Olivier v Walker[2021] QDC 150

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 17 December 2020 the appellant appeared before a Magistrate at Maroochydore. He pled guilty to a total of 20 offences contrary to either section 78 or section 82 of the Fisheries Act 1994 (Qld). All of the offences related to either the unlawful possession or sale of fish. After hearing submissions, the Magistrate made the following orders:

1. In relation to each offence a single fine of $5000 was imposed;^[1]
2. The appellant’s boat, motor and trailer (which I will for convenience collectively call ‘the boat’), valued at $15,000, were forfeited to the state of Queensland;^[2]
3. Notebooks, paper and fish were also forfeited;
4. The appellant was ordered to pay $207.20 as court costs and $500 as the prosecution’s professional costs.

2. [2]
   The appellant feels aggrieved as a result of the orders made by the Magistrate. He appeals against those orders, alleging two grounds: first that the sentence was excessive and, secondly, the Magistrate erred because the statutory requirements for the forfeiture the boat were not made out.^[3] For the following reasons I am of the view that the appeal must be dismissed. Before turning to the conduct of the appellant that gave rise to the prosecution it is convenient to set out the legal principles relevant to an appeal of this kind.

Relevant legal principles

3. [3]
   The appeal is brought pursuant to section 222 of the Justices Act 1886 (Qld). Section 222(2)(c) provides that if a person pleads guilty in the proceedings before the Magistrate, they may only appeal on the ground that the ‘fine, penalty, forfeiture or punishment was excessive’. Pursuant to section 223 of the Justices Act, the appeal is by way of rehearing on the evidence given in the proceedings before the Magistrate (and any further evidence that might be admitted with leave). I am required to conduct a real review of both the evidence before the Magistrate, and the Magistrate’s reasons for imposing the sentence, to determine whether the decision was affected by error. As this is an appeal against the exercise of the sentencing discretion, it must be determined in accordance with the well-known principles in House v The King (1936) 55 CLR 499.^[4] If I find that the sentence imposed was ‘unreasonable or plainly unjust’, or if the Magistrate erred in law, acted upon a wrong principle, took into account irrelevant matters, failed to take into account relevant matters, or mistook the facts, then I can exercise the sentencing discretion afresh.

Circumstances of the offences

4. [4]
   The maximum penalty for each of the offences of which the appellant was convicted was 1000 penalty units.^[5] The sentence hearing proceeded on the basis of a statement of facts that was not challenged by the appellant. The statement is summarised below.
5. [5]
   The appellant was not authorised to take or sell fish for trade or commerce. In early 2020, Fisheries Inspectors suspected the appellant was doing so unlawfully. On 23 April 2020 they searched his residence at Baringa. They found about 44 kg of Spanish mackerel, 30 kg of school mackerel and 3 kg of spotted mackerel. The appellant spoke to the inspectors and admitted that he had possessed and sold fish contrary to the provisions of the Fisheries Act. The evidence established the following 20 offences with which the appellant was charged.

Charge 1

6. [6]
   On 15 February 2020 the appellant arranged for another person to sell three Spanish mackerel to a person called Tran in Fig Tree Pocket. The mackerel weighed about 18 kg. The fish had been transported in a large esky the appellant loaded into the boat which was then towed to Fig Tree Pocket. The money from the sale was given to the appellant.

Charges 2 and 3

7. [7]
   Around 1 March 2020 the appellant arranged to sell mackerel and tuna to Tran. That day a total of 37 kg of fish was sold to Tran, the money being returned to the appellant. The act of making arrangements for the sale was charge 2 and the sale itself charge 3.

Charges 4, 5 and 6

8. [8]
   Between 2 and 6 March 2020 the appellant agreed to sell more fish to Tran. On 6 March 2020 a total of 42 kg of Spanish mackerel, mackerel tuna and cobia were delivered to Tran in Calamvale. Tran paid $417 which was paid to the appellant.

Charges 7, 8 and 9

9. [9]
   On 25 March 2020 the appellant sold Tran four Spanish mackerel weighing 50 kg and two mackerel tune weighing 9.5 kg. The sale occurred at Nudgee and the appellant was paid about $660. The limit for possession of Spanish mackerel by recreational fishers is three fish. The appellant’s possession of four Spanish mackerel constituted charge 9.

Charges 10, 11 and 12

10. [10]
    Between 2 and 5 April 2020 the appellant arranged to sell to Tran 42.8 kg of Spanish mackerel, 10 kg of mackerel tuna and a grass emperor (also known as a grassy sweetlip). The fish were sold to Tran at Tennyson on 5 April 2020 and the appellant was paid $552.

Charges 13 and 14

11. [11]
    Around 15 April 2020 the appellant sold 37 kg of Spanish mackerel to Tran at Calamvale. The appellant was paid $510. The fish consisted of four whole Spanish mackerel and fillets. The appellant’s possession of four whole Spanish mackerel exceeded the bag limit and constituted charge 14.

Charges 15, 16 and 17

12. [12]
    The appellant arranged to sell Spanish mackerel and mackerel tune to Tran. On 20 April 2020 the defendant drove to Calamvale where he sold four whole Spanish mackerel, weighing 35 kg, a further 30 kg of Spanish mackerel and two mackerel tuna, weighing 5 kg. The appellant was paid $703 for the fish. By this time Fisheries Inspectors were following the appellant and observed the transaction. During these events, the appellant possessed Spanish mackerel in excess of the bag limit.

Charges 18, 19 and 20

13. [13]
    Between 20 and 24 April 2020 the appellant exchanged messages with Tran. Arrangements were made for the sale of 50 kg of Spanish mackerel that had been caught by the appellant. The sale was to occur on 23 April 2020. Before the appellant left his home to deliver the fish, Fisheries Inspectors arrived. They found 14 school mackerel. The recreational bag limit for school mackerel is 10. They also found six Spanish mackerel, three more than the recreational bag limit of three.
14. [14]
    The facts went on to describe that the appellant had moved to Australia from South Africa in November 2018. He had previously worked on a commercial fishing boat. Around December 2019 he enquired about a commercial fishing licence but made no application. It was said that the boat had been ‘used … to commit the offences’ identified as charges 7 to 20 set out above. The total money paid to the appellant was about $3,500. The total wholesale value of the fish he sold and possessed was said to be about $8,100.
15. [15]
    The statement of facts noted the appellant made admissions when interviewed and concluded with the statement, ‘The defendant provided the Inspectors with information regarding the offences committed and details regarding other persons’ involvement in the offending.’

The hearing before the Magistrate

16. [16]
    The prosecution relied upon a written outline of submissions. They sought fines in the range of $10,000 to $15,000 in addition to the forfeiture of the boat, costs, and an ‘additional penalty’ of just more than $4,100 pursuant to section 83 of the Fisheries Act.^[6] The prosecution pointed to the purposes of the Fisheries Act, including the goal of managing fisheries in an ecologically sustainable manner. It was said the appellant’s offending contradicted this goal because it avoided the normal regulatory mechanisms, gave rise to a risk of harm to those who consumed the fish and undermined fair competition in the professional fishing industry. The prosecution referred to material regulating the catching and sale of Spanish mackerel in particular, this species being identified as a ‘priority species’ because of its high commercial value and susceptibility to ‘black-marketing’. The appellant’s intention to profit from his actions in circumstances where he had not paid for an appropriate licence was said to be an aggravating feature. The prosecution acknowledged that the appellant had no prior convictions, or any contraventions of fisheries regulations, and had co-operated with the authorities.
17. [17]
    The prosecution’s written submissions drew attention to section 48 of the Penalties and Sentences Act and the need for the Court to consider the appellant’s financial circumstances and the nature of the burden a fine would impose upon him. During the course of discussion with the appellant, the Magistrate established that the appellant was working at the time of sentence and had other, temporary work in the months prior to sentence.^[7] He also established that the appellant’s financial position at the time of the offending was not ‘desperately tight’.^[8] The prosecutor made a submission that if the boat was forfeited, its value should not be taken into account when deciding the quantum of the fines to be imposed. A case was mentioned, but it related to different legislation that was to the effect a court was not permitted to consider the hardship caused by the imposition of a pecuniary penalty. The prosecutor correctly conceded that the Fisheries Act contained no equivalent provision.^[9] It was apparent that the Magistrate was concerned that to make the orders sought by the prosecution would result in a sentence that was excessive.
18. [18]
    The appellant provided the court with an affidavit and other material in mitigation. This material became exhibit six. In his affidavit, the appellant explained that he moved to Australia from South Africa with his family in January 2019.^[10] He had difficulty finding work because of the conditions of his visa. In September 2019 the appellant was scheduled to commence a course to obtain a boat licence when he injured his hand. It was in March 2020 that the appellant purchased the boat with funds from the sale of property in South Africa. His intention was to have the boat surveyed and use it to fish commercially. The appellant found the costs of the survey prohibitive. By this stage he had become estranged from his wife and his financial circumstances were dire. He claimed to have sold the fish out of desperation and that he only used the funds to provide for his family. The appellant emphasised his cooperation with the authorities. He said he had been refused permission to stay in Australia and, subject to an appeals process, would not be able to remain in Australia permanently. At the hearing the prosecutor challenged the appellant’s claim he started to sell fish as a result of the lack of employment arising from shut-downs at the start of the COVID-19 pandemic. The appellant’s first six offences were in February and early March 2020, prior to any significant restrictions. The issue was not really resolved at the hearing, but is not of much significance.
19. [19]
    The appellant’s other material indicated that he had been counselled in relation to stress and anxiety, had expressed remorse and was well regarded by a friend.

The Magistrate’s decision

20. [20]
    The Magistrate described the appellant’s offending as a commercial enterprise. He emphasised that the appellant was, in effect, running a business, selling fish in amounts that were larger than might be used in a domestic household. The Magistrate considered that the appellant’s financial difficulties were no excuse for deciding to sell fish unlawfully. In relation to the application to forfeit the boat, the Magistrate contrasted the appellant’s conduct from that of a recreational boater who used a boat on one occasion to sell a couple of fish. The Magistrate rejected the prosecutor’s submission that he should ignore any impact of forfeiture and considered it was appropriate to take a holistic approach to the sentence. After considering some other cases said by the prosecutor to be comparable, the Magistrate indicated that he thought an overall penalty of a value of $20,000 was appropriate. As the boat was valued at $15,000 he ordered its forfeiture and imposed a single fine of $5,000.

The contentions of the parties on the appeal

21. [21]
    The appellant’s notice of appeal alleged only that the sentence was excessive. Just before the hearing of the appeal, and without opposition by the respondent, the appellant added an additional ground of appeal in the following terms:

[the] forfeiture order for my boat should not have been made because it was not used to commit the offences of selling and possessing fish.

Was the sentence excessive?

22. [22]
    The appellant’s first outline of submissions addressed this ground. In support of his contention that the sentence was excessive the appellant relied upon media and other reports of sentences handed down in other cases. At first the respondent challenged this as material that should not be received without leave.^[11] Ultimately, the respondent accepted that regard may be had to such reports for the purpose of comparison, so long as it was acknowledged the reports may not be wholly reliable. On this basis I received and considered the material attached to appellant’s outline and further reports he tendered at the sentence.
23. [23]
    These reports, and the cases cited by the prosecutor, demonstrate a wide range of approaches to the illegal possession and sale of fish. No two cases are alike and a close comparison of the present circumstances to other decided cases is unlikely to be helpful in deciding if a sentence if excessive.^[12] Rather, the better approach is to consider the nature of the appellant’s offending, the applicable maximum penalties and orthodox sentencing principles to determine this question.
24. [24]
    The appellant had deliberately possessed and sold fish without appropriate authorisation. He did so repeatedly and dealt in significant, commercial weights of fish. For his efforts the appellant was rewarded with about $3,5000. The fish he possessed and sold was valued at more than $8,000. It seems likely that it was only the intervention of fisheries officers that brought the appellant’s enterprise to an end. While the appellant made admissions and co-operated in the administration of justice, there was little to excuse his conduct. His financial circumstances may have been straitened, but they could not have been as dire as the appellant made out. He had sufficient capital to pay $15,000 for the boat in March 2020 and was at the time of offences sending his children to private school.
25. [25]
    Each offence of which the appellant was convicted was punishable by a fine of up to 1000 penalty units. That meant that, in theory, a fine exceeding $133,000 could have been imposed for each offence. As well, it was open to the Magistrate to consider imposing an additional penalty pursuant to section 83 of the Fisheries Act. This provision permitted a further penalty not more than five times the wholesale value of the fish when they were taken. Of course, a penalty approaching the theoretical maximum could not conceivably have been imposed. But the maximum available penalty says something of the seriousness with which the parliament regards offending of this kind and is a measure against which the offences may be assessed. Other features suggesting a salutary penalty was appropriate were those relied upon by the prosecutor before the Magistrate. A glance at the Fisheries Act is enough to prove what might be intuitively known to be true: commercial fishing is a highly regulated industry. That is so for a number of reasons, principle among which is the need to protect sustainable fisheries. As was said before the Magistrate, the appellant’s unregulated activity put him at a position of advantage compared to those who paid fees to secure the appropriate licenses. If conduct of this kind were not deterred, and became widespread, it would risk the sustainability of our fisheries. This is especially so in the case of Spanish mackerel which is a species reserved for special attention in the regulations. Finally, in the absence of proper regulation, there was also some risk to the health of those who ultimately consumed the fish, possibly unaware of the circumstances in which they were caught, kept and sold.
26. [26]
    In these circumstances, pecuniary penalties of about $20,000 (once the court costs are taken into account) can hardly be regarded as excessive. This ground of appeal must fail.

Were there proper grounds for forfeiting the boat?

27. [27]
    To consider this ground it is necessary first to set out section 177 of the Fisheries Act:

177 Forfeiture on conviction

1. (1)
   On the conviction of a person for an offence against this Act, the court may order the forfeiture to the State of any of the following—

1. (a)
   anything (including a boat or vehicle) used to commit the offence;

2. (b)
   fisheries resources the subject of the offence or, if the fisheries resources have been sold by the chief executive, the net proceeds of sale;

3. (c)
   anything else the subject of the offence.

2. (2)
   The court may make an order under subsection (1) in relation to a thing or fisheries resources—

1. (a)
   whether or not the thing or fisheries resources have been seized under this Act; and

2. (b)
   if the thing or fisheries resources have been seized—whether or not the thing or fisheries resources have been returned to its or their owner.

3. (3)
   The court may make any order to enforce the forfeiture that it considers appropriate.

4. (4)
   This section does not limit the court’s powers under the Penalties and Sentences Act 1992 or any other law.

28. [28]
    A necessary circumstance to engage the operation of section 177 is that a thing, in this case the boat, was ‘used to commit the offence’. It was not suggested that the Magistrate misconstrued the provision – the appellant’s complaint is that the evidence was insufficient to trigger its operation. In these circumstances it is not necessary to give detailed consideration to the meaning of the provision. It is sufficient to observe that whether something was ‘used for the commission of the offence’ poses an objective questions to be answered having regard to all of the facts and circumstances surrounding the offence and the nature and character of the offending. A thing will have been used to commit an offence where its ‘use objectively caused, assisted, was conducive to or otherwise facilitated the commission of the offence’. I would not regard this approach as controversial, but if support for it is needed it may, in my opinion, be found in Schoombee, Re; Ex parte Attorney-General (WA) (2011) 58 MVR 315; [2011] WASCA 129. That case was concerned with different circumstances and legislation. A person had been struck by a car in the course of the commission of an offence of dangerous driving causing grievous bodily harm. The person received compensation pursuant to a statutory third party scheme but later made a claim pursuant to criminal compensation legislation. This legislation prohibited an award where the person’s injury was:

…caused by, or by the driving or other use of, a motor vehicle unless … the motor vehicle was used for the purpose of committing the offence.

29. [29]
    It can be immediately noticed that the legislation under consideration in Schoombee contained the additional words ‘for the purpose of’. The real question in that case was whether the issue raised by the legislation was to be answered objectively or whether it required a considered of the subjective purpose or intention of the person using the car. A majority of the Court of Appeal of Western Australia (Buss and Murphy JJA, Hall J dissenting) determined the issue was to be determined objectively and that the use of the phrase ‘for the purpose of’ did not introduce a subjective element.^[13] Buss JA stated:

The driving or other use will be use “for the purpose of” committing the offence if the driving or other use objectively caused, assisted, was conducive to or otherwise facilitated the commission of the offence. It is not essential that the driving or other use be an element of the relevant offence for the use to be characterised as “for the purpose of” committing the offence.

30. [30]
    Buss JA noted a distinction between the legislation under consideration and legislation that might only refer to a circumstance that a ‘motor vehicle was used for committing the offence’.^[14] His Honour did not develop this potential distinction, presumably because it was unnecessary for the decision. The additional words – for the purpose of – found in the legislation considered by Buss JA might be through to expand the scope of the use of a thing and its connection with an offence. But whatever difference may exist, the words ‘use in the commission of the offence’ must invoke an objective assessment of the circumstances. If the thing used ‘objectively caused, assisted, was conducive to or otherwise facilitated the commission of the offence’ is will have been used to commit the offence.
31. [31]
    While I keep this approach in mind when considering the second ground of appeal, it is not critical to the disposition of the ground. That is because at the sentence hearing it was expressly admitted by the appellant that he used the boat to commit at least some of the offences. The sentence hearing proceeded in the usual manner. A statement of facts was tendered and the prosecution provided written submissions. Each contained allegation about things it was alleged the appellant had said and done. This included, in the written submissions, the statement:

The Defendant admitted in a recorded interview during the execution of the warrant at his residence that he used the boat and motor in committing the offences the subject of charges 13 to 16 in the Brisbane district.

32. [32]
    The statement of facts included the following:

Items used to commit the offences

25.  The defendant used the following items to commit the offences:

1. (a)
   White Kozi Cat 5.2m Half Cabin ‘Fishful Thinking’ Fibreglass boat bearing registration number UF263Q (Estimated value $15,000) and boat trailer bearing registration number Z96QSS (estimated value $1,500). These items were used to commit the offences in charges 7 to 16 in the Brisbane district, and each of the charges in the Maroochydore district.

33. [33]
    Neither assertion was challenged by the appellant before the Magistrate. No further detail of how the boat was used was provided. But seen in the context of the balance of the written submissions and statement of facts, it had to have been inferred that the appellant had used the boat when catching at least some of the fish the subject of the charges.
34. [34]
    Section 15 of the Penalties and Sentences Act relevantly provides:

15 INFORMATION OR SUBMISSIONS FOR SENTENCE

1. (1)
   In imposing a sentence on an offender, a court may receive any information, including a report mentioned in the Corrective Services Act 2006, section 344, or a sentencing submission made by a party to the proceedings, that it considers appropriate to enable it to impose the proper sentence.

35. [35]
    In turn, section 132C of the Evidence Act 1977 (Qld) provides:

132C  FACT FINDING ON SENTENCING

1. (1)
   This section applies to any sentencing procedure in a criminal proceeding.

2. (2)
   The sentencing judge or magistrate may act on an allegation of fact that is admitted or not challenged.

3. (3)
   If an allegation of fact is not admitted or is challenged, the sentencing judge or magistrate may act on the allegation if the judge or magistrate is satisfied on the balance of probabilities that the allegation is true.

4. (4)
   For subsection (3), the degree of satisfaction required varies according to the consequences, adverse to the person being sentenced, of finding the allegation to be true.

5. (5)
   In this section—

"allegation of fact" includes the following—

1. (a)
   information under the Penalties and Sentences Act 1992 , section 15 or evidence given at a hearing in relation to an order under part 3A of that Act;

2. (b)
   information under the Youth Justice Act 1992 , section 150 (4A) or in a pre-sentence report under section 151 of that Act;

3. (c)
   information given to the court under the Penalties and Sentences Act 1992 , section 179K ;

4. (d)
   other information or evidence.

36. [36]
    Given the appellant did not challenge the assertions that the boat had been used in the commission of some of the offences, it was open to the Magistrate to accept and act upon them.^[15] This was sufficient to permit the Magistrate to conclude that the appellant had used the boat to assist in or facilitate the commission of (at least some of) the offences. It is not said that the Magistrate otherwise erred in deciding to forfeit the boat, or that the result is one that is unreasonable or plainly unjust (beyond the complaint dealt with above that the sentence as a whole was excessive). This ground of appeal must also fail.

Conclusion

37. [37]
    The appellant has not made out either ground of appeal. It follows that the appeal must be dismissed. The respondent has not asked for costs and there will be no order as to the costs of the appeal.