MacKay v Diman [1999] NTSC 96

Sayang, for commercial fishing in the Australian Fishing Zone contrary to

s 100(1) of the Fisheries Management Act 1991 and of having in his

possession or charge a foreign boat equipped with nets, traps or other

equipment for fishing contrary to 101 (2) of that Act.

The respondent was convicted and released upon entering into a

recognizance to be of good behaviour for a period of five years. An

application made on behalf of the appellant that the vessel and the catch and

equipment on board the vessel be forfeited was dismissed. The appellant

appeals against the decision to dismiss the application for forfeiture on the

Failing to give any, or adequate, weight to the circumstances

the incursion by the defendant into Australian waters

the vessel was engaged in commercial fishing at the

involved in fishing in the area has the capacity to

vessels that conduct of this type will normally result in

the importance of personal and general deterrence in

making a forfeiture order for offences of this type.

Taking into account irrelevant considerations, namely:

the consequences for the defendant upon his return to

The circumstances of the incident as described to his Worship were that on

6 April 1999 HMAS Bendigo was conducting a routine fisheries patrol of the

outer limit in the Australian Fishing Zone. At 9.09 am officers sighted a

blue hulled foreign fishing vessel approximately 4 miles west of the

Bendigo's position. The foreign vessel was approximately 11 nautical miles

inside the outer limit of the Australian Fishing Zone. HMAS Bendigo altered

its course to intercept the vessel which was a small motorized vessel of

At 9.19 am it was noted that a cloud of black smoke issued from the vessel

as it got underway and headed north. HMAS Bendigo increased its speed in

order to intercept the vessel and, on approaching the vessel, officers from

HMAS Bendigo indicated by means of hand signals for the vessel to stop.

The crew of the foreign vessel complied with these instructions. Upon

stopping the vessel it was determined to be 9 nautical miles inside the

The vessel was boarded and identified as the Rini Sayang. There were five

people on board including the respondent who was the Master of the vessel.

The respondent indicated that they had been in the area for one day.

A search of the vessel revealed the presence of five fresh sharks, five to ten

kilograms of recently processed shark fin, a quantity of processed dolphin,

approximately 1000 metres of long line with wet mud adhering to attached

hooks, nine long line anchors and two liquid magnetic compasses. The

The vessel was said to be worth approximately $4000 and, possibly, as much

On the hearing of the plea an issue arose as to whether the presence of the

Rini Sayang in the Australian Fishing Zone had occurred by accident or,

alternatively, by deliberate act. A submission was made to his Worship that

the respondent "did not intend to be within the Australian Fishing Zone, in

fact didn't know he was there". It was submitted that the engine of the

vessel had broken down and that the vessel had drifted into the area over a

period of three nights and three days. His Worship was not prepared to

accept that assertion in the absence of some evidence. He observed that he

"could not be satisfied, without evidence or agreement between [counsel] as

to whether indeed the traversing of the line and the penetration of eleven

nautical miles is by accident" unless he could also determine that the engine

was "good or bad". He noted that in the absence of there being a faulty

engine the submission that the respondent was accidentally within the zone

The appellant indicated that if the issue of a faulty engine and accidental

entry was to be pursued then the appellant would seek an adjou rnment in

There was a short adjournment following which counsel for the respondent

indicated that she would withdraw submissions previously made "about the

accident, your Worship, and the engine breaking down". His Worship

observed that he did not see how it could be established that there was an

accidental reason for drifting into the water in the absence of evidence as to

Counsel then contented herself with repeating that her instructi on was that

her client maintained that he did not know he was in Australian waters and

Bearing in mind the whole of the exchange with counsel it is clear that his

Worship concluded that the presence of the vessel in the Australian Fishing

Zone was deliberate. There were good reasons available for reaching that

conclusion. When sighted the vessel was 11 nautical miles within the Zone

and upon the approach of the HMAS Bendigo its engine was started and it

headed north out of the zone. It was 9 nautical miles within the Zone when

apprehended. The respondent, who acknowledged that he was aware "of the

penalties for being in Australian waters", had available to him the means to

confirm his location by way of the two accurate compasses found on board

the vessel. On his admission the vessel had been at that location for a day

When delivering reasons for decision his Worship made the following

"These Courts constantly hear stories about how boats have drifted in

over the limit line, or tides have driven them in, or the wind has

driven them in, or the compass has broken down. None of this would

occur, of course, if there wasn't a fishing operation carried out right

There is nothing before me which would enable me to conclude, and

in any event it is not being pursued, that your engine had broken

His Worship then proceeded to sentence on the basis of the following

"However it is also clear that the fishing operation, if that can be the

label applied to what you were doing, was with a small vessel,

carrying out its operations at the lowest end of the intrusional scale.

I take into account that you have spent this time in custody, that you

are only 22 years of age, the scale of the fishing operation, the

penalties that you will suffer when you return to Indonesia if the boat

It is just about time that people such as yourself woke up to the fact

that you are being exploited by owners of these sorts of fishing

boats. I will accede to the submission, or request, that I do not

The courts have recognized that the imposition of pecuniary penalties alone

is unlikely to afford adequate protection for Australian fishing grounds from

foreign exploitation: Cheatley v R [1972] HCA 63; (1971-1972) 127 CLR 291 at 296; Chiou

Yaou Fa v Morris [1987] NTSC 20; (1987) 87 FLR 36 at 63; Gayfer v Bere (1998) 102 A Crim

"There is a clear need to protect the resource in the Australian

Fishing Zone outside the MOU area from the considerable threat

which it faces in these waters by sending a clear message to the

owners, as well as the skippers and crews, that conduct of this type

will normally result in forfeiture of the vessel as well as the catch

and equipment in addition to whatever penalties are imposed on the

Such an approach is acknowledged to have an aim addition al to deterrence

and retribution in that it contains "an element of incapacitation which has no

regard to the innocence or otherwise of the person who must bear the loss of

property ... rather the concern of the law is that the offence will not be

repeated by the same means": Re Director of Public Prosecutions; Ex parte

Lawler [1994] HCA 10; (1993-1994) 179 CLR 270 at 290 and 295.

In addition such a penalty applies pressure to the owner of a foreign vessel

to ensure that he or she exercises vigilance to prevent the vessel being used

in breach of the Act. In Re Director of Public Prosecutions; Ex parte

"Illegal fishing in the vast expanse of the Australian territorial

waters is difficult to detect and expensive to combat. The forfeiture

of vessels engaged in illegal fishing not only sends a persuasive

message to potential wrongdoers it also prevents further illegal use

of the vessel and renders the illegal behaviour of the masters and

crews unprofitable. Knowledge by the owner of a foreign vessel that

he or she can lose the vessel also assists in enforcing the Act because

it makes it likely that the owner will exercise vigilance to prevent the

As has been observed in a number of cases the deliberate violation of the

declared fishing zone for the purposes of commercial fishing will almost

invariably result in an order of forfeiture: Liang v Mellon (1981-82) 12 NTR

9 at 12; Hwang Ming Heui v Mellon (1980) 5 NTR 9 at 14; Chiou Yaou Fa v

Morris (supra at 36); Gayfer v Bere (supra at 217).

On the hearing of the appeal in this matter I received a schedule prepared by

the appellant which contained particulars of all cases of this kind to come

before the Courts of the Northern Territory and Western Australia in the

period 19 May 1995 to 11 August 1999. In that period there were offences

involving 116 vessels. Forfeiture was ordered in relation to 113 of those

vessels. Apart from the matter now under consideration forfeiture was not

ordered in only 2 cases. This schedule bears out the observations made in

In the present case the violation was deliberate and in circumstances where

the respondent was aware that penalties were imposed for unlawfully fishing

in the Australian Fishing Zone. It has been said on many occasions that the

proper management of Australian marine resources is undermined by

offences of this kind and there is a special need to deter offenders where

surveillance and detection is difficult and costly. As the schedule has

demonstrated offences of this type are prevalent. The prospect of forfeiture

Having identified the issue of whether or not the entry was deliberate

his Worship then made no further reference to that matter in the course of

imposing sentence. He made no reference to the matters set out above

regarding the need to protect the resource in the Australian Fishing Zone

and the place that forfeiture plays in that process. Rather he concentrated

on matters personal to the respondent and the fact that the operations were,

as he described them, at the lowest end of the scale.

In cases of a Crown appeal an appellate court will interfere only if it be

shown that the decision appealed from was in error based upon the

sentencing Judge or Magistrate having acted upon a wrong principle or

having misunderstood or wrongly assessed some salient feature of the

evidence. It will not interfere with a sentence merely because the Court is

of the view that the sentence is insufficient or excessive: R v Tait (1979) 46

In this case it appears to me that the learned sentencing Magistrate did err in

failing to properly consider and accord weight to the deliberat e nature of the

offending and the principles relating to forfeiture under s 106 of the

Fisheries Management Act. In the circumstances and in addition to the

penalties imposed by his Worship I order that the vessel, the Rini Sayang,

and the catch and equipment used in the commission of the offence be

forfeited pursuant to s 106 of the Act.