Gold Coast Boats Pty Ltd v Nixon

In this decision, the Court of Appeal held that the term “pecuniary penalty” in s 4B(3) of the Crimes Act 1914 (Cth) bears its ordinary meaning and refers to a penalty involving the payment of money.

Sofronoff P and Philippides JA and Daubney J

18 September 2018

The applicant was charged with three offences under the Marine Safety (Domestic Commercial Vessel) National Law 2012 (Cth). Each of the offences provides that the owner of a domestic commercial vessel commits an offence if they operate or allow the vessel to operate without certain certificates of compliance. [9]. Each offence prescribes that the “penalty” for the offence was “60 penalty units”. [9].

The argument on the appeal was limited to one of statutory interpretation, namely whether the prosecution was time-barred because of s 15B(1A) of the Crimes Act 1914 (Cth). That provision provides that a prosecution of a body corporate can only be commenced within one year after the commission of an offence unless the maximum penalty which could be imposed is more than 150 penalty units, in which case the prosecution can be commenced at any time. [12].

The argument turned upon the terms of s 4B of the Crimes Act, which provides:

4B Pecuniary penalties – natural persons and bodies corporate

…

(2)  Where a natural person is convicted of an offence against a law of the Commonwealth punishable by imprisonment only, the court may, if the contrary intention does not appear and the court thinks it appropriate in all the circumstances of the case, impose, instead of, or in addition to, a penalty of imprisonment, a pecuniary penalty not exceeding the number of penalty units calculated using [a defined formula].

(2A) Where a natural person is convicted of an offence against a law of the Commonwealth in respect of which a court may impose a penalty of imprisonment for life, the court may, if the contrary intention does not appear and the court thinks it appropriate in all the circumstances of the case, impose, instead of, or in addition to, a penalty of imprisonment, a pecuniary penalty not exceeding 2,000 penalty units.

(3) Where a body corporate is convicted of an offence against a law of the Commonwealth, the court may, if the contrary intention does not appear and the court thinks fit, impose a pecuniary penalty not exceeding an amount equal to 5 times the amount of the maximum pecuniary penalty that could be imposed by the court on a natural person convicted of the same offence.

The District Court had held that, by operation of s 4B(3) of the Crimes Act, the maximum penalty which could have been imposed on the applicant corporation was 300 penalty units. [13]. The applicant applied for leave to appeal that decision. The respondent did not oppose the grant of leave. [6].

The applicant firstly contended that the offence provisions, which use the term “penalty units”, do not impose a “pecuniary penalty” for the purposes of s 4B(3) but instead impose a fine. [24]. Daubney J, with the agreement of Sofronoff P and Philippides JA, held that the term “pecuniary penalty” was to be given its plain meaning, and described the fact that the penalty involved the payment of money. [18], [26].

The applicant’s second argument was that s 4B(3) was related to ss 4B(2) and 4B(2A) such that there would only be a “pecuniary penalty” if the offence provision provided for a period of imprisonment which was convertible to a fine under ss 4B(2) or 4B(2A) or the offence provision specifically stated that a “pecuniary penalty” applied. [15]. Daubney J rejected this argument, holding that ss 4B(2) and 4B(2)(A), one one hand, and s 4B(3), on the other, deal with discrete topics. [28]. The former provisions confer a discretionary power on a court to convert all or part of a term of imprisonment into a pecuniary penalty, whereas s 4B(3) effectively increases the maximum fine for a corporation to five times the maximum fine for a natural person. [29]–[30]. The maximum penalty for the corporate applicant was therefore 300 penalty units and the time bar in s 15B(1A) did not apply. [33].

The respondent having raised no opposition to the grant of leave but the applicant having not made out any ground why the time bar did not apply, the court granted leave to appeal but dismissed the appeal. [35].

M Maynard