New South Wales Supreme Court CITATION : Director-General, Department of Primary Industries v Schembri [2009] NSWSC 1006 HEARING DATE(S) : 18 March 2009, 15 April 2009 JUDGMENT DATE : 29 September 2009 JURISDICTION : Common Law JUDGMENT OF : Rothman J For the contravention of s 16(1) of the Fisheries Management Act 1994, sentenced to a fine of $2,500. For the offence of contravention of s 18(2) of the Fisheries Management Act 1994, sentenced to a fine of $2,500. AND DECISION : (i) Pursuant to s 122 of the Fines Act 1996, one-half of the amount of the aforesaid fines ($5,000), being an amount of $2,500, be paid to the Director-General, Department of Primary Industries. (ii) To the extent necessary, the boat (Registration Number DR466N), including the sounder, and trailer (Registration Number S87267), seized by officers of the Department of Primary Industries from Mr Schembri, being property of Mr Schembri, be returned to Mr Schembri within 28 days from the date of this judgment. (iii) The Defendant shall pay the Plaintiff's costs of and incidental to these proceedings, as agreed or assessed. CATCHWORDS : CRIMINAL LAW – sentencing – summary jurisdiction – Fisheries Management Act 1994 – no issue of principle – fines imposed - CRIMINAL LAW – confiscation of assets – no issue of principle – no order made – hardship, first offence, ordinary usage of goods Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED : Fines Act 1996 Fisheries Management Act 1994 Fisheries Management (General) Regulation 2002 CATEGORY : Sentence CASES CITED : R v Bolger (1989) 16 NSWLR 115 Re Coldham; Ex parte Brideson [1989] HCA 2; (1989) 166 CLR 338 PARTIES : Director-General, Department of Primary Industries (Plaintiff) Peter Schembri (Defendant) FILE NUMBER(S) : SC 10659/2009 COUNSEL : M Higgins (Plaintiff) P Folino-Gallo (Defendant) SOLICITORS : Crown Solicitor's Office (Plaintiff) RMB Lawyers (Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ROTHMAN J 29 SEPTEMBER 2009 10659/2009 Director-General, Department of Primary Industries v Peter Schembri JUDGMENT 1 HIS HONOUR: Mr Peter Schembri has pleaded guilty to two offences under the Fisheries Management Act 1994 ("the Act"), for which the Court now proceeds to sentence him. 2 By summons filed 3 February 2009, Mr Schembri was charged by the Director-General, Department of Primary Industries, with breaches of the Act. In particular Mr Schembri was charged with a contravention of s 16(1) of the Act and a contravention of s 18(2) of the Act. The breaches concerned commercial fishing operations in which fish that were too small were caught and, quite separately, there were too many fish caught. 3 By s 16(1) of the Act, a person is prohibited from having fish of a measurement or weight prescribed in the regulations, in the person's possession and, having possession of a prohibited size fish is an offence for which the maximum penalty is 500 penalty units in the case of a corporation and in the case of a natural person 100 penalty units or imprisonment for 3 months or both. 4 By s 18(2) of the Act, a person is prohibited from having in that person's possession more than the possession limit of that fish. The possession limit is set by regulation and contravention of it is an offence for which the maximum penalty, in the case of a corporation, is 500 penalty units, or in the case of a natural person 100 penalty units or imprisonment for 3 months or both. Facts 5 It is unnecessary to set out the facts, in full, nor is it relevant to the sentence how it was that Mr Schembri was apprehended. Some brief matters need to be stated. The offence in question occurred at Shellharbour. Officers of the Department of Primary Industries ("the Department") received information as a result of which they attended at the premises of Mr Schembri and ultimately at the boat ramp and nearby car parks at Shellharbour. A Department sign is located near the ramp, which sign outlines the bag and size limits for all fish in New South Wales. 6 At the car park near or adjacent to the boat ramp, officers of the Department sighted a vehicle and trailer owned by Mr Schembri; they searched the nearby waterways but could not locate him. At approximately 1.00pm the officers departed from that location in order to check on some seemingly unrelated information received in relation to Bushrangers Bay. They were gone from the boat ramp area for approximately 15 minutes. On their return, the officers noted that the vehicle and trailer, owned by Mr Schembri, were no longer parked in the adjacent car park, but also noticed a water-trail mark, seemingly fresh, on the road commencing at the boat ramp and continuing along the road. The officers followed that water mark and noticed the vehicle and trailer owned by Mr Schembri. On this occasion there was a boat on the trailer, and the vehicle was travelling south along Shellharbour Road. 7 The officers pulled over the vehicle, utilising proper procedure, and, once they approached the vehicle, verbally identified themselves to the occupants and displayed their warrants. Mr Schembri, together with his companions Mr Camilleri and Mr Hay, had already alighted the vehicle. The defendant admitted that he had been fishing that day. He indicated to the officers that the catch was in "an orange icebox on board the boat". An officer requested and obtained permission to climb on board the boat to inspect. Inside the orange icebox the officers found 28 sand flathead, all of legal length, and two squid. The officers unscrewed the floor of the vessel and found the well to be empty. Attached to the inside of the boat was a current Department Fisheries advisory sticker outlining bag and size limits for all fish in New South Wales. 8 The officers then inspected the front of the vessel and found lifejackets, tackle boxes and other fishing and safety gear at the bow of the boat below the dashboard. On moving this gear, officers found a green mat covering a piece of wood which was cut to match the shape of the boat's bow. On inspection, officers found a large quantity of yellowtail kingfish. The fish were measured and counted. There were 46 yellowtail kingfish, ranging in size from 47.3cm to 60.0cm. The legal minimum prescribed length for yellowtail kingfish in New South Wales is 65.0cm. 9 Officer Corfield recorded Mr Schembri's details from his driver's licence and interviewed him about the matter. Mr Schembri conceded that he had caught some of the 46 yellowtail kingfish, that he had used handlines with bait, that he was the owner of the bait and that he had placed the kingfish in the bow as he knew that "they were below the legal minimum length of 65cm". 10 Interviews were also conducted with Mr Camilleri and Mr Hay. None of the occupants of the motor vehicle, each of whom, on their admissions, had been fishing and had caught some of the yellowtail kingfish, had licences to possess that many fish or that sized fish. Mr Camilleri and Mr Hay all possessed current receipts for the recreational fishing fee for the relevant period. 11 Officers of the Department seized the vessel, fishing gear and 46 prohibited size yellowtail kingfish. The vessel and trailer were then, on a subsequent date, washed and cleaned. The vessel, trailer, motor and sounder were valued at $10,800, the valuation being tendered before the Court. A second valuation was obtained for the items which valued them at $11,000. 12 On 15 January 2009, a notice of seizure was sent to Mr Schembri and others. 13 The possession limit and daily limit for yellowtail kingfish in New South Wales is five per person and, as already noted, the prescribed minimum size limit for yellowtail kingfish in New South Wales is 65cm. Consideration 14 Offences under the Act, in particular these offences, go to the protection of waterways and fish resources in the State. The offences with which Mr Schembri is charged are not at the lowest end of the scale. Nor are they at the highest end. 15 Some of the sizes of the fish are, to say the least, problematic and go to the nature of the offence under s 16. But the numbers of the fish are still relatively small. Effectively, between the three persons, there were three times the allowable number of fish that were caught. It seems, on the facts before me, that the offence is just below mid range in seriousness. Mr Schembri pleaded guilty at the earliest stage and is entitled to an appropriate discount. In accordance with the authorities, the range of a discount for a plea of guilty is between 10% and 25%. This plea was given at the earliest practicable time and I fix 25% as the appropriate discount for the early plea of guilty. 16 Mr Schembri was of some assistance to authorities by way of his statement and the admissions that he made to the Department Officers, both as to the ownership of the vehicles in question and his participation in the fishing exercise. That assistance is of some value, which I allow in fixing the sentence, but I do not separately identify or specify a percentage discount for that factor. A major issue between the parties on the sentence hearings was whether or not Mr Schembri was involved in commercial fishing activities. The Act deems a person to be engaged in commercial fishing activity when, amongst other things, that person is in possession of fish in excess of the quantity permitted. 17 Section 241 of the Act defines "commercial fishing activities" to mean fishing activities for commercial purposes and presumes a person to be engaged in commercial fishing activities (unless the person proves the contrary), if the person is in possession of a quantity of fish that exceeds the quantity of fish in excess of the quantity allowed: see s 241(2) of the Act. While Mr Schembri is required to prove, given the facts as I have found them, that he is not engaged in commercial fishing activities, that proof is required only on the balance of probabilities. On the other hand, the Department must prove those elements it is required to prove, beyond reasonable doubt. But the plea of guilty establishes to the requisite standard each of the elements of the charge, including, in this instance, that Mr Schembri was in possession of fish in excess of the permissible quantity. 18 The subjective circumstances of Mr Schembri can be briefly stated. He is a 57-year-old man, who has no previous conviction of any nature, including convictions in relation to these kind of offences. He is therefore entitled to the usual leniency exercised in relation to a first offender. 19 The question of whether Mr Schembri was engaged in the fishing activities in a commercial manner requires, for present purposes, more analysis than simply relying upon the deeming provision in the Act. While the deeming provision engages the criminal offences and is sufficient to render Mr Schembri susceptible to penalty, as if he were truly engaged in commercial activities, it is necessary to analyse whether Mr Schembri was engaged in commercial activities, within the ordinary meaning of that term, because it is a factor that informs the exercise of the sentencing discretion. 20 The Court is also required to take into account the provisions of s 21A of the Crimes (Sentencing Procedure) Act 1999. If the motive for the offence were greed or commercial gain, then that is a factor in determining the culpability for the offence. Of course, the motive could be commercial gain without the fishing activity being commercial, in the sense that the Department suggests. For example, a person could offend the Act during the course of a commercial activity, being taking paying customers on a boating expedition to fish, rather than the sale of the fish that are then caught. 21 I reiterate that the Court is now dealing, not with the definition of commercial fishing for the purposes of the Act, but the circumstances of the offence for the purposes of determining relative culpability. Mr Schembri attests to the fact that he has, on prior occasions, breached the Act. He has not, previously, as I have already stated, been convicted of any such offence. Mr Schembri says that the fish that he caught on this occasion were for the purpose of personal use, including as a gift to his grandchildren, the oldest of which is 13. Those grandchildren live in Cowra. 22 There were 46 fish caught. Even giving Mr Schembri the benefit of accepting his evidence that the catch was to be divided three ways, he would have received, from the catch, 15 fish. Mr Schembri says that he was to drive from Shellharbour to Cowra, that afternoon, for the purpose of providing fish for his grandchildren to eat. I do not accept that explanation. 23 Nor do I accept the explanation that the false cover in the bow of the boat was for the purpose of hiding or storing equipment. Plainly, its purpose was to store fish, which it was illegal for Mr Schembri to possess. His conduct, on the day, including lying to officers of the Department, and seeking to hide the fish in the bow allows the drawing of the inference that such conduct was one at least of the purposes for which the cover was made. It was made, clearly, some time prior to the offence in question. 24 I consider that the fish were caught for a purpose other than the personal consumption of Mr Schembri and his family. The number of the fish and the steps taken to deceive the Department allow that inference to be drawn. Further, I consider that the offence was the result of a planned activity, in which Mr Schembri set out to catch kingfish and sought to facilitate the offence by the preplanning and building of a false cover for a well in which the fish could be stored. I also do not consider that Mr Schembri has displayed genuine contrition. 25 I turn then to the question of the sentence to be imposed. The legislature has fixed a maximum penalty which calculates at $11,000 or a prison sentence or both for each offence. The Department concedes, and quite properly so, that a custodial sentence is not appropriate in the circumstances of this case. 26 However, the legislature has fixed these offences for the purpose of ensuring the welfare of the State and in particular the continued population of the rivers by fish of various kinds. One of the difficulties in an offence of this kind is that breach of it is difficult to detect. No doubt most people who have ordinary conceptions of honesty and proper conduct and civic responsibility will comply with the Act. But those that do not seem to care very little about the prospect that, if everybody were to act as they wish to do, there would be no fishing left for the population to enjoy. 27 Such persons rely upon the difficulty in detecting the offence and it is necessary to fix a penalty that properly takes account of the principles of sentencing: deterrence, both general and specific; punishment; protection of society; retribution and reform. Each of these factors, particularly the protection of society, and deterrence and punishment must have regard to the gravity of the circumstances, viewed objectively within the range of conduct that may fall within the offence charged. Often the goals of sentencing seeks to resolve conflicting goals. On the one hand, there is punishment, deterrence and protection, and on the other hand, rehabilitation or reform. Much depends on the personal circumstances of the offender and the capacity for and likelihood of rehabilitation and the need for personal and general deterrence. 28 In this case, I must also take into account the principles relating to parity. A co-offender of Mr Schembri has been sentenced in the Local Court to a total fine of $1,500 (i.e. $750 for each offence). Further, the Department submits that I should make, in accordance with the Act, an order confiscating the property involved in the crime, namely the boat, motor, sounder and trailer. If I were minded to make such an order, then confiscation ought properly be taken into account as an additional "extra-curial", or more accurately, "extra-criminal" punishment, which affects the sentence to be imposed under the charged offences. I consider, absent consideration of the effect of the confiscation order, that $750 fine for each offence is insufficient for the culpability involved in Mr Schembri's conduct, and manifestly so. 29 In terms of relative culpability, Mr Schembri's conduct is more culpable than this co-offenders. Not only did Mr Schembri provide the wherewithal to breach the Act (namely, the boat and equipment), but Mr Schembri was the one involved in the preplanning to which reference has already been made. Further, Mr Schembri understood that his conduct was illegal in the two major respects with which he has now been charged. Most importantly, it seems Mr Schembri was the principal offender; the ringleader, for want of a better term. Confiscation Order 30 The Court has power and jurisdiction to order forfeiture of a boat and/or vehicle, in certain circumstances: see s 269(1) of the Act. A "trailer" is defined as a vehicle by s 4(1) of the Act: see s 4(1) of the Act, definition of "vehicle". 31 "Boat" is defined in s 4(1) of the Act as meaning "any kind of vessel, however navigated". The basis of the Department's submission that s 4(1) defines "boat" to include "trailer", is not clear. It would seem that "vessel", where used in the definition, refers to a conveyance that is designed to travel on or under water, whereas vehicle refers to a conveyance on the road or in the air (i.e. not on or under water). Section 269(1) enables confiscation of a boat or motor vehicle. A "trailer" is not within the ordinary meaning of the term "motor vehicle", which is undefined in the statute. However, by s 240(1) of the Act (a provision to which the Court was not taken by the parties), for the purpose of the confiscation provisions (and Part 9 generally), "boat" includes a trailer used to transport the boat. 32 The statute enables the Court to order forfeiture of a boat or motor vehicle that has been seized under Part 9 of the Act. Relevantly, that refers to a seizure, by a fisheries officer, of a boat or motor vehicle. That seizure may occur if the fisheries officer has "reason to believe [that the boat or motor vehicle] has been used … in commercial fishing activities for the purpose of committing a forfeiture offence." (See s 265 of the Act.) Each of these offences is a "forfeiture offence". 33 For the purpose of s 265 of the Act, Mr Schembri was engaged in commercial fishing activities: s 241(1) of the Act. Any activity involving the possession of fish in number in excess of that permitted is presumed to be a commercial fishing activity. A "fishing activity" is defined by s 4(1) of the Act as meaning: "the activity of taking fish, including: (a) searching for fish, or (b) any activity that can reasonably be expected to result in the locating, aggregating or taking of fish, or (c) carrying fish by boat from the place where they are taken to the place where they are to be landed." 34 Further, s 240(2) of the Act defines "connected with a fisheries offence" as: "(a) a thing with respect to which the offence has been committed, or (b) a thing that will afford evidence of the commission of the offence, or (c) a thing that was used, or is intended to be used, for the purpose of committing the offence." 35 The definition of "fishing activity", particularly subparagraph (c), indicates that transporting a boat to or from the water is not a fishing activity. A commercial fishing activity is a subset, or particular kind, of fishing activity. Thus, it would seem that transporting a boat to and from water is not a commercial fishing activity, because "fishing activities" cease at the point that the fish are landed. 36 The definition of "boat" in s 240 of the Act results in s 264 not applying to trailers. It would seem that transportation of the boat to and from the water would not be "connected with a fisheries offence", but it is unnecessary for me to determine that issue. Section 265 allows a boat to be seized (see infra). At least arguably, a trailer could never be used by a person engaged in commercial fishing activities for the purposes of committing a forfeiture offence, unless a prepatory act is included in that term. However, if would be odd if a trailer were not able to be seized, yet a motor vehicle, a boat and all other equipment could be. 37 Whatever be the intention of the legislature in relation to trailers, the Court certainly has the capacity to order forfeiture of the boat, and the motor and sounder. In my view, the motor must be included in the meaning of the term "boat", but if it were not, it could be seized under s 264 of the Act. The sounder, also, could be subject to seizure under s 264 and forfeiture under s 269 of the Act. Moreover, s 264 allows seizure in circumstances other than commercial fishing activities. There is no issue in these proceedings that the motor and sounder were used in the commission of the offences. The sounder was fitted to the boat [Affidavit of Peter Schembri of 18 March 2009, at paragraph 5], having been purchased for $5,000, and is now worth $500 [Annexure C to the Affidavit of Emma Corfield of 3 February 2009]. 38 I turn then to the exercise of the Court's discretion. I take into account that this is the first offence but also that other uncharged offences have previously been committed. I adopt the discussion in the Court of Criminal Appeal and, particularly, with great respect, of Allen J with whom Hope JA and Studdert J agreed in R v Bolger (1989) 16 NSWLR 115 at 126 et seq. I take into account that the boat is ordinarily used for lawful activity, even if, occasionally, Mr Schembri uses it to transgress the law. 39 I also take account of the circumstances of this offence. Even if this were a commercial activity, it is not a major undertaking by a commercial enterprise. I am not entitled to take into account any factor that is not derived from the subject-matter, scope and purpose of the Act: Re Coldham; Ex parte Brideson [1989] HCA 2; (1989) 166 CLR 338 at 347. 40 The seriousness of the offence is a factor to which I have regard, as is the severity of the sentence I intend to impose insofar as it bears upon the hardship that Mr Schembri will suffer as a result. 41 Mr Schembri is 57 years of age. He fishes as a recreational pursuit for which he uses the boat. He is employed on a part-time basis as a truck driver. He is not otherwise known to law enforcement agencies. 42 In all the circumstances, I do not consider, for this offence, given its circumstances and that it is the first offence for which Mr Schembri is to be convicted, that Mr Schembri should have his boat or trailer forfeited. The sounder may be equipment that goes beyond mere "recreational fishing" but, as it is fitted to the boat, it should be treated the same way as the boat and, if it were separately subject to seizure under s 265, I would order its return and I will specifically include it in the reference to "boat" in the orders that will issue in this judgment. Conclusion 43 I have already stated the matters of aggravation and that which I consider most relevant in the sentencing exercise. I do not consider that each offence is part of the one criminal act. Mr Schembri could have caught too many fish of a permissible size. Alternatively, he could have caught the prescribed number of undersized fish. While the act of fishing was the one course of conduct, for which some allowance in totality must be made, there was a known commission of two quite separate offences. 44 Further, I do not consider the co-offender's fine of $1,500 to be confining. First, it was imposed in the Local Court. Second, Mr Schembri's conduct was much more culpable. 45 Having taken account of all the factors, except the plea, I would fix a starting point for each offence at $4,000. I allow a 25% discount and take account of totality by fixing a fine of $2,500 for each offence. 46 I make clear, if not already obvious, that I consider such a fine necessary in part for punishment, but otherwise to take account of both specific and general deterrence. I also consider that a bond would be inappropriate. 47 Mr Schembri, I convict you of the following offences: That, on 6 January 2009, at Shellharbour in the State of New South Wales, you did have in your possession prohibited sized fish in contravention of s 16(1) of the Fisheries Management Act 1994. Further, that on 6 January 2009 at Shellharbour in the Sate of New South Wales you did have in your possession more than the possession limit of fish of a species defined in Division 3 of Part 2 of the Fisheries Management (General) Regulation 2002, namely, more than five yellowtail kingfish, in contravention of s 18(2) of the Fisheries Management Act 1994. In relation to each of the aforesaid offences, you are fined an amount of $2,500, being a total of $5,000 for both offences. AND THE COURT MAKES THE FOLLOWING FURTHER ORDERS: (i) Pursuant to s 122 of the Fines Act 1996, one-half of the amount of the aforesaid fines ($5,000), being an amount of $2,500, be paid to the Director-General, Department of Primary Industries. (ii) To the extent necessary, the boat (Registration Number DR466N), including the sounder, and trailer (Registration Number S87267), seized by officers of the Department of Primary Industries from Mr Schembri, being property of Mr Schembri, be returned to Mr Schembri within 28 days from the date of this judgment. (iii) The Defendant shall pay the Plaintiff's costs of and incidental to these proceedings, as agreed or assessed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.