"8 There is manifest disparity between the sentence imposed on the Applicant [Brinkman] and that of two months' suspended imprisonment which was imposed by M A Hill Esq Magistrate on David Wakefield who was the skipper of the Saxon Onward."

There were eight other grounds relied upon by the respondent Brinkman in his notice to review, but the learned primary judge found it unnecessary to consider them once he saw fit to uphold ground 8.

Counsel for the respondent argued that the appeal to this Court should be regarded as a Crown appeal attracting the "double jeopardy" considerations adverted to by the High Court in Everett v R [1994] HCA 49; (1994) 181 CLR 295; Griffiths v R [1977] HCA 44; (1977) 137 CLR 293; and Malvaso v R [1989] HCA 58; (1989) 168 CLR 227. I find myself unable to agree. The respondent was sentenced in the Court of Petty Sessions to three months' actual imprisonment. He succeeded on an appeal against that sentence and received a more lenient one in the sense that its execution was, in effect, suspended on conditions. This appeal from his Honour's decision does not put in jeopardy for the second time freedom beyond the sentence imposed by the magistrate in exercise of his undoubted jurisdiction to impose sentence. The appellant is not seeking an increase in that sentence. He contends that his Honour was in error in quashing the original sentence and that the sentence he substituted should be set aside as being beyond his jurisdiction. If that contention is correct then, (subject to the resolution of the remaining grounds of appeal raised by the notice to review) the initial sentence is simply restored. For the reasons advanced by Wright J, I am of the view that the learned primary judge was in error in quashing the original sentence on the basis he did and that in consequence he had no jurisdiction to impose a fresh sentence. I would accordingly uphold the appeal on grounds 1 and 2 of the notice of appeal to this Court and quash the orders of the learned primary judge made on the respondent Brinkman's notice to review sentence (LCA 76/1997). However, as his Honour did not deal with the respondent's remaining eight grounds of appeal, success in respect of any one of which would call for a review of the learned magistrate's sentence, and as they were not argued before us, a decision must now be made whether those grounds should be remitted to the learned primary judge for determination or should be determined by this Court. As the learned primary judge heard all the arguments on those grounds on the hearing of the notice to review, it is more convenient and likely to more rapidly achieve finality that the former course should be adopted.

I agree in substance with the reasons advanced by Slicer J for dismissing the first appeal, viz, that against conviction by both Norman Brinkman and Fishpak Pty Ltd. In my opinion, Underwood J was correct in upholding those convictions.

As to the second appeal, that in respect of sentence, by the prosecutor Martin Stephen Dix against Norman Brinkman, I make the following observations.

The prosecutor has appealed against the orders made by Underwood J on 14 November 1997 whereby his Honour imposed lesser sentences upon Norman Brinkman than those which had originally been imposed by Magistrate P J A Wright on 12 August 1997. On that date, the learned magistrate imposed penalties in respect of those complaints which he had found proved against Fishpak Pty Ltd (Complaints 37560/95, count 1, and 37559/95, count 1) and against Norman Brinkman (Complaints 37558/95, count 1 and 37566/95, count 1). In respect of the complaints against Fishpak Pty Ltd, fines of $25,000 and $15,000 respectively, were imposed. In respect of Brinkman, a sentence of three months' imprisonment was imposed upon each complaint and it was ordered that such sentences be served concurrently.

Both Brinkman and Fishpak Pty Ltd were named as appellants in the motion to review sentence which was then instituted on 19 August 1997, but it is plain from the way in which the matter proceeded before Underwood J and the way in which he dealt with it, that, notwithstanding certain ambiguities in the formal document by which the appeal was commenced, the motion to review was treated by all parties as an appeal against sentence by Brinkman alone.

As Underwood J mentioned at 11 of his reasons for judgment of 14 November 1997, there were originally seven grounds upon which Brinkman relied in his quest to review the learned magistrate's decision. Those grounds were as follows:

"1 The magistrate erred in fact in that there was no evidence upon which the magistrate could have been satisfied beyond reasonable doubt that the applicant would have made a financial gain from the offences.

2 The magistrate erred in fact and in law in holding that the delay in investigating and prosecuting the offences was not a mitigating factor.

3 The magistrate erred in law in that prior to passing a sentence of imprisonment he failed to:-

(b) satisfy himself that no other sentence was appropriate;

(c) state reasons for the decision that no other sentence was appropriate

contrary to the Crimes Act 1914, s17A.

4 The magistrate erred in law in that he directed himself that a custodial sentence was not appropriate for the applicant, if he was satisfied that AFMA was to cancel the fishing permit of Fishpak Pty Ltd.

5 The magistrate erred in that he found the evidence did not support the inference that AFMA would act to cancel the fishing permit of Fishpak Pty Ltd.

6 The magistrate erred in law in that he failed to give sufficient weight to the character and antecedents of the applicant.

7 The sentence was manifestly excessive in all of the circumstances."

At the hearing before Underwood J, leave was sought to add two further grounds, one of which was as follows:

"8 There is manifest disparity between the sentence imposed on the Applicant and that of two months' suspended imprisonment which was imposed by M A Hill Esq Magistrate on David Wakefield who was the skipper of the Saxon Onward."

Although not the subject of a specific order amending the motion to review, it is apparent from what Underwood J said in his reasons that he regarded himself as having amended the motion to review by adding ground 8 as drawn. No order was made as to the other proposed additional ground and its terms are not recorded in the material which was placed before this Court during the hearing of the present appeals. Underwood J considered Brinkman's appeal only in relation to ground 8.

Having reached the conclusion which he did that ground 8 should be upheld, he said at 15:

"There is no need to consider any of the other grounds for a review of sentence. Success of any one or more of those grounds will only result in the same order that will be made as a result of the success of ground 8."

Grounds 1 - 7 inclusive were therefore not considered by Underwood J and, consequently, it may be necessary for this Court to do so if we conclude that the present appeal should succeed. It was urged upon us by counsel for Brinkman that if we should reach that conclusion, it would be appropriate to remit the matter of sentence back to Underwood J so that consideration may be given by him to these grounds. I cannot agree that such a course would be appropriate. This Court had before it the same material as was before Underwood J and counsel for both appellant and respondent were in a position to make all relevant submissions to us upon that topic.

My learned brother Slicer has taken the view that Underwood J was not in error in dealing with the question of sentence as he did but, with all respect, I cannot agree. The question is not whether Underwood J correctly reviewed and took account of the similarities and differences between Brinkman's and Wakefield's criminality and personal circumstances in imposing the substituted sentence which he did, but whether or not he correctly regarded Brinkman as having a justifiable sense of grievance that a markedly disparate sentence of greater leniency had been imposed upon a co-offender within the principles discussed by the High Court in Lowe v R (1983 - [1984] HCA 46; 1984) 154 CLR 606 and, more recently, in Postiglione v R [1997] HCA 26; (1997) 189 CLR 295.

Unless there was a marked disparity of the relevant kind, Underwood J, proceeding as he did on ground 8 of the motion to review alone, would not have been justified in interfering with the learned magistrate's decision as to penalty. It is that alleged error on the part of Underwood J which is challenged by grounds 1 and 2 of the present appeal. If, and only if, those grounds fail, is it appropriate that this Court should then proceed to consider ground 4?

The grounds of appeal before this Court are as follows:

"1 That the learned Judge erred in law in holding that there was a basis for justified sense of grievance on the part of the Respondent as a result of the sentence imposed upon the co-accused David Wakefield.

2 In determining that there was a marked disparity between the sentence imposed on the Respondent and that imposed on the co-accused David Wakefield, the learned Judge failed to have any or any adequate regard to relevant considerations, namely;

(a) that the Respondent fell to be sentenced in respect of two offences under section 107 of the Fisheries Management Act 1991 committed on successive days, whereas David Wakefield fell to be sentenced in respect of one offence only;

(b) the relative roles of the Respondent and David Wakefield in the commission of the one offence in which they were co-accused;

(c) the absence of any expression of remorse by the Respondent in contrast with David Wakefield, who pleaded guilty.

4 Having found sentencing error on the part of the Magistrate, the learned Judge's resentencing discretion erred in :

(a) imposing a sentence that was manifestly inadequate ;

(b) having too much regard to the sentence imposed on the co-accused David Wakefield;

(c) having insufficient regard to the factors distinguishing the criminality of the Respondent from that of Wakefield."

Whilst I agree with Underwood J that ground 8 of the motion to review was available to Brinkman as a basis for challenging the learned magistrate's decision, I am of opinion that on the facts presented to him in relation to the sentencing of both Brinkman and Wakefield, there was no marked disparity which justified his intervention and consequent reduction of the penalty which was imposed by the learned magistrate. As Dawson and Gaudron JJ pointed out in Postiglione at 301:

"In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated."

I am prepared to assume (without deciding) for present purposes that Brinkman and Wakefield may properly be characterised as "co-offenders" for the purpose of considering this principle, even though they were charged with separate and distinct offences and Brinkman was convicted of two offences, whereas Wakefield was convicted of one only (compare Postiglione at 325 per Gummow J).

Underwood J considered that there was "no doubt" that Brinkman and Wakefield were "like offenders with respect to the offence concerning the 'Saxon Onward' and both were entitled to be treated alike for the purpose of sentence." It is with this conclusion that I have difficulty. Co-offenders are not necessarily entitled to be treated alike, although, as Gaudron and Dawson JJ pointed out in Postiglione at 302, there must be "due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality." In the case before the Court on that occasion, it was recognised that the differences between the co-offenders Postiglione and Savvas, who were joint conspirators, "clearly required" that one receive a "markedly lesser" sentence than the other.

As Doyle CJ said in R v Cox (1996) 66 SASR 152 at 159:

"If there are factors which support different treatment then, to use expressions in the authorities, there can be no justifiable sense of grievance on the part of the offender who receives the heavier sentence, no appearance of unfairness to the community."

In my opinion, there were obvious differences which existed between the relevant matters properly to be taken into account in the sentencing process which served to distinguish Wakefield from Brinkman and which justified a significantly different outcome in each case. Some of these factors were mentioned by Underwood J at 13 and 14 of his reasons for judgment, but it may be useful to re-tabulate those matters, together with other features which were drawn to our attention during the hearing of the appeal which show, on the one hand, circumstances of similarity and, on the other, circumstances of difference.

a) Both were mature, adult males who had been in the fishing industry for many years.

b) Both had played a role in assisting the authorities study the Orange Roughey industry.

c) Neither had prior convictions for dishonesty in relation to the fishing industry.

d) Both deliberately made the false statements attributed to them as the foundation for their successful prosecutions.

e) Both were taken to have achieved some financial gain by means of making the relevant false statements.

a) Wakefield pleaded guilty. Brinkman was found guilty only after a lengthy and protracted trial.

b) Wakefield was found to be remorseful. Brinkman was not (and it was not contended that he was).

c) Wakefield was convicted of one offence only. Brinkman was convicted of two separate offences committed on different days.

d) Wakefield claimed that Brinkman had told him what to put on the false documents and this was accepted by the magistrate, M Hill, who sentenced him. No such claim was made against Wakefield by Brinkman in the proceedings against him. Accordingly, as the same modus operandi was employed in respect of the two offences of which he was convicted, it may safely be inferred that Brinkman was the "mastermind" or prime mover behind the offences.

e) In the case against Brinkman it was submitted by the prosecution that an actual custodial sentence was appropriate but, in Wakefield's case, the prosecution conceded that a suspended gaol sentence "would not be inappropriate".

Both sentencing magistrates correctly considered the relevant sentencing principles which should apply to cases of this kind. Both regarded the offences committed as blatant and serious. Both imposed sentences of imprisonment although, in Wakefield's case, the sentence for his single offence was two months, rather than three as in Brinkman's case.

Underwood J attributed this difference as being explicable on the basis of its being a discount in Wakefield's favour in recognition of his plea of guilty, but, in the absence of any such explanation by the sentencing magistrate, I cannot regard such an explanation as necessarily being correct. As pointed out above, there were several features which distinguished the offenders.

It is noteworthy that the magistrate who sentenced Wakefield did so with full knowledge of the sentences which had been imposed several weeks earlier upon Brinkman. True, it is, that he did not perform a close comparison between those sentences and that which he proposed to impose upon Wakefield within the context of a disparity argument such as that presented to Underwood J and to this Court, but, as he determined to impose a lesser penalty upon Wakefield, it was probably unnecessary for him to do so as the course which he took would be incapable of sustaining an appeal on such grounds.

True, it is, that there is a significant difference between a sentence which is wholly suspended and one which is not but, in the absence of manifest disparity between comparable offenders engendering justifiable grievance for perceived injustice, there can be no successful appeal on the ground currently under discussion.

In my opinion, Underwood J was in error when he upheld ground 8 of the motion to review and it follows that grounds 1 and 2 of the present appeal must be upheld. In normal circumstances, this would result in the reinstatement of the learned sentencing magistrate's orders.

In opposing ground 4 of the present appeal, counsel for Brinkman urged upon us that the principles embraced by the High Court in Everett v R [1994] HCA 49; (1994) 181 CLR 295 were applicable in the present circumstances, but I cannot accept this. The question here is whether or not the learned magistrate's original sentences should stand. The appellant does not seek to have them increased. He merely asks this Court to affirm the penalties then imposed. Though "double jeopardy" in the true sense is not in question, I think that the reasoning of the High Court in Davern v Messel (1983 - [1984] HCA 34; 1984) 155 CLR 21, may be applied to cases such as the present and that it may be said that where a convicted offender has himself commenced the appellate process by challenging the sentence imposed in the lower court and the reviewing judge has then fallen into error in reducing that sentence, there is no relevant element of double jeopardy if, on further appeal to a higher court, that court exposes the error and concludes that the original orders should not have been disturbed.

On this view there is no need to consider whether an appeal in a case such as the present should be equated to an appeal by the Crown or whether the fact that the leave of the court is unnecessary before bringing an appeal, such as the present, distinguishes these proceedings from an appeal by leave to the Court of Criminal Appeal (cf R v Harland-White 23/1997, CCA per Wright J at 1 - 2).

There is, therefore, no reason for this Court declining to interfere with Underwood J's orders on discretionary grounds and the orders which he made must be quashed. However, he dealt with only one of the grounds upon which the motion to review sentence was sought. For the reasons expressed in the concluding paragraph of the reasons published by the Chief Justice, I am of the opinion that the remaining grounds of the motion to review should be remitted to Underwood J for his further consideration and determination. I agree with the orders proposed by the learned Chief Justice.

The appellant Brinkman was the director of Fishpak Pty Ltd, a licensed receiver of fish landed from two fishing vessels, the "Saxon Onward" and the "Moira Elizabeth", from which some 26,048 and 27,000 kilograms respectively of Orange Roughy fish had been unloaded in the Port of Hobart. Brinkman was subsequently convicted of providing false information in relation to the consignment received from the vessels by stating the weight of the "catch" to be 12,672 kilograms from the "Saxon Onward" and 24,152 kilograms from the "Moira Elizabeth". Associated charges relating to the completion of documentation were also made with respect to the consignments.

Brinkman and Fishpak Pty Ltd have appealed against their partially unsuccessful appeals against conviction, whilst Dix, a Fisheries Officer, seeks review of the penalty imposed on Brinkman.

The essence of the appeals against conviction is whether or not the prosecutor was required to prove that the fish (or at least those in excess of the stated weights) had been caught within designated waters for which certain quotas had been fixed by a management authority. The appeal against sentence is concerned with the principles of inadequacy and parity.

In 1993, the management of Fisheries in the Australian Fishing Zone, defined by the Fisheries Management Act 1991 (Cth), s4, ("the Act"), was the responsibility of the Australian Fishing Management Authority ("AFMA") which was afforded power to issue fishing permits, which in some cases were limited to identified species of fish, determine quotas and impose conditions on the permit holders. Further legislative power was afforded for the purpose of defining and prescribing fishing areas by reference to geography and for the species and quantities of fish which could be taken from within those areas. A method of supervision and enforcement was to require the completion of returns and certification by permit holders of the weight and species of fish landed and their intended designation. It was the inaccurate completion and return of those forms (SEF2 forms) which form the basis of the charges brought against the appellants.

The offence alleged against Brinkman relating to the "Moira Elizabeth" related to the making of a false statement on 13 August 1993, in that he:

"... did knowingly make a statement to the Australian Fisheries Management Authority that was false or misleading in a material particular in that he certified that a consignment of fish of the species Orange Roughy (Hoplostethus Atlanticus) received by Fishpak Pty Ltd on 12 August 1993 weighed weighed (sic) 24,152 kilograms which was false in that the true amount was approximately 27,200 kilograms."

The offence involving the vessel "Saxon Onward" related to the furnishing of similar information on 12 August. The offences alleged against Fishpak Pty Ltd relate to the same vessels, and are comprised of allegations that the company presented false documents and gave false returns.

The findings of the learned magistrate as to the quantity and species of fish unloaded were not in issue, and, whilst the identity of the maker of the documents was disputed, there was cogent evidence permitting the findings made by the learned magistrate.

The appellants were permitted to receive fish from a natural resource. In return for economic advantage, they agreed to be subject to recording and reporting conditions. The relevant section creating the offence required the existence of knowledge that the information was false or misleading. In assessing the question of knowledge, a court is entitled to take into account, as a matter of evidence, the competence and responsibility of the permit holder in relation to the completion of documentation. Discrepancy of the order of 3,000 and 13,000 kilograms ought provide a commencing point for the determination of the lawfulness of conduct. The grounds of appeal relevant to the provision of information are:

"1 The learned judge erred in finding that the stated weight was false without having determined what information was required by:

(a) the Australian Fisheries Management Authority ('AFMA'); and/or

2 The learned judge erred in finding that the Appellant knowingly made a false statement without having determined that the Appellant knew the form required details of the entire catch irrespective of its origin.

(b) the appellant knowingly stated a false weight."

The SEF forms included detailed advice, instructions to permit holders for the "South-East Fishery". That advice included:

"Accurate weight - you must provide accurate weights of fish landed. A separate Catch Disposal Record page with accurate weights must be completed for each consignment of fish sent to a processor prior to despatch of that consignment. A consignment consists of a single load of fish going from a one vessel to one receiver."

The receiver was required to complete Part C of the form. The form required the permit holder to state whether the return related to the whole or part of the catch and the species and weight of such catch. Each page of the return contained the advice:

AFMA policy provides that the SEF permit will be suspended if the permit holder or his representative fails to lodge this record, accurately completed within 24 hours of the unloading, to AFMA or its agent."

Part C required the receiver to certify the information provided. There can be no doubt that the authority had made clear the necessity for accurately recording the weight of each return. Even if the advice as to the origin of the catch was not specified in the prescribed forms and attached advice, it was clear that certification was no mere formality. The Act, s107, provides:

"A person must not knowingly present a document, make a statement or give a return or information, that is false or misleading in a material particular, to AFMA or another person performing duties under this Act or the regulations."

Assuming that the form did not address the question of whether all of the catch had come from the prescribed area, the offence would nevertheless be proven if the relevant court or tribunal were satisfied, to the requisite degree, that the relevant person had certified the weight of the fish taken (or landed) knowing such certification of weight to be correct, irrespective of origin. That requirement was the purport of the legislation which was to ensure supervision of quotas from prescribed areas. The method employed was certification of the weight of fish landed so that an evaluation could be made of the accuracy of any claim that the quota had not been breached. Even if all of the fish described in the returns had been caught outside the relevant zone, the appellants would have been guilty of the offence. The appellants argued that the data required by the forms was deficient in that:

(a) it sought only information relating to fish caught in a designated area; or

(b) it sought information which included fish caught outside the area for which AFMA possessed power,

and, if the intention was the latter, then the form did not give effect to that intention. It was not contended by the appellants that any requirement to provide information relating to fish caught outside the waters prescribed by the legislation was beyond the power of the Commonwealth (see Hart v Woods [1972] Tas SR 143). The forms are entitled "South-East Fishery Catch Disposal Record" and require the permit holder or representative to state whether the return relates to the whole or part of the catch. The requirement to state whether the fish unloaded constitutes the whole or part of the catch relates to the portion of the catch consigned, rather than its origin. The form itself states that:

"If more than one vehicle is used to transport this consignment, a separate SEF3 Transit Form must be completed for and sent with each separate load."

The learned primary judge dealt with this aspect in his reasons for judgment A134/1997, at 5 - 6:

"The representation in Part C is (relevantly) confined to the weight of a consignment of Orange Roughy received on 12 August 1993. No part of the statement made by the applicant refers to the South-East Fishery, nor to where the Orange Roughy were caught. There was ample evidence to establish elements 1 and 2, and, with respect to 4 (that the stated weight was false), and 5. Whether error attended a finding, if any, that the applicant made the relevant statements to AFMA, is a separate ground of appeal to which I shall turn later. This leaves the only question: was the statement made by the applicant in Part C false in a material particular viz, was the false statement of the weight of Orange Roughy received material to AFMA? It clearly was, in my view, even in the absence of evidence of where the consignment or any part of it was caught."

Proof that the fish referred to in Part C were caught in the South-East Fishery is not an element in the offence. No part of the impugned statement alludes to where the fish were caught. Is proof that the fish were caught in the South-East Fishery necessary in order to provide the false statement with the necessary materiality? The statement is made on an SEF2 form. AFMA have a statutory obligation to manage (inter alia) the Orange Roughy Fishery in the South-East Fishery. To assist in the discharge of this obligation, AFMA collects data about the fishery on SEF2 forms. A material or important part of that data is the weight of Orange Roughy caught in the South-East Fishery. It would make no difference to the materiality of a false statement whether the weight of fish caught was over-stated or under-stated. Similarly, it would make no difference to the materiality if the fish were in fact caught in the South-East Fishery or not. If a statement concerning the weight of Orange Roughy caught is made on an SEF2 form AFMA will take that statement into account in the discharge of its statutory obligations. One can imagine an extremist who hopes to persuade the Authority to reduce the Orange Roughy quotas lodging information with AFMA overstating the weight of Orange Roughy caught. Such a statement would be taken into account by AFMA and thus would be false in a material particular. In this case, a false statement on an SEF2 form would be material unless it was something that would not be taken in account by AFMA in the discharge of its obligations concerning the management of the Orange Roughy Fishery in the South-East Fishery. Thus, the provenance of the fish, the weight of which was not disclosed, is not an element in the offence, nor is evidence that such fish were caught in the South-East Fishery necessary to establish that the false part of the statement made by the applicant on SEF2, Part C was material."

The conclusion that at least a portion of the catch had been taken from prescribed waters was open on the evidence. The appellants, either directly or through a representative, completed documentation which related to a designated area, that is, the South-East Fishery Zone. The completion of the forms required that attention be given to the weight and consignee of the designated species of fish. The magnitude of the discrepancy of weight was compelling evidence that the provider of the information knew that the relevant representation was false. The fact that neither appellant gave nor adduced evidence is irrelevant to this issue, and the learned primary judge was correct in rejecting the application of the principles stated in Weissensteiner v R [1993] HCA 65; (1993) 178 CLR 217, relied upon by the learned magistrate in determining this question. The fact that no evidence was called by or on behalf of either appellant simply meant that the learned magistrate was required to make findings on the totality of the evidence before him, which, as it turned out, did not include an account proffered by either appellant. That evidence might have been capable of establishing a finding that all or a portion of the catch had been taken from designated waters, although the learned primary judge rejected such a finding. Irrespective of origin of the fish, the finding that the documentation entitled "South-East Fishery" was false in a manner "of moment or of significance, not merely trivial or inconsequential" (Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz [1992] FCA 71; (1992) 110 ALR 367 at 371) was open on the evidence before the learned magistrate. The question of "knowledge" as outlined by the High Court in He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523, related to the weight of the consigned catch, and there was sufficient evidence to establish that the knowledge, actual or imputed, of each appellant concerning such matter was of a nature to warrant conviction. It follows that grounds 1 - 3 ought be rejected.

"The prosecution failed to prove that the making of the statements was voluntary."

Ground 4 was never argued before the learned primary judge, and, for this reason alone, ought be rejected. Even if considered on merit, the ground would fail.

AFMA policy provides that the SEF permit will be suspended if the permit holder or his representative fails to lodge this record, accurately completed within 24 hours of the unloading, to AFMA or its agent."

The note accompanying the forms contained the following advice:

"What penalties apply in relation to these forms ?

* If the white copies of these forms are not lodged at a nominated location within 24 hours or if the forms provided are not accurate and complete, AFMA may suspend the offending fisherman's SEF permit until it receives complete and accurate records. These forms must be lodged with AFMA or its agent within 24 hours of unloading

* Under subsection 42(2) of the Fisheries Management Act 1991 it is a condition of a fishing concession that holders comply with regulations relating to the provision of returns. The courts can impose maximum penalties of $10,000 upon conviction for the offence of contravening a condition of a fishing concession.

* Under section 107 of the Fisheries Management Act 1991 the courts can impose maximum penalties of imprisonment for up to 12 months for persons upon conviction for the offence of providing information in a record, report, return or other document that is to the knowledge of the person false or misleading in a material particular."

Counsel for the appellants contended that since there was no legal obligation for a receiver to complete the form, the threat of sanction rendered the act of completion involuntary. In part, it would appear that the appellants rely on the proposition stated in Cleland v R [1982] HCA 67; (1982) 151 CLR 1, in that, at least, in such a circumstance, the Court has the power to exclude the evidence in the exercise of discretion. Although counsel for the appellants relied on the following passage of the judgment of Brennan J in He Kaw Teh v R (supra) at 582:

"There is a presumption that in every statutory offence, it is implied as an element of the offence that the person who commits the actus reus does the physical act defined in the offence voluntarily and with the intention of doing an act of the defined kind.",

the existence of the advice as to penalty did not rebut that presumption. Part C of the form was designed to verify that the weight of fish declared by the permit holder accorded with that received. Even if there was no legislative power to require completion (and the matter was never raised) the Court is required to be satisfied in relation to a particular matter on the evidence before it. There was no evidence other than that the appellants completed the documentation in the ordinary course of their business. Threat of sanction had not deterred either from a false certification and the existence of the advice in the accompanying explanatory notes could not be said to have forced completion, accurate or otherwise. The Act, s42, provides:

"Holders of fishing concessions to furnish returns etc

(1) The regulations may provide for the holders of fishing concessions to record, and furnish returns containing, information in relation to:

(c) the processing of fish taken under fishing concessions and the sale or disposal of fish so processed.

(2) It is a condition of a fishing concession that the holder of the fishing concession will comply with the requirements of any regulations made by virtue of subsection (1)."

The Act, Part 2, provides for the issue of permits to "Fish Receivers", such permits being subject to conditions, whilst the Act, s92(2)(b), requires the provision of information and permits the making of regulations:

"(b) requiring such persons to give returns or information in relation to fish received by them, ... ".

The written submissions of the appellants suggest "it does not appear to be disputed that there was no such obligation on 'receivers' at the time of the alleged offence". It may be that had the matter been raised, the respondent would have been able to show that the requirement was a consequence of one of the conditions imposed in relation to the permit, or that there existed a general regulation. The appellant ought not be permitted to raise the argument on this appeal.

(a) that the evidence was sufficient to prove that the Appellant had relevantly made the impugned statement in Part C of the form to AFMA; and

(b) in the event that the statement was made to AFMA, that the statement was made to AFMA at Hobart In Tasmania."

Ground 5(b) has not previously been raised, and ought not be permitted. (See Pantorno v R [1989] HCA 18; (1989) 166 CLR 466.) The ground of appeal does not specify whether both appellants claim error. In relation to Brinkman, there was evidence that the writing on the form was comparable to his own. A white copy of the completed form was required to be lodged at a nominated locality within twenty-four hours of unloading. The learned primary judge dealt with the substance of ground 5(a) in the following manner at 8:

"An element in the offence charged was that the statement which was false in a material particular was made to AFMA by the applicant. There is no doubt that the statement was made to AFMA by someone. It was produced from the authority's records. Apart from the evidence of the handwriting expert that tended to prove that the statement was made by the applicant, there was no other evidence relevant to this issue. The learned magistrate did not directly address this matter in his reasons for judgment, although in order to proceed to conviction he must have been satisfied beyond reasonable doubt that the applicant did make the relevant statement to AFMA.

A reasonable inference from the fact that the applicant completed Part C is that he intended to deliver it to someone. Otherwise, there would be no point in him completing the form. The printed instructions on the part to be retained by the receiver state that Part C is to be sent to AFMA. The uncontradicted evidence is to the effect that it was sent to AFMA. In the absence of any conflicting evidence, it seems to me that the evidence to which I have referred was sufficient to enable the learned magistrate to infer therefrom that the applicant, either directly, or by the hand of another, sent the statement he made in Part C to AFMA."

There was no error in either the reasoning or conclusion. Accepting that ground 5(b) might be argued, it is, nevertheless, misconceived. The complaints allege the making of a false statement "at Hobart", such being made to the AFMA. It was the conduct of the appellants at Hobart which was the occasion of unlawfulness. Even accepting that the documentation was forwarded directly to the authority in Canberra, the offences had been committed in Hobart. In any event, the description that the offences had been committed at Hobart was a "particular" of the charge and not an ingredient of the offence. The convictions would have remained valid even if the Court at first instance had concluded that the information had not been furnished or supplied until received by the authority at its office in Canberra. Grounds 4 and 5 are rejected.

The learned magistrate had accepted that the prosecution was required to prove that at least the undeclared portion of the catch came from the South-East Fishery area. The learned primary judge concluded that the magistrate had erred in holding that there existed sufficient evidence to establish that the fish had, in fact, been taken from the prescribed area, but that such a finding was not necessary in order to ground the convictions. Having found error, the learned primary judge considered whether the provisions of the Justices Act, s110 (2)(ab), that:

"(ab) in a case where the court considers that no substantial miscarriage of justice has occurred even though the cause or matter raised by the motion might be decided in favour of the applicant, dismiss the motion;"

The principles governing this statutory provision have been applied by this Court in Kelly v O'Sullivan (1995) 4 Tas R at 446.

In effect, the learned primary judge concluded that the magistrate had reached a correct decision, although the reasoning was flawed. In his opening statement made on the hearing, counsel for the prosecutor did not advance a proposition that there existed a requirement that the fish came from designated waters. That proposition was first advanced by counsel for the appellants in the course of a "no case submission". In rejecting that submission, the learned magistrate nevertheless accepted that the prosecution was required to prove that the undeclared portion of the catch came from the designated area. That approach advantaged the appellants, whom it is said, might have taken a different course in the presentation of their respective cases. The relevant grounds of appeal state:

"6 The learned judge erred in the exercise of his discretion under 110(2)(ab) of the Justices Act 1959, including taking into account:-

(a) whether the Appellant had been 'inhibited' in his defence by the erroneous ruling of the Magistrate;

(b) the failure of the defence to lead evidence notwithstanding that the Magistrate's view of the law coupled with His Honour's findings of fact would have resulted in the dismissal of the informations without the need for the Appellant to go into evidence;

(c) what evidence would have been led by the Applicant at first instance in circumstances where on His Honour's findings the prosecution evidence was incapable of satisfying the charge as defined by the learned Magistrate; and

(d) speculation as to why no defence evidence was called.

8 The learned judge erred in concluding that the Appellant's conviction was inevitable.

9 In all the circumstances the Appellant lost the chance of an acquittal that was fairly open."

The learned primary judge dealt with the issue in the following manner, at 10:

"Careful consideration of that submission leads to the conclusion that although the mistaken view of the defence about the materiality of the provenance of the fish certainly led to the failure of the applicant to adduce any evidence, it could not be said that such failure was occasioned by any error on the part of the learned magistrate. The first time the learned magistrate expressed a concluded view about this matter was when he overruled the submission of no case to answer. The ruling was against the applicant. The ruling was correct. The only error was that it was based, in part, on an erroneous view with respect to one of the legal elements in the charge laid against the applicant. The ruling did not inhibit the applicant from calling any evidence that he wished to call. It may have been thought that if defence evidence was adduced, cross-examination might reveal the provenance of the fish. Whether to proffer defence evidence and take that risk, or whether to avoid that risk and repeat the legal submission already made, was entirely a matter for the applicant and his advisors. The decision taken was based solely upon a belief that the legal submission made on behalf of the applicant was correct and, tactically, it would suit him best if the defence adduced no evidence.

It has been conceded that the learned magistrate's findings with respect to the weight of the catch unloaded are unassailable, so the only possible view of the evidence in the court below is that despite the errors, conviction was inevitable and therefore no miscarriage of justice has arisen from the errors of law that I have identified."

It is difficult to see what potential courses of action were affected by the ruling and reasons of the learned magistrate. Given the ruling, there remained a possibility that evidence of origin might be required to establish that the catch, or portion thereof, came from outside the designated area, or at least negate the prosecution case on this matter. But whether such evidence was called, or whether, if called, it was either accepted or rejected, matters not; it was irrelevant to the basis of conviction. All other matters such as the weight of the catch, the making of the forms, falseness and knowledge, remained in issue. Any decision to call evidence on those matters was unaffected by the ruling. The appellants might well have decided that the preferable course was to decline to provide evidence and rely on the inadequacy of the prosecution case as to the origin of the fish, but such tactical decisions are integral to any trial process. Had the learned magistrate determined on the "no case" submission that the origin of the catch was not germane, the choices open to the appellants remained the same. His ruling, erroneous, but favourable to the appellants, might have afforded encouragement, but, even assuming the basis of the ruling to be correct, the appellants remained at risk of conviction. It was thus incumbent on them to consider and choose a course which they assessed to be most favourable to their cause. Absent the issue of origin, the evidence on the remaining matters clearly supported the conclusion reached by the learned primary judge. As to whether the appellants lost "a real chance" of acquittal, it is for a court reviewing conviction to consider, in real rather than hypothetical terms, whether on the evidence taken together with the application of legal principles, there existed, but for the misdirection in law (in this case by the learned magistrate) a potential course which, if taken, could have resulted in a different result. As Brennan, Dawson and Toohey JJ stated in Wilde v R (1987 - [1988] HCA 6; 1988) 164 CLR 365 at 372:

"The loss of such a chance of acquittal cannot be anything but a substantial miscarriage of justice. The question whether the jury would inevitably have convicted falls to be determined by the Court of Criminal Appeal. It is a question which the Court of Criminal Appeal must answer according to its assessment of the facts of the case. In this case the Court of Criminal Appeal answered it adversely to the applicant, and there is nothing to show that the answer was wrong."

Grounds 6, 8 and 9 have not been established. Ground 7 of the notice of appeal claims:

(a) the hearing at first instance was conducted on the basis that it was for the prosecution to prove as an element of the offences the origin of the fish said to have been unloaded;

(c) the Magistrate's view of the law coupled with His Honour's findings of fact would have resulted in the dismissal of the informations without the Appellant going into evidence."

It is correct to state that the findings of the learned primary judge as to sufficiency of evidence, taken together with the learned magistrate's application of the law as he perceived it to be, would have resulted in the dismissal of the charges. But nothing flows from this. Had the learned magistrate upheld the "no case" submission, the decision would have still been erroneous. In relation to ground 7(a), it was not the position that "the hearing at first instance was conducted on the basis" of the origin of the fish. The prosecution case had been conducted on the basis that it was not required to prove the origin of the catch and such was not an issue until the making of a "no case" submission. It was the defence which determined the parameters of the legal issues. If such were found to be erroneous, the appellants would not be permitted to claim miscarriage by reason of their own approach to the issue. This was not a case where the irregularity in the conduct of the trial (that is, the basis upon which the magistrate made his "no case" ruling) "can be described as fundamental such as to go to the root of the proceedings", KBT v R (1997) 72 ALJR 116, Kirby J at 125.

The appellants contend that they were denied an opportunity to further address the learned primary judge at a stage when he had determined that the magistrate had been in error in that:

(b) the Appellant did not have a proper opportunity to address the prosecution case in light of the learned judge's findings of both law and fact; and

10 The conduct of the proceedings both at first instance and on review resulted in procedural unfairness to the Appellant."

On the hearing before the learned primary judge, the appellants raised the issues of materiality of origin, and of the sufficiency of evidence to warrant a finding that the fish had come from a designated area, in their following amended grounds:

2A The magistrate erred in law in that he proceeded to determine the case against the applicants on the basis that that (sic) the particular said to be material, was the weight of the South East Fishery fish, rather than the weight of fish irrespective of its origin.

2B The findings that the complaints were proved were unsafe and unsatisfactory in that the prosecution and defence cases were conducted, and the magistrate proceeded to determine the case, upon the basis that the particular said to be material was the weight of South East Fishery fish, rather than the weight of fish irrespective of its origin."

The issues were defined at the commencement of the hearing before the learned primary judge. In the course of argument, counsel for the appellants had been asked to articulate the nature of the evidence which could have been called had the magistrate correctly stated the law in his ruling on the "no case" submission. Counsel was unable to make adequate response. But such does not constitute procedural unfairness. The Court was required to consider whether or not there had occurred a "miscarriage of justice" and to assess the effect of the erroneous ruling. In determining that effect, the Court explored likely alternative options which were reasonably open to the appellants. It did so and concluded that, in reality, the effective error did not impact on the form of presentation of the defence.

There was no failure to afford the appellants procedural fairness.

"11 The convictions were unsafe and unsatisfactory in all the circumstances."

It is a compilation of the other grounds and has no independent or separate basis. Given the conclusions reached in relation to those other grounds, there is no need to give further consideration to this ground and it ought be dismissed.

The appellant Dix has sought review of the penalty imposed by the learned primary judge following the upholding of the original appeal against sentence by the respondent Brinkman. The original penalty imposed by the magistrate was an effective sentence of imprisonment for three months and a fine of $6,000. The learned primary judge, having upheld the appeal, was required to exercise his own discretion in relation to sanction. He imposed a sentence of three months' imprisonment upon each conviction, but ordered that the respondent be released upon his entering into a recognisance. In doing so, he had regard to a penalty of a two months' suspended sentence imposed some two months subsequent to the imposition of the sentence on the respondent, on David Robert Wakefield, the skipper of the "Saxon Onward", with respect to similar conduct in relation to the same "catch".

The appellant contends that the sentence imposed was manifestly inadequate and proceeded from an incorrect application of the principles concerning parity.

The appeal ought be regarded as a Crown appeal against sentence and the permitted approach governed by the principles stated by the High Court in Everett v R [1994] HCA 49; (1994) 181 CLR 295.

"1 That the leaned Judge erred in law in holding that there was a basis for justified sense of grievance on the part of the Respondent as a result of the sentence imposed upon the co-accused David Wakefield.

2 In determining that there was a marked disparity between the sentence imposed on the Respondent and that imposed on the co-accused David Wakefield, the learned Judge failed to have any or any adequate regard to relevant considerations, namely;

(a) that the Respondent fell to be sentenced in respect of two offences under section 107 of the Fisheries Management Act 1991 committed on successive days, whereas David Wakefield fell to be sentenced in respect of one offence only;

(b) the relative roles of the Respondent and David Wakefield in the commission of the one offence in which they were co-accused;

(c) the absence of any expression of remorse by the Respondent in contrast with David Wakefield, who pleaded guilty."

Wakefield had been convicted of the making of a false statement in relation to his certification of Parts A and B of the SEF2 form. He had pleaded guilty, which entitled him to a mitigating matter in accordance with the principles discussed by this Court in Pavlic v R (1995 - [1995] TASSC 96; 1996) 5 Tas R 186. He had been convicted of one offence only, whilst the conduct of the respondent encompassed two catches on separate days. The sentencing magistrate paid regard to the sentence imposed on Brinkman in his determination of the penalty appropriate for Wakefield. Brinkman on his appeal then sought that regard be had to the Wakefield penalty on the basis of parity. This circular approach is fraught with difficulty and should be considered with caution. However, experience shows that circumstances giving rise to a "circular" approach are rare. The learned primary judge did take into account the differences between the two offenders and his sentence reflected such difference. In his consideration of the test of justified grievance, the learned primary judge had regard to the following salient features:

* Brinkman had no prior convictions, whereas Wakefield had some prior matters put before the Court.

* both persons had been in the fishing industry for many years.

* Wakefield had been convicted of one offence on one day, whilst Brinkman had been involved in different acts of deception involving separate vessels.

* Wakefield had pleaded guilty and was sentenced on the basis that "Brinkman told Wakefield that amount to put on the form".

* both persons were professionally involved in the fishing industry for gain, one as a fisherman and the other as a processor.

The sentence imposed on Wakefield reflected the differences between the two offenders. The task required of the learned primary judge was to compare those differences and penalties, and to decide whether there was due proportion between them. The penalties requiring such consideration were:

Wakefield: two months' imprisonment but to be released upon entering into a recognisance in the sum of $2,000 on the following conditions:

1 that he be of good behaviour for a period of two years.

2 that he commit no offence under the Fisheries Management Act or similar legislation during that period.

Brinkman: three months' imprisonment with respect to each charge, such sentences to be served concurrently.

The learned primary judge was required to give effect to the proposition stated by Dawson and Gaudron JJ in Postiglione v R [1997] HCA 26; (1997) 145 ALR 408 at 412:

"Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality."

The learned primary judge accepted the differences between the offenders, but was required to consider their due proportion. The real question was the existence of an immediate custodial sentence imposed on the appellant, compared with a conditional suspension for Wakefield. He was required to pay regard to the provisions of the Crimes Act 1914, ss16A and 17A, and to the principles stated in Lowe v R [1984] HCA 46; (1984) 154 CLR 606 and Postiglione v R (supra). In doing so, he concluded at 15 that:

"There is a great deal of difference between a sentence of imprisonment, the execution of which is conditionally suspended, and a sentence of imprisonment, the execution of which is to take immediate effect. There were no circumstances that warranted conditional suspension of the execution of the sentence of imprisonment in Wakefield's case that were not present with equal force in the case of the applicant. The difference of one month in the length of the sentences is explicable by the fact that Mr Wakefield legitimately received a discount for his plea of guilty. Leaving that to one side, the plain fact is that with respect to the offence concerning the 'Saxon Onward', the applicant was sentenced to an immediate term of imprisonment of three months, while the sentence of imprisonment imposed upon the co-offender was wholly suspended. Different orders for the execution of sentence cannot be justified and is so gross that it constitutes a marked disparity engendering in the applicant a justifiable sense of grievance."

The sentence took into account differences in the culpability and circumstances of the two offenders. Its suspension gave effect to the matters which were common to both. Given that the respondent had no previous convictions, it was not inappropriate that the learned primary judge had regard to the comparable suspension of Wakefield's sentence, and the sense of grievance engendered by the imposition of an immediate custodial sentence. The appeal based on parity has not been made out.

"4 Having found sentencing error on the part of the Magistrate, the learned Judge's resentencing discretion erred in:

(a) imposing a sentence that was manifestly inadequate;

(b) having too much regard to the sentence imposed on the co-accused David Wakefield;

(c) having insufficient regard to the factors distinguishing the criminality of the Respondent from that of Wakefield."

The nature of the offences (Stevenson v Dix (1995) 81 A Crim R 167) and the position of the respondent as a director of a fish receiving company would have permitted the imposition of an effective custodial sentence. The determination of this appeal ought not be regarded as authority for the proposition that an immediate custodial penalty is not warranted for offences of the nature under consideration. But the learned primary judge was required to have regard to the provisions of the Crimes Act 1914 (Cth), s16A, and this appeal is against an exercise of discretion. The decision to suspend the sentence could not be said to be so far outside the permitted range as to be regarded as "manifestly inadequate". This is especially so given the constraints required in the consideration of a Crown appeal (Malvaso v R [1989] HCA 58; (1989) 168 CLR 227, Everett v R (supra)). This ground of appeal ought be rejected.