Criminal Law - General matters - Ancillary liability - Complicity - Common purpose - Code provisions - Criminal Code (Tas) - Illegal possession of fish - Crime committed continuously before and after formation of common intention - Whether committed in prosecution of unlawful purpose.

R v Grant [1975] 2 NZLR 165, referred to.

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Miscellaneous matters - Fines - Inability to pay - Mandatory fine and discretionary imprisonment.

Sentencing Act 1997 (Tas), ss47(2), 49(1), 50.

Judgment Number: [2006] TASSC 92

1 The appellant was convicted on five counts of an indictable offence contrary to the Living Marine Resources Management Act 1995 ("the Act"), s264(1). Two other men, Barrett and Ho, had previously been convicted of the crime of conspiracy with respect to the same subject matter and corresponding dealings with abalone which were the subject of the indictment preferred against the appellant.

2 Between 1997 and April 2002, Peter Barrett was a director of Barrett Developments Pty Ltd which traded under the name of Tasmanian Sealife ("Sealife"). Sealife held a fish processing licence during the same period issued under the Act. That licence permitted Sealife to process fish, including abalone, at 73 Droughty Point, Rokeby and to operate cold storage facilities at the Hobart wharf. Jeffrey Ho also operated a seafood processing company and in March 1999, commenced dealings, some lawful, some not, with Barrett for the supply and sale of abalone. The operation included the provision of either false documentation, or handling and transportation of abalone without documentation. Barrett and Ho were convicted of conspiracy in October 2002 and March 2003, respectively. Their course of criminal conduct encompassed the same period and fish as that for which the appellant was charged.

3 The appellant and his wife had operated as directors and sole shareholders, a registered company, W K Trading Pty Ltd at Southport in Queensland since October 1995.

4 In 1998, Sealife commenced to obtain illegally sourced abalone through Ho, whilst maintaining its legal purchase, processing and sale of the fish. In January 2000, Barrett, provided with details by Ho, contacted the appellant and established a commercial relationship for the legal sale and distribution of abalone to and through W K Trading. Subsequently, there were general arrangements put in place for the delivery of abalone from Tasmania to Queensland. A proportion of those dealings were lawful and the appellant was only charged with those dealings which involved absence of required documentation.

"(1) A person who, without lawful excuse, has possession of fish with a value exceeding $5 000 is guilty of an indictable offence punishable under the Criminal Code.

(2) The court is to determine the value of fish in accordance with section 269."

6 The five counts on the indictment were in similar form. Each alleges conduct on or about a specified day, namely 20 August, 24 September, 6 December 2001, and 14 February and 28 March 2002. Each count was in accordance with those dates and followed the same form and structure, which relevantly stated:

ILLEGAL POSSESSION OF FISH - Contrary to Section 264(1) of the Living Marine Resources Management Act 1995.

DAVID WEI MENG LEE at Southport in Queensland on or about the [DATE] formed a common intention with Peter James Barrett and/or Jeffrey Thomas Ho, in Tasmania, to prosecute an unlawful purpose in conjunction with one another, namely, the supply of abalone from Tasmania to Queensland which was not recorded in or accompanied by the appropriate documentation as required by the Living Marine Resources Management Act 1995 and/or regulations and/or rules made under the said Act, and in the prosecution of such unlawful purpose the crime of Illegal Possession of Fish contrary to Section 264(1) of the said Act in relation to the possession of [QUANTITY] abalone meats with a value determined in accordance with Section 269 of the said Act exceeding $5,000, namely $[AMOUNT] was committed in Tasmania and such a crime was a probable consequence of the prosecution of the said unlawful purpose."

7 Each count related to the individual deliveries. The prosecution case alleged overall that the appellant was a party to, and the sending by and receipt from Barrett and/or Ho of at least 8,400 individual abalone meats valued at a minimum of $122,000. There was evidence that Ho and Barrett operated two "factories" or depots (one registered and the other illegal) and that abalone was moved between the two places.

8 Each delivery was a consequence of communication. Each delivery required a physical movement of specific amounts of abalone, either to the illegal depot or at least to the place or vehicle of consignment to Queensland. Abalone was sent to the appellant, both lawfully and unlawfully. The abalone sent unlawfully was that which was not accompanied by the required documentation. Once the movement of the abalone commenced, it came within the province of the Act, s264.

"a The learned trial judge erred in law by ruling that as a matter of law the appellant was able to be convicted of each of the crimes of 'Illegal possession of fish' contrary to the Living Marine Resources Management Act 1995 s 264(1) contained in the indictment by reliance on the principle of criminal responsibility contained in the Criminal Code s 4 in circumstances in which the crime of 'Illegal possession of fish' contrary to the Living Marine Resources Management Act 1995 s 264(1) had been completed by Mr Barrett and/or Mr Ho at a time prior to the formation of the alleged common intention between Mr Barrett and/or Mr Ho and the appellant.

b The learned trial judge erred in law by ruling that as a matter of law the accused was able to be convicted of each of the crimes of 'Illegal possession of fish' contrary to the Living Marine Resources Management Act 1995 s 264(1) contained in the indictment by reliance on the principle of criminal responsibility contained in the Criminal Code s 4 by ruling that, notwithstanding the fact that Mr Barrett and/or Mr Ho were in illegal possession of the abalone prior to the formation of the alleged common intention between Mr Barrett and/or Mr Ho and the accused, Mr Barrett and/or Mr Ho again committed the crime of 'Illegal possession of fish' contrary to the Living Marine Resources Management Act 1995 s 264(1) '... when they took a quantity of such fish [from the Richmond factory] and delivered it to a removalist for delivery to Queensland'.

c The learned trial judge erred in law by failing to follow the authority of the High Court of Australia when interpreting the operation of the Criminal Code s 4 in respect of each charge contained in the indictment."

10 It was open for a jury to draw an inference of an intention to prosecute an unlawful purpose, ie, the consignment of fish not accompanied by documentation, and hence unlawfully, at a time prior to the actual physical handling of the abalone which was ultimately received by the appellant. The agreement was prospective to that handling. That Ho and Barrett, given that some of their possession of a proportion of the abalone might have been unlawful for some other reason, did not prevent the further handling from constituting a further act of illegal possession. It is not unreasonable to conclude that at some stage most or all of the abalone held by them had a legal status, or at least abalone illegally received from their suppliers became admixed with other meats. It was the movement of those meats to a removalist, or its preparation for consignment, which was the act of possession conducted in furtherance of a common and illegal purpose. It was the physical custody or control at that stage. That was the approach taken by the learned primary judge when she stated:

"The crime of illegal possession of fish was first committed by Ho and/or Barrett when they came into possession of fish at Barrett's Richmond factory. It was also committed when they took a quantity of fish and delivered it to a removalist for delivery to Queensland. The commission of the crime at that point was to give effect to the purpose of supply. The fact that Ho and/or Barrett may have committed the crime before does not detract from the fact that they committed it after forming an intention to supply."

11 That approach accords with the principles stated in He Kaw Teh [1985] HCA 43; (1985) 157 CLR 523 and nothing which contradicts the statement in R v Barlow (1996) 188 CLR 1.

(1) the dates of contract, consignment and delivery;

(4) the use of removalists not ordinarily engaged in the shipment of produce,

that the appellant engaged with others in a common intention to prosecute an unlawful purpose.

13 The learned trial judge did not err in ruling that the appellant had a case to answer.

14 The appeal against conviction ought be dismissed.

15 I have had the advantage of reading the reasons for judgment prepared by Blow J in relation to ground 2 and agree with both his reasoning and conclusion.

16 I agree, for the reasons stated by Blow J, that this ground has not been made out.

18 I have had the advantage of reading the reasons for judgment prepared by Blow J; I agree with them and the order he proposes.

19 This is an appeal against conviction and sentence. The appellant was convicted on five counts of "illegal possession of fish" contrary to the Living Marine Resources Management Act 1995, s264(1). The learned trial judge imposed a special penalty of $1,226,000 pursuant to s269 of that Act, and sentenced the appellant to 15 months' imprisonment, of which 12 months was suspended on conditions which I need not set out.

20 There are three grounds of appeal. By ground 1, the appellant contends that the learned trial judge erred in law in rejecting a submission that he had no case to answer. By ground 2 he contends that the learned trial judge misdirected the jury in relation to circumstantial evidence. By ground 3 he contends that the sentence was manifestly excessive.

21 According to the evidence, the appellant operated a business in Southport in Queensland at all material times, and it was part of that business for him to buy and sell abalone. The Crown alleged that on five occasions he unlawfully acquired abalone from Tasmania, in that he obtained a supply of abalone that was not recorded in or accompanied by documentation that was required by the Living Marine Resources Management Act and/or subordinate legislation pursuant to that Act. Each of the five counts related to a single consignment of abalone. The five counts were all in a similar form. Count 1 read as follows:

"ILLEGAL POSSESSION OF FISH - Contrary to Section 264(1) of the Living Marine Resources Management Act 1995.

DAVID WEI MENG LEE at Southport in Queensland on or about the 20th day of August 2001 formed a common intention with Peter James Barrett and/or Jeffrey Thomas Ho, in Tasmania, to prosecute an unlawful purpose in conjunction with one another, namely, the supply of abalone from Tasmania to Queensland which was not recorded in or accompanied by the appropriate documentation as required by the Living Marine Resources Management Act 1995 and/or regulations and/or rules made under the said Act, and in the prosecution of such unlawful purpose the crime of Illegal Possession of Fish contrary to Section 264(1) of the said Act in relation to the possession of abalone meats with a value determined in accordance with Section 269 of the said Act exceeding five thousand dollars, was committed in Tasmania and such a crime was a probable consequence of the prosecution of the said unlawful purpose."

22 As can be seen, the Crown relied on a combination of the Living Marine Resources Management Act, s264, and the Criminal Code, s4. At all material times, the former section read as follows:

"(1) A person who, without lawful excuse, has possession of fish with a value exceeding $5 000 is guilty of an indictable offence punishable under the Criminal Code.

(2) The court is to determine the value of fish in accordance with section 269."

23 Under s269 and the Fisheries (Value of Fish) Order 1997, the value of abalone was required to be calculated at $14 per fish. On that basis, each of the five consignments of abalone was worth far more than $5,000. The regulatory regime under the Living Marine Resources Management Act is quite complex. Under the Fisheries (Abalone) Rules 2000, r17(1)(c), it is an offence for a person to have possession of more than 20 abalone unless that person has a particular copy of a particular docket relating to the abalone with the abalone, or has a receipt relating to the purchase of the abalone from a fish merchant with the abalone, or is the holder of a "fishing licence (abalone dive)" who has taken the abalone under that licence and not landed them. That provision was apparently contravened at all material times.

"Where 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose a crime is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the crime."

25 The submission that there was no case to answer can be summarised as follows:

* It was common ground that the appellant arranged for the delivery of each of the five consignments of abalone by speaking by telephone to Barrett and/or Ho.

* As to each count, it was common ground that Barrett and/or Ho were already committing the crime of "illegal possession of fish" before the appellant's telephone call.

* Taking the Crown case at its highest, it was open to the jury to find, as to each count, that the appellant had formed a common intention with Barrett and/or Ho to prosecute the alleged unlawful purpose in conjunction with one another.

* As to each count, since the crime of illegal possession of fish had already been committed before the telephone call, that crime was not "committed" in the prosecution of the alleged unlawful purpose.

26 Before this Court, counsel for the appellant submitted that, at the time when the appellant arranged for the delivery of each of the five consignments, the crime of illegal possession of fish, though not "concluded", had already been "completed", in the sense that every element of the crime had occurred, and the complete crime had been committed. In one sense however, although the complete crime had been committed before the appellant ordered any abalone, the crime continued to be committed thereafter, at least until the abalone left Tasmania.

27 Essentially this ground of appeal raises questions as to the proper construction of the words, "and in the prosecution of such purpose a crime is committed" in the Criminal Code, s4. How are those words to be applied in relation to a crime of a continuing nature? Does s4 make an accessory liable for a crime of a continuing nature that was already being committed before he or she formed a common intention with anybody to prosecute the relevant unlawful purpose? Or does s4 apply only to crimes that are not committed, and do not commence to be committed, until after the formation of such a common intention?

28 Counsel for the appellant relied on R v Barlow (1997) 188 CLR 1. That case concerned the equivalent provision in Queensland: Criminal Code (Qld), s8. That section is identical with Tasmania's s4, except that it uses the word "offence" instead of "crime". In the majority judgment of Brennan CJ, Dawson and Toohey JJ at 10, their Honours said the following:

"In the light of these provisions, 'offence' in s 8 must be understood to refer to an act done or omission made. So interpreting the section, it deems a person falling within its terms to have done the act or to have made the omission which the principal offender has done or made. It fastens on the conduct of the principal offender, but it does not deem the secondary party to be liable to the same extent as the principal offender. It sheets home to the secondary offender such conduct (act or omission) of the principal offender as (1) renders the principal offender liable to punishment but (2) only to the extent that that conduct (the doing of the act or the making of the omission) was a probable consequence of prosecuting a common unlawful purpose. The secondary party is deemed to have done an act or made an omission but only to the extent that the act was done or the omission was made in such circumstances or with such a result or with such a state of mind (which may include a specific intent) as was a probable consequence of prosecuting the common unlawful purpose. Those circumstances, that result and that state of mind are factors which, either together or separately but in combination with a proscribed act or omission, define an offence of a particular 'nature'. Thus the unlawful striking of a blow by a principal offender will constitute an offence the nature of which depends on whether the blow causes bodily harm or grievous bodily harm or death and on the specific intent with which the blow is inflicted."

29 Counsel for the appellant submitted on the basis of that paragraph that Queensland's s8 and Tasmania's s4 are concerned only with criminal liability for acts and omissions, whereas possession is a state of affairs. In R v Grant [1975] 2 NZLR 165 at 169, in which the accused had been charged with attempting to have a narcotic in his possession, Mahon J said at 169:

"But to be in possession or to have an article in possession is neither an act nor omission. It represents not an act but the passive consequences of a prior act, namely, the act of acquisition of possession ...".

That passage was cited with approval by Gibbs J, with whose reasons Stephen J agreed, in Beckwith v R [1976] HCA 55; (1976) 135 CLR 569 at 575.

30 Counsel for the appellant submitted that the acts by which Barrett and/or Ho acquired possession of the abalone to which each count related were acts done prior to the appellant forming any common intention to prosecute an unlawful common purpose in relation to the relevant abalone, with the result that, for the purposes of s4, the crime of illegal possession of fish was not "committed" thereafter.

31 Counsel for the appellant pointed out that the words of s4, particularly "to prosecute" and "the prosecution of such purpose", are prospective in nature. He submitted that s4 was concerned with a sequence of events comprising the formation of an unlawful common purpose, the subsequent prosecution of that common purpose, and finally the commission of a crime in the course of the prosecution of that common purpose.

32 It think it significant that Barlow was not a case about a crime of a continuous nature. It concerned the murder of a prisoner by other prisoners who attacked him. The High Court had to decide whether it was open to the jury to find one of the accused not guilty of murder but guilty of manslaughter. Most crimes are committed, completed and concluded by a principal offender doing an act or making an omission. There are of course a variety of crimes constituted by the possession of such things as stolen property, housebreaking implements, illicit drugs, or undocumented fish. Crimes of a continuing nature involving possession are crimes of a somewhat special class, and not crimes of the type that the High Court was concerned with in Barlow. The High Court was not concerned in that case with any question as to how and when Queensland's s8 applies to an offence of that nature. Although the judgment I have quoted from referred only to acts and omissions, I do not think it follows that s4 and its counterparts should be given a restricted operation in the way that has been suggested.

33 The Acts Interpretation Act 1931, s8A, requires an interpretation that promotes the purpose or object of an Act to be preferred to one that does not. Counsel for the appellant submitted that the purpose of s4 is to deter people from committing crimes, and that it should therefore be interpreted as extending criminal liability to secondary offenders only in relation to the commission of fresh crimes. Deterrence is of course one of the major purposes of every provision that creates or extends criminal liability, including s4. But in my view the principal object or purpose underlying s4 is punitive rather than preventative. When it operates, it exposes to criminal liability all the persons who have formed the intention to prosecute the relevant common unlawful purpose in respect of all crimes committed in the prosecution of that purpose, provided that the commission of such crimes was a probable consequence of the prosecution of that purpose. It is necessary to consider what interpretation of s4 would promote its purpose or object in circumstances where a crime of a continuing nature is being committed by a principal offender; a person previously innocent of that crime forms a common intention with the principal offender that they will prosecute an unlawful purpose in conjunction with one another; it is a probable consequence of the prosecution of that unlawful purpose that the principal offender will continue to commit the original crime; and that person continues to do so in the prosecution of the unlawful purpose. In my view an interpretation whereby the originally innocent person is deemed to have committed the continuing crime is one that promotes the purpose or object of s4. The originally innocent person could and should be deemed to have committed that crime, but only from the time when he or she formed the intention, shared by the principal offender, to prosecute the unlawful purpose in conjunction with that offender. Such an interpretation is consistent with the prospective wording of s4. Such an interpretation is consistent with the purpose of s4 to extend criminal liability to individuals who become involved in conspiracies, plots or schemes when the commission of a crime is a probable consequence of the prosecution of joint unlawful purposes.

35 One of the major issues at the trial in relation to each count was whether the appellant knew and intended that the relevant consignment of abalone was to be sent to him without the documentation required by law. The Crown relied on circumstantial evidence for the purpose of proving that he intended each consignment to be sent to him without the required documentation. For example, there was evidence that the undocumented abalone was sent to the appellant by road transport when abalone was normally sent to him by air; there was evidence that the undocumented abalone was packaged in removalists' boxes instead of the usual packaging for abalone; there was evidence that some of the undocumented abalone was addressed to people other than the appellant, and to addresses other than his business address; and there was evidence that he still received all five deliveries, and that his mobile phone number was written on the boxes. Defence counsel argued before the jury that there were rational hypotheses consistent with innocence that they could not exclude. For example, it was suggested that the undocumented abalone might have been disguised in order to prevent possible detection and theft whilst it was in transit, and that the false names and addresses might have been used for the same reason. It was suggested that road transport might have been used because it was cheaper.

36 It was necessary for the learned trial judge to give a direction to the effect that the jury was not to find the appellant guilty on the basis of circumstantial evidence unless a conclusion of guilt was the only rational inference that could be drawn from the evidence accepted by the jury, and there was no rational hypothesis consistent with innocence: Shepherd v R [1990] HCA 56; (1990) 170 CLR 573. Her Honour began summing up on a Monday. During the Monday she gave the jury the required direction as to circumstantial evidence. She also gave them a memorandum in which the following appeared:

a) The Crown's case relies on circumstantial evidence.

b) Circumstantial evidence is evidence of a fact from which a jury is asked to draw a conclusion or infer another fact. It can be contrasted with what is described as direct evidence. For example, direct evidence would be evidence that A saw B do the thing B is accused of. If no one actually saw B do the act he is accused of, there may be other evidence from which a jury could conclude he did. That other evidence is circumstantial evidence.

c) The commission of a crime may be proved beyond a reasonable doubt by circumstantial evidence if

i) all the facts and circumstances from which you the jury are asked to infer guilt are established beyond a reasonable doubt, and

ii) you, are satisfied beyond a reasonable doubt that the inference of guilt is the only rational inference which is open to you on the whole of the evidence which you have accepted. If there is also open on that evidence any reasonable hypothesis which is consistent with the innocence of the accused, the accused is entitled to be acquitted.

iii) An inference of guilt can be drawn from a combination of facts and circumstances none of which on their own would support that inference."

37 The summing up was almost finished when the court adjourned on the Monday afternoon. Her Honour completed it on the Tuesday morning. She returned to the subject of circumstantial evidence very close to the end of her summing up, and said this:

"I will just remind you also of, I suppose, the overriding matter in this case which, as I have said to you, is that you need to be concerned about, and that is, whether or not there was a common intention reached between the accused and Mr Ho and/or Mr Barrett. That's the basic issue that you need to determine in relation to each charge. It's a circumstantial case. Therefore, if you consider and consider all of the evidence, not just bits and pieces of it, you're satisfied that the only reasonable and rational inference that you can draw is that the accused formed that common intention to supply abalone without dispatch dockets, then you may find him guilty. However, if you find, having considered all aspects of evidence, if you're satisfied that there is a reasonable explanation on all the evidence that was put to you that is consistent with the accused not having formed that intention, but there being a quite innocent explanation for the fish having been sent as it was, then the accused is entitled to a verdict of not guilty."

38 The appellant contends that the final sentence in this passage amounted to a misdirection. His counsel submitted that the words, "if you find, having considered all aspects of evidence, if you're satisfied that there is a reasonable explanation ..." erroneously suggested that the appellant bore the burden of satisfying the jury of his innocence. Similarly, it was submitted that the use of the terms "reasonable explanation" and "quite innocent explanation" referred to something other than a rational hypothesis consistent with innocence, in that they referred not just to an hypothesis but to an actual, rather than theoretical or possible, explanation.

39 When objection is taken to a direction in a summing up, this Court has to decide whether there has been a miscarriage of justice: Criminal Code, s402(1). In order to decide whether there has been a miscarriage of justice, it is necessary not just to consider the passage objected to, but to consider the summing up as a whole. See, for example, La Fontaine v R (1976) 136 CLR 62 per Barwick CJ at 72. The passage objected to needs to be considered in context. The jury had been given a direction as to circumstantial evidence that was thorough, detailed and unexceptionable. Each juror had been given the memorandum containing the direction that I have set out above. In my view there is no realistic possibility that any juror might have thought that the jury was obliged to convict unless one of the suggested innocent explanations was accepted by them as true, or that it was improper to acquit even if a reasonable hypothesis consistent with innocence was open on the evidence that they accepted. Counsel for the appellant did not seek a re-direction in relation to circumstantial evidence, despite her Honour having invited submissions as to re-directions very soon after giving the direction in question. In La Fontaine (supra) at 72 Barwick CJ said:

"The first question, I think, is to determine whether words spoken in terms of the record of the summing up would be so appreciated by the jury as to provide them with a false basis for deciding whether the Crown had proved its case. A cogent consideration to my mind in this connexion is the reaction of counsel for the defence to the hearing of that portion of the summing up."

40 Since no re-direction was sought, I take it that defence counsel at the trial did not regard the passage in question as one that was likely to be misleading. No doubt the jury would have understood her Honour's references to "a reasonable explanation" and "a quite innocent explanation" as references to a possible explanation that could not be excluded.

42 At the trial, it was common ground that the value of the abalone comprised in the five shipments, calculated in accordance with the Fisheries (Value of Fish) Order, was $122,600. The Tasmanian Parliament has enacted a mandatory sentencing provision in relation to offences relating to the possession of fish, namely the Living Marine Resources Management Act, s267. It reads as follows:

"(1) On a finding of guilt for an offence under this Act or regulations or rules made under this Act relating to the taking or possession of fish, a court must impose a special penalty equal to 10 times the value of the fish.

(2) A court must not reduce or suspend a special penalty for any reason."

Her Honour was therefore required to impose a special penalty of $1,226,000, and that is what she did. The appellant contends that that mandatory penalty was so crushing that any additional penalty was inappropriate; that the additional imposition of a partly suspended sentence of imprisonment made the sentence as a whole manifestly excessive; and that her Honour made some specific errors in imposing sentence.

43 The Living Marine Resources Management Act does not specify any penalty for the crime created by s264(1). That subsection simply created "an indictable offence punishable under the Criminal Code". It follows that the Criminal Code, s389(3), applies. That provision reads as follows:

"(3) Subject to the provisions of the Sentencing Act 1997 or of any other statute, and except where otherwise expressly provided, the punishment for any crime shall be by imprisonment for 21 years, or by fine, or by both such punishments, and shall be such as the judge of the court of trial shall think fit in the circumstances of each particular case."

Subject to the maximum sentence of imprisonment being 21 years, the full range of sentencing alternatives is available pursuant to the Sentencing Act 1997, s7.

44 Under the Living Marine Resources Management Act, s262, it is an offence for a person to purchase, sell or have possession of any fish taken or possessed in contravention of that Act. That section specifies a maximum penalty of one year's imprisonment or a fine of $20,000, or both.

45 In her sentencing comments, the learned trial judge said the following:

"The Act creates 2 offences relating to possession of illegal abalone. One may be dealt with summarily and attracts a maximum penalty of imprisonment for 1 year and a $20,000 fine. The other, which is that with which you were charged, is an indictable offence punishable under the Criminal Code and attracts a maximum penalty of 21 years imprisonment. The Act, s267, however also provides for the imposition of a special penalty in respect of both offences. That penalty, irrespective of whether the matter is dealt with summarily or on indictment, is the same, must be imposed by the court and cannot be reduced or suspended in any way. In the present case that penalty has been calculated at $1,226,000. There is a clear recognition by this legislative structure that, irrespective of the special pecuniary penalty, further penalties from a range depending on the seriousness of the offence would be imposed on offenders. In the case of indictable offences, while a fine may be imposed, the fact that one is not referred to as an option suggests the legislature intended a more significant penalty to apply."

46 Counsel for the appellant submitted that the learned trial judge made two errors in the paragraph I have quoted, namely (a) that she wrongly concluded that Parliament required further penalties to be imposed in addition to special penalties; and (b) that she wrongly concluded that the absence of any reference to a fine in s264 indicated that Parliament intended a more significant penalty, presumably imprisonment, to apply. I think that submission should be rejected.

47 There is nothing in the relevant legislation to indicate that Parliament intended in every case that, as well as the special penalty, some additional penalty was to be imposed. But in my view the words of the learned trial judge do not suggest that she made any mistake about that. No doubt Parliament intended that, in the general run of cases, penalties over and above the mandatory special penalties were to be imposed. In my view her Honour was referring only to the general run of cases, and was not saying that it would not be open, in an appropriate case, for the mandatory special penalty to be the only penalty imposed.

48 There is nothing in the relevant legislation to suggest that Parliament intended every contravention of s264 to be punished by imprisonment, or by a tougher penalty than a fine. But, once again, I do not think there is anything in the comments of the learned trial judge to suggest that she thought otherwise. The section can only be contravened in relation to fish deemed to be worth over $5,000. Illegal fishing can be extremely lucrative and very difficult to detect. Parliament therefore decided that serious fisheries offences should be punishable by imprisonment. Her Honour acknowledged that a fine could be imposed for a contravention of s264. There is nothing in her comments to suggest that she made any mistake as to how readily a fine, rather than a sentence of imprisonment, should be imposed.

49 I turn to consider whether the sentence as a whole was manifestly excessive. The sentence comprised the conviction, the sentence of 15 months' imprisonment with 12 months thereof suspended, and the special penalty of $1,226,000.

50 There is no real likelihood that the appellant will ever be able to pay that sum, or any more than a small percentage of it. I think it would be wrong, when considering this ground of appeal, simply to assume that he will pay the special penalty in full, rather than considering the likely real consequences of the order that he pay such an amount.

51 For sentencing purposes, the appellant's counsel provided the learned trial judge with information as to his financial position. That information was undisputed. His business was operated by a company. He and his wife owned the shares in the company, but not beneficially. They held them in trust for a family trust. The net value of the company's assets was said to be about $130,000, but those assets were not the appellant's assets. There were also two pieces of real estate, but the appellant did not own them. His wife held them as a trustee for the family trust. They comprised business premises in which there was an equity of about $200,000, and a home in which there was an equity of about $100,000, but they were not the appellant's assets. There was also a superannuation fund with assets worth about $200,000. The members of the superannuation fund were the appellant and his wife. The learned trial judge was told that the appellant was unable to access that fund until he was 55 years old. According to the appellant's record of prior convictions, he was born in November 1957. He was therefore 48 years old when he was sentenced. At the time of sentencing, the only significant asset beneficially owned by the appellant was apparently a sum of $20,000 which he had paid into Court pursuant to a bail condition. The learned trial judge was told that he and his wife had a "joint salary" of $70,000 per annum that was being paid by their company; that the appellant believed he could borrow $30,000 from his brother; and that he believed he would be able to pay $10,000 per annum towards the special penalty.

52 If the appellant were to become bankrupt, the special penalty would not be a debt provable in his bankruptcy: Bankruptcy Act 1966 (Cth), s82(3). His discharge from his bankruptcy would not discharge his obligation to pay the special penalty, since only debts provable in the bankruptcy are discharged: Bankruptcy Act, s153(1). In simple terms, the pecuniary penalty would survive any bankruptcy.

53 The special penalty is enforceable as a fine pursuant to the Sentencing Act. That Act contains the following definition in s4:

"'fine' means the sum of money payable by an offender under an order of a court made on the offender being convicted of an offence and includes a sum of money payable as costs, a restitution order and a compensation order".

54 One of the conditions upon which the learned trial judge partly suspended the sentence of imprisonment was that the appellant pay $20,000 of the special penalty within 14 days after his release from custody. Otherwise she made no order as to when the special penalty was to be paid. In such circumstances, the Sentencing Act, s44(2), deems a court to have ordered that payment be made within 14 days. Under s47(1) of that Act, a clerk of petty sessions may issue a warrant for the apprehension of an offender who has defaulted in relation to the payment of a fine. Thereafter, if the fine remains unpaid, a magistrate has the power under s47(2) to do the following:

"(a) make a community service order against the offender specifying the amount of community service or other activity that the offender is required to do calculated in accordance with section 48; or

(b) direct that civil proceedings be taken against the offender under the Magistrates Court (Civil Division) Act 1992; or

(c) issue a warrant of commitment against the offender for a term of imprisonment calculated in accordance with section 50 in respect of the outstanding amount of the fine."

Alternatively, when an offender defaults in the payment of a fine and is no longer in Tasmania, or usually resides outside Tasmania, s49(1) empowers a magistrate, on the application of a clerk of petty sessions, to issue a warrant of commitment against the offender for a term of imprisonment calculated in accordance with s50.

55 If a warrant of commitment were issued under s50, the appellant would have to be committed to prison for one day for each "prescribed unit" of the outstanding balance. A "prescribed unit" is $100: Sentencing Regulations 1998, reg5. Thus the appellant would have to be committed for a period of over 30 years if the full amount remained unpaid. If a community service order were made under ss47(2)(a) and 48, the appellant would have to perform seven hours' community service for each outstanding $100 - the equivalent of working seven hours per day, seven days per week, for over 30 years. The Sentencing Act, s46, permits an offender to apply to a magistrate for an order varying the time or manner of payment of a fine. However, such an application may only be made within any period allowed under s44 for payment. Since this Court was not told otherwise, I assume that no such application was made within the 14 days that were deemed to have been allowed under s44(2). It is therefore now too late for the appellant to apply to pay his fine by instalments. There is no provision in the Sentencing Act whereby he can be committed to prison or ordered to perform community service in relation to part of the unpaid special penalty. Any such order could only relate to the whole of the outstanding balance. The purpose of provisions whereby default in the payment of fines may result in offenders being committed to prison or ordered to perform community service is to encourage offenders to pay their fines, not to punish them for failing to do the impossible. In my view, it is highly unlikely that any magistrate would make a discretionary order committing the appellant to prison for decades, or requiring him to perform community service for decades, in consequence of him not paying the special penalty, or in consequence of the bulk of it remaining unpaid. It may be that any such order would be regarded as unreasonable or plainly unjust. I think it therefore follows that, so long as the special penalty or the bulk thereof remains unpaid, the only appropriate or likely means of enforcement would be for civil proceedings to be taken pursuant to s47(2)(b).

56 So long as the State remains interested in recovering the special penalty, it would be prudent for the applicant to arrange his affairs so as not to own any assets that can be sold to satisfy a civil judgment, and so as to minimise any income that could be attached in garnishee proceedings. As he is a Malaysian citizen, he might one day leave Australia and go to a place where the special penalty would be difficult or impossible to enforce. Counsel for the Crown told the learned trial judge that, in the event of a fine being irrecoverable, a submission was normally made to the Executive after five years about the waiver of it. Of course that policy could change, or waiver might be refused. The result of all this is that the practical effect of the imposition of the special penalty is that, for at least five years and possibly much longer, the appellant is likely to be very seriously inconvenienced, prevented from accumulating any significant assets in his own name, and deprived of any substantial funds or other assets that can be identified as being his. Those consequences are serious, but they could have been more serious if the appellant's financial position had been different. If fully enforceable, an order of this nature could turn a millionaire into a pauper. That did not happen in this case.

57 In my view this was such a serious case that, at least when one considers the appellant's financial position and the likely impact of the special penalty, that penalty alone would have been an inadequate penalty. The scale and duration of the appellant's criminality are significant. The first four consignments contained about 550 kilograms of abalone. The learned trial judge had no evidence or information as to the weight of the fifth consignment. About 8,700 abalone meats were counted. They comprised the last four consignments, and a small part of the first consignment, most of which was not counted. There was evidence of a pack containing five abalone meats weighing 400 grams being sold for $450, and of packs of lower quality being sold for less. This was illegal commercial activity on a large scale. The charges spanned a period of about seven months, from August 2001 to March 2002. After the delivery of the first two consignments, a Tasmanian police officer went to the appellant's business premises and warned him about his legal obligations in relation to abalone. He ignored the police officer. That is a significant aggravating factor in relation to the last three counts. It is also significant that sophisticated steps were taken to disguise the packages of abalone and to send them by unusual means of transport to unusual destinations in order to avoid detection. There were matters that the learned trial judge properly took into account in the appellant's favour. He had no significant prior convictions. His financial position was as described above. He made admissions which greatly shortened and simplified the trial. To that extent he was required to be given credit for his desire to facilitate the administration of justice, but he was certainly not entitled to the sort of sentencing discount that would have been appropriate if he had pleaded guilty and saved the cost and inconvenience of a trial altogether. Despite those factors and the likely impact of the special penalty, I think this was a case where a sentence of imprisonment was required because of the scale and duration of the offending by the appellant. Illegal trading in abalone on such a scale can be so profitable that sentences of imprisonment are the only effective way to achieve general and personal deterrence.

58 Although there was no ground of appeal asserting disparity in sentencing, counsel for the appellant made submissions as to the sentences imposed on Barrett and Ho. They each pleaded guilty to conspiracy charges which did not attract special penalties. Each of them engaged in illegal activity on a greater scale than the appellant did, but each co-operated substantially with the authorities after getting caught. Barrett was sentenced to two years' imprisonment, with a non-parole period of one year, and ordered to pay a pecuniary penalty of $447,000. Ho was sentenced to 20 months' imprisonment, with a non-parole period of 10 months, and ordered to pay a pecuniary penalty of $205,000. In comparing the appellant's sentence with their sentences, it is necessary to take into account the possibility that the appellant might ultimately have to serve the whole of his head sentence of 15 months. Like offenders should receive equal justice: Lowe v R [1984] HCA 46; (1984) 154 CLR 606 at 610 - 611; Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 at 301 - 302. However, taking into account the different degrees of culpability of the appellant, Barrett and Ho, and their different circumstances, I do not think it can be said that the appellant's sentence was disproportionate.

59 Having regard to the extent of his criminality and all of the factors that I have referred to, I think that the sentence comprising the conviction, the special penalty, and 15 months' imprisonment with 12 months thereof suspended was a very appropriate one. The suspension of a smaller component of the head sentence would not have been inappropriate. The sentence was not manifestly excessive. Ground 3 must fail.