; Fry v Bassett (1986) 85 FLR 334 at 336; Rahme v The Queen (1989) 43 A Crim R 81 at 86.  The same general principle has statutory recognition, at least in so far as it relates to an inquiry concerning the means of the offender: Crimes Act 1914 (Cth), s 16A(2)(m) and s 16C(1).’

[24] That s 48 PSA mirrors the common law with respect to the considerations relevant to quantifying a fine to be imposed on an offender is supported by the reasons of McGill DCJ in Kumar v Garvey [2010] QDC 249 at [28] – [30]:

[28] As a matter of general sentencing principles the penalty imposed must be appropriate to the offender as well as appropriate to the offence.  A fine should not be imposed which is beyond the reasonable capacity of the offender to pay.  That applies even if there is no period of default imprisonment, as was the case here where the matter was referred to SPER for collection.  It is also necessary to scale the fine to the capacity of the offender to pay in order to comply with the requirements of s 48(1)(b), because imposing the same fine on people with different capacities to pay will mean that some of them are punished much more severely than others for the same offence.  This was the point made by McMurdo DCJ (as the President then was) in Allan v Coca where a fine imposed on a defendant receiving Austudy of $75 per week was halved.  Her Honour held that the fine “would have been a greater penalty than a substantially larger fine imposed upon an older person with a greater capacity to pay.”

[29] One way to look at the matter is by comparing the amount of the fine with the weekly income of the offender, though it is still necessary to have regard to differences in the financial obligations of different offenders: one offender who has no or minimal housing costs and no one to support will be in a much better financial position than someone on the same income who is paying rent and has dependents.  There is also the consideration that the financial position of the offender is not to be assessed in the abstract, but as part of the whole sentencing process.  In the present case, there was good reason to believe that the appellant’s financial position, which was quite modest anyway, would suffer a significant additional burden as a result of the lengthy period of disqualification which he had to suffer as a result of the offences.  The magistrate appears to have recognised that it was appropriate to take into account the relationship between the different parts of the penalty imposed in connection with the overall sentencing process, but it is difficult to see how due regard was paid to that, given the amount of the fines imposed.

[30] I expect fines of the order imposed by the magistrate are common enough for offences of this nature for ordinary offenders, but the point is that the appellant was not an ordinary offender: his financial position was substantially worse than the average to be expected in the community.  In my opinion there was a failure to have sufficient regard to that consideration and as a result the discretion as to the amount of the fine miscarried.’ (citations omitted)

[25] To like effect, in R v Prentice [2003] QCA 34 Williams JA, in accepting that the capacity of an offender to pay a fine will always be a relevant consideration for a court when assessing the quantum of the fine ordered to be paid, observed at [21] – [22]:

[21] Though reference was made in the sentencing remarks to the applicant’s “capacity to pay” it is unlikely that payment of the fine in total could be realistically achieved.  I said in R v Kiripatea [1991] 2 Qd R 686 at 702 (with the concurrence of Shepherdson and Ambrose JJ) that a sentence “should not be a crushing one, and there is good reason for avoiding a sentence which would effectively destroy any hope a prisoner may have for rehabilitation”.  Those remarks are, to my mind, apposite here.  The fine in fact imposed is a crushing one and, if the applicant realistically sees he has no hope of satisfying it, the fine loses its effectiveness; the default provision becomes the sentence in fact.

[22] Though fines of the magnitude imposed by the sentencing judge are appropriate to offences of this type when committed in the context of substantial business operations, the fine here, given the personal circumstances of the applicant, is manifestly excessive.’

[26] Accordingly, s 48 PSA is clear in its terms that the financial circumstances of an offender is a mandatory consideration which a court is obliged to have regard to when determining the quantum of a fine to impose.  Nonetheless, other sentencing considerations will remain important to the exercise of the sentencing discretion when determining the quantum of the fine including the seriousness of the offence, its prevalence as well as considerations of both general and personal deterrence.[18]  As Malcolm CJ observed in Sgroi v R (1989) 40 A Crim R 197 at 200-201:

‘Where the fine is appropriate it should not be used merely as a soft option but should have some real sting in it from the point of view of the offender and be sufficiently punitive to act as a general deterrent.’

[27] Where an offender is to be sentenced for more than one offence founded on the same facts for which a single fine is permitted to be imposed, totality will also have to be considered when assessing the total amount of the fine imposed.”[19]

  1. [19]
    In my respectful view the discretion as to the amount of the fine miscarried and was beyond the permissible range as it was disproportionate to the defendant’s circumstances, despite the need for personal and general deterrence.[20]  As to deterrence, the observations of Dodds DCJ in Bone v Mothershaw [2001] QDC 255 remain apposite.  His Honour stated:

“It should be understood that it is not some lesser type of offence because it is an environmental offence.  Increasingly the community regard the environment in which we live as important…  any penalty must … make it clear to others who may be tempted for financial gain or other reasons to commit this sort of environmental harm or serious environmental harm, that if they do it and they are detected serious punishment will follow.

I think the community now expects penalties that visit real pain upon offenders to be meted out in respect of environmental type – offences.”[21]

  1. [20]
    However despite the need for deterrence, the fine imposed in the present matter was higher than the defendant’s annual income.  In my view it was crushing and one beyond the defendant’s capacity to pay.  Given the defendant’s limited financial capacity, the punishment seems much more severe than that of another commercial fisher whose earnings are significantly more.  I am cognisant that the learned Magistrate decided not to suspend the defendant’s commercial fishing licence.  Perhaps that was why his Honour imposed a larger fine.  However I consider the amount of the fine imposed on this occasion was disproportionate.  This would seem to have been the result of a sparsity of information having been available to the learned Magistrate regarding the defendant’s ability to pay a large fine. 
  2. [21]
    Further, the comparables which were furnished at the appeal and before the learned Magistrate, whilst not identical to the particular circumstances relevant to the present appeal, lead me to form the view that perhaps a lesser penalty ought to have been imposed than that which ultimately was made against the defendant.[22]  Those cases did not support a fine in the region submitted by the prosecution.  Indeed the highest fine imposed was $25,000 in the matter of Tonata at the Southport Magistrates Court on 19 December 2014.  However the offending on that occasion involved a defined amount of loss of product and income whereas in the present instance the extent of the loss sustained by other commercial operators at the hands of the defendant is not known.  The remainder of the cases involved one fine of $10,000, two of $7,000, five of $5,000, one of $4,000 and two of $3,000.  They were for less serious offending than that of the defendant.  However I do agree with the submission advanced on behalf of the appellant that not one of the cases relied upon by the prosecution supported a fine in the range contended for by the prosecution below.
  3. [22]
    The defendant is 53.   He was born in Maryborough and “pretty well worked his entire life and supported his family”.[23]  He has been in a relationship for 28 years and has three children and three grandchildren.  The defendant left diesel fitting because his father, who commercially fished for 30 to 40 years, wanted his son to take over the business.[24]  His father now suffers dementia.  As noted earlier, the defendant’s earning capacity reduced from $110,000 to $30,000 when he moved into commercial fishing.[25]  He is a commercial fisherman and derives his sole source of income from this employment.  The defendant has a seven page criminal history spanning 30 years. 
  4. [23]
    In determining the quantum of the fine to be imposed, having regard to the seriousness of the offences, the maximum penalty of each offence, its prevalence as well as considerations of both general and personal deterrence, weighed against the early plea and the appellant’s personal circumstances, a global fine of $20,000 should be imposed.  It is clear the defendant would have a stronger capacity to realistically pay this amount and the sentence would not be crushing (yet nonetheless serve as a more effective personal deterrent).  The imposition of a fine of $20,000 reflects what I consider to be the relevant features.  I therefore allow the appeal to the extent of varying the fine to this amount.

Costs

  1. [24]
    At the hearing of this appeal, each party sought their respective costs limited to the Justices Regulation in the event they were successful.  Section 226 of the Justices Act 1886 permits the power to award costs.  It is a discretionary matter.  Whilst it is clear the appellant was successful in the appeal, it does not necessarily follow that costs should follow the event.[26]  Further costs are not to be awarded by way of punishment of the unsuccessful party and, if costs are to be awarded, they are to compensate the successful party against its costs of successfully resisting the appeal.[27]  I do not consider there is any disentitling conduct on the respondent’s part.  In the exercise of my discretion, I consider the just outcome in this particular appeal is one in which neither party should be the recipient of a compensatory order.  There will, accordingly, be no order as to costs.

Order

  1. [25]
    In the circumstances, I allow the appeal, fine the defendant $20,000 and, reaffirm the order at first instance requiring the defendant to pay costs in the amount of $2,060.95 in outlays and costs of the court of $95.80.

Footnotes

[1]Allesch v Maunz (2000) 203 CLR 172 at 180.

[2]  (1936) 55 CLR 499 at 504-505.

[3]  See Annexure A to the appellant’s outline of submissions.

[4]  See Respondent’s Outline of Argument at [2.3] – [2.7].

[5]  Despite the prosecution’s written submissions in a document entitled Submissions on Sentence (Prosecution) indicating that it was “open” to suspend, the oral submissions advanced below sought suspension of the defendant’s licence, in addition to a fine:  see T1-21 – T1-22.

[6]  T1-22, ll 37 – 39.

[7]  T6, ll 33 – 43.

[8]  For further details of the appellant’s history of non-compliance against the Fisheries Act 1994, see [3.3] of the respondent’s outline of argument.  See also Annexure B to the prosecution’s written submissions in a document entitled Submissions on Sentence (Prosecution).

[9]  The offences the subject of this appeal included four offences under s 79A of the Fisheries Act 1994.

[10]  For further details of the appellant’s history of non-compliance against the Fisheries Act 1994, see [3.3] of the respondent’s outline of argument. 

[11]  Exhibit 1, T3, l 45 to T4, l 3.

[12]  See the prosecution’s document entitled “Submissions on Sentence (Prosecution)”, which is Annexure “C” to the appellant’s outline of argument.

[13]  See Annexure C.

[14]  See T1-14, ll 5-11.

[15]  See T2, ll 25-29.

[16]  Supra.

[17]  See also Bradbury v Henfry (1988) 94 FLR 456, per Nicholson J at 459.

[18]Darter v Diden [2006] SASC 152, per Doyle CJ at [29]-[30]; Jahandideh v R [2014] NSWCCA 178, per Rothman J at [16]-[17].

[19]Sgroi v R (1989) 40 A Crim R 197, per Brinsden J at 203; Hoskins v Ramsden [2008] WASC 28, per Templeman J at [92]; Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683, per Kirby P at 704; Bamsang Pty Ltd v The Commissioner of Taxation [2016] QDC 189, per Smith DCJ at [27].

[20]  See generally Veen v The Queen [No 2] (1988) 164 CLR 465 at 472 per Mason CJ, Brennan, Dawson and Toohey JJ.

[21]  At p 2.

[22]  See Annexure C of the prosecution’s “Submissions on Sentence”.

[23]  See Annexure B at T1-13, l 46.

[24]  See Annexure B at T1-14, l 1.

[25]  See [15] of these Reasons.

[26]  See Saba v Department of Transport and Main Roads (No. 2) [2013] QDC 128.

[27]  See Scanlon v Queensland Police Service [2011] QDC 236 at [4].

Close

Editorial Notes

  • Published Case Name:

    Brian Levinge v Department of Agriculture and Fisheries

  • Shortened Case Name:

    Levinge v Department of Agriculture and Fisheries

  • MNC:

    [2020] QDC 179

  • Court:

    QDC

  • Judge(s):

    Jarro DCJ

  • Date:

    07 Aug 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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