Authorities on civil penalties for illegal fishing by individuals
68 I was referred to two civil penalty authorities dealing with illegal fishing by an individual. While authority suggests the outcome in prior civil penalty cases should not be used by a Court to determine for itself what the appropriate penalty is in a given case, that restriction does not so aptly apply to a Court in assessing whether a proposed agreed penalty is, or is not, permissible or appropriate: cf NW Frozen Foods at 295C.
69 It may be, in any event, that the time has come to reassess the true scope of the limitation expressed in NW Frozen Foods on taking into account the civil penalties imposed in other cases. Prior civil penalties can legitimately form an important part of the instinctive synthesis to be applied in deciding what an appropriate civil penalty should be, both when one has been agreed upon, and when no agreement has been reached. This is especially so for three reasons.
70 First, the restriction identified in NW Frozen Foods was not advanced by the Full Court as being against the virtue of reasonable consistency, nor as an abstract principle of wide-ranging application to all classes of civil penalty cases. To the contrary, their Honours made specific reference to equality before the law being a hallmark of justice and endorsed prior authority stating that "corporations guilty of similar contraventions should incur similar penalties" and "[t]here should not be such an inequality as would suggest that the treatment meted out has not been even-handed": at 295A.
71 Secondly, the restriction on having regard to the outcome in prior civil penalty cases was expressed in the context of a heterogeneous class of civil penalty cases which gave rise to real difficulties of comparison: NW Frozen Foods at 295B. The problem identified in NW Frozen Foods was that the class of civil penalty cases under consideration involved complicated competition law provisions in which the variety of factors from case to case made meaningful comparison difficult. Comparison by reference to the penalty imposed in such cases was likely to be an illusory benefit, having regard to such things as differing circumstances, size, market power and responsibility for the contraventions: NW Frozen Foods at 295B. Those wide ranging differences do not necessarily apply, at least to the same extent, to all other kinds of civil penalty provisions. In employment cases, and even more so in environmental cases, there will often be greater similarity of circumstances allowing for better comparisons to be made. It is axiomatic that any comparative cases sought to be relied upon must bear some reasonable degree of similarity to the case at hand, and for such similarities (and any material differences) to be identified.
72 Thirdly, the approach to the fixing of civil penalties, especially when not agreed, should probably be reviewed in light of the parallel jurisprudence developed over recent years in relation to the careful and limited use of comparative sentences in criminal proceedings in aid of the fundamental objective of any justice system that like cases are treated in a like manner, working as a system that is systematically fair by way of such things as reasonable consistency: see Barbaro at 73 [38], Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 591 [6], Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 535 [47]-[48], 538 [57], and R v Pham [2015] HCA 39; (2015) 325 ALR 400 at 405-7 [24]-[29] and 410 [46].
73 In any event, I do not consider that NW Frozen Foods, properly understood as outlined above, stands in the way, in all cases, of having regard to the outcomes in other broadly comparable civil penalty cases in the process of deciding whether or not a proposed agreed penalty is permissible and appropriate (cf Thermal Dell at [52] and Lucky S Fishing at 733-4 [67]). This approval is not dissimilar to the process contemplated by the Full Court in Minister for Industry, Tourism & Resources v Mobile Oil Australia Pty Ltd [2004] FCAFC 72; (2004) ATPR 41-993 at 48.627 [54] in referring to a permissible range, and by the High Court in the CFMEU civil penalty case at 484-5 [32] in referring to the range of permissible penalties, to appropriate penalties, and to verification; see CFMEU civil penalty case at 490-1 [56].
74 Prior civil penalties imposed for broadly similar conduct, while no more than historical statements of what has happened in the past, remain useful in appropriate cases as guidance by way of a yardstick against which to examine a proposed agreed civil penalty. An analogy is the accepted reasoning for deciding upon the duration of gaol terms for serious criminal offences by reference to comparative sentences considered, with express limitations, in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at 70-1 [303]-[305], cited and quoted with approval in Hili at 537 [54], to be read in the context of the immediately preceding and following paragraphs and in the context of 527 [18].
75 Of course, a prior civil penalty does not create any binding precedent, any more than a prior criminal sentence does: see Wong at 605 [57], 608 [66], endorsed in Pham at 406-7 [29]. Whether deciding upon a civil penalty or deciding whether a proposed agreed penalty is appropriate, there is no single correct figure: see NW Frozen Foods at 290.9-291.1; see by analogy Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at 624 [46]; Markarian at [27]. Rather the task is to arrive at, or approve, a penalty upon the basis that it falls within an acceptable range, without it ordinarily being possible to know, let alone state precisely, what the upper or lower limits are: Barbaro at 70 [27], 74 [41]; and Hili at 535 [53]-[54]. What is required is reasonable consistency of outcomes to ensure systemic fairness.
76 Any analogy between criminal sentence comparatives and prior civil penalty cases must be applied with caution, not least because of the obvious differences between civil penalty and criminal proceedings, including in particular those identified by the High Court in the CFMEU civil penalty case at 490-3 [52]-[64]. However, notwithstanding those important and fundamental differences, especially as to the role of the regulator in legitimately seeking to influence the quantum of penalty and the proper role of agreed penalties, prior civil penalty outcomes can be a useful guide, by way of a yardstick as part of a process of instinctive synthesis in deciding whether a proposed agreed civil penalty is permissible and appropriate in all the circumstances. The alternative would be to treat prior penalties imposed in other comparable cases as wholly irrelevant, whereas the vice to be avoided is in treating prior penalties as being, in themselves, in any way determinative of the penalty to be imposed in the case at hand, a point well recognised in the effective ban on numerical tables, bar charts and graphs of gaol terms in criminal sentencing: Pham at 406 [28(5)] and 407 [32]; see also 405 [24] and 410 [46]. It is not the civil penalty previously imposed on its own and out of context that is useful as any sort of fixed guide or precedent, but rather that outcome in context as the end product of a process of instinctive synthesis, having regard to the principles applied and the weight given to the various facts and circumstances, as a civil penalty yardstick.
77 Regard may also be had to Pham at 405-7 [24]-[29] as to the use of comparative sentence yardsticks and their limitations, which again has some application in appreciating the limitations of prior civil penalty cases beyond their usefulness in identifying and applying legal principles. An additional cautionary note is that, as with federal criminal sentencing for less common serious criminal offences, there is not yet a large pool of environmental civil penalty case outcomes from which to derive any sense of what emerges as to penalty outcomes from the reasonably consistent application of the relevant principles, especially as to deterrence. As such a pool of cases grows over time, the principled use of them will become more important and more valuable.
78 As I was only directed to a handful of broadly comparable cases, there not being very many such cases available, the yardstick value of the outcomes in those cases is very limited even though the nature of the contraventions in each is not substantially different to the present case. In the first case that I was referred to, Woodley, illegal rock lobster fishing took place in the same protected area as in this case, namely the Marine National Park Zone of the Tasman Fracture Reserve. No rock lobsters were caught and it was accepted that, unlike this case, the contravention was unintentional. Other aspects of the objective seriousness of the breach and the considerations taken into account, especially as to general deterrence, were similar to this case. Foster J ordered the payment of $13,000 by a fisher and $65,000 by his family company. His Honour also ordered payment of an agreed contribution towards the Minister's costs of $17,000 and $28,000 respectively. The maximum civil penalty at that time was $55,000 for an individual, and $550,000 for a corporation.
79 Mr Woodley had similarly poor financial circumstances to those of Mr Hansen. A single case does not make a range, but it would be difficult for Mr Hansen to think he is hard done by in comparison to Mr Woodley, which may well explain his agreement to the penalty proposed by the Minister and the sound legal advice he must have received. But for the agreement reached, taking Woodley into account in the limited way I have identified, in the context of all the other factors present, may well have contributed to an inclination to impose a more severe penalty on Mr Hansen than that agreed by the parties. I note in that regard the view expressed in NW Frozen Foods at 291F (and the prior cases cited therein) that judges should refrain from stating the penalty that they would have imposed but for agreement.
80 The potential for a difference in outcome alone is not such as to permit me to decline to accept the agreed penalty as being within a permissible and appropriate range, even though the metes and bounds of such a range can never be identified with precision. Even if a substantial body of prior civil penalty cases establishes a range of penalties that have in fact been imposed, that history does not establish that such a historic range is the correct range for the case at hand, or that the upper or lower limits so disclosed are the correct upper or lower limits: again, see Hili at 537 [54]; see also Barbaro at 70 [24] - 71 [28] and Pham at 405-6 [27].
81 The second case I was referred to was Karstens. In that case, Jagot J was dealing with a case of illegal commercial handline fishing in another sanctuary zone in the Solitary Islands Commonwealth Marine Reserve on the north coast of New South Wales off Coffs Harbour. Mr Karstens knew fishing was illegal there, but thought the risk of detection was low and took his chances and did in fact catch a fish. When detected, he unsuccessfully attempted to flee. Mr Karstens had a prior summary criminal conviction, but he did not persist with fiction about not fishing illegally once proceedings were commenced. By contrast, Mr Hansen's proceedings were headed towards a contested hearing, albeit with most objective facts agreed, when he finally gave up the fight and admitted to the contravention as well.
82 Jagot J in Karstens had regard to the case of Woodley discussed above and also to the other Environment Protection Act cases against corporate respondents, Thermal Dell and Lucky S Fishing, as well as more general civil penalty cases and principles. The same maximum penalty of $85,000 applied in Karstens, and the penalty imposed was $45,000 after a discount from $60,000 of 25% for significant cooperation. This is substantially more than the penalty proposed for Mr Hansen, for conduct that appears to me to be at least as serious. That has caused me to pause and consider whether this casts doubt on the appropriateness of what has been proposed. In the final result, I do not consider that I can say that the penalty proposed for this case is outside what is permissible and appropriate. A single more severe result in a similar prior case on its own does not of itself allow that conclusion to be reached, applying by analogy the first five of seven criminal sentencing principles summarised by the High Court in Pham at 406 [28] as follows, citations omitted (the remaining two principles address only the role of intermediate appeal courts):
…
(1) Consistency in sentencing means that like cases are to be treated alike and different cases are to be treated differently.
(2) The consistency that is sought is consistency in the application of the relevant legal principles.
(3) Consistency in sentencing for federal offenders is to be achieved through the work of intermediate appellate courts.
(4) Such consistency is not synonymous with numerical equivalence and it is incapable of mathematical expression or expression in tabular form.
(5) For that and other reasons, presentation in the form of numerical tables, bar charts and graphs of sentences passed on federal offenders in other cases is unhelpful and should be avoided.
…
83 The outcome in Karstens would have been part of a range of factors that may have inclined me towards imposing a higher penalty had agreement not been reached between the parties. After all, while numerical equivalence is neither possible nor desirable, it remains the case that, akin to the system of criminal justice, civil penalty justice should be systematically fair and entail reasonable consistency in the application of the relevant penalty setting principles and therefore in the outcomes reached: see Hili at 535 [47]-[48]; see also Pham at 406-7 [29].
84 Counsel for the Minister described the agreed figure as reflecting the lower end of the mid-range of objective seriousness, with a discount of about 15% for cooperation including consent to the facts, submissions, quantum of penalty and a costs order. Although agreed to, the size of the penalty imposed is only just within the range that I consider was appropriate for this conduct once regard is had to the deliberateness of the breach and the delay in conceding the contravention had occurred. That state of satisfaction is necessary before the agreed penalty figure can be adopted and ordered to be paid: see Mobile Oil at 48,627-48,628 [52]-[58], which was approved and succinctly summarised by the High Court in the CFMEU civil penalty case at 484-5 [32].
85 If I was not satisfied that the agreed proposed penalty was appropriate, I would have needed either to return to the parties for further evidence or information, or given the parties an opportunity to withdraw their agreement and proceed to a contested penalty hearing. However, the Court's mere preference for a different figure would not suffice to reject the agreed figure except in a clear case: NW Frozen Foods at 291B; quoted with apparent approval in the CFMEU civil penalty case at 483 [28]. That does not confine the Court to starting with the agreed figure, but does require some process of comparison with an independent assessment of what would be an appropriate or permissible range to apply to the case at hand: Mobile Oil at 48,626 [51(vi)]. The Court must be independently satisfied that the submitted penalty is appropriate: CFMEU civil penalty case at 489 [48]. As I have already indicated, regard can be had to the outcomes in other reasonably comparable cases in reaching that state of independent satisfaction.
86 In the broadly similar case of Karstens referred to above, costs of the Minister were agreed and ordered in the sum of $45,000, a figure that counsel for Mr Hansen referred to in oral submissions. Once Mr Hansen has met his own costs and those of the Minister, which in combination are going to be substantial, his brief foray into illegal fishing will have cost him well over $50,000 and most likely something approaching $100,000. To this must be added the additional inconvenience, burden and stress on Mr Hansen of being involved in the investigation and legal proceedings for a period of over two years since the incident in April 2014. Mr Hansen and others minded to engage in such conduct in the future should seriously consider whether it is worth the risk of such a significant overall impost, stress and inconvenience, and the risk of serious damage to the environment, for such a paltry gain of only about $200.
87 Even with a low risk of being caught, the consequences of a substantial civil penalty, costs and the Minister's costs should make it plain to Mr Hansen and others like him that such a small gain, even if multiplied by a factor of 100 or more, means it is simply "not worth the candle" to engage in conduct of this nature: see Australian Securities and Investments Commission v Vizard [2005] FCA 1037; (2005) 145 FCR 57 at 68 [48].
88 Had Mr Hansen disputed his liability, taken this matter to trial and had the case proven against him, a greater penalty would have been inevitable. The comparative cases that I was referred to, detailed above, indicate that after a contested hearing a much more substantial penalty would have been justified as being within reasonable contemplation, because: (1) there was room for a significantly higher starting point, (2) there would have been little or no discount for cooperation, and (3) the need for specific deterrence would have been greater.
89 A post-contested hearing in which the Minister succeeded would also have been accompanied by a costs order in favour of the Minister involving much higher costs, and would have involved much greater costs of his own for Mr Hansen to meet. Mr Hansen has been very well advised not to take that course. The approach he has taken has undoubtedly saved him quite a lot of money.
90 Given his conduct, Mr Hansen was also fortunate not to have been investigated and prosecuted for a possible criminal offence under s 354A of the Environment Protection Act, for which the maximum penalty at the time for an individual such as Mr Hansen was imprisonment for two years and/or a fine of $170,000. For a body corporate, the maximum fine for the criminal offence under s 354A could be up to five times that amount, ie $850,000, pursuant to s 4B(3) of the Crimes Act 1914 (Cth). It should be noted that since 31 July 2015, the maximum fine for the criminal offence for an individual has increased to $180,000 ($900,000 for a body corporate) and the maximum civil penalty for an individual has increased to $90,000 ($900,000 for a body corporate): see s 4AA(1) of the Crimes Act 1914 (Cth). As noted earlier, those criminal and civil penalties will continue to rise as they are indexed to increase every three years.
91 Taking all of the above facts and circumstances into account, I am satisfied that the agreed penalty of $28,000, being about a third of the maximum penalty applicable at the time, is permissible and appropriate, if somewhat lenient. In my assessment, the agreed penalty of $28,000 is at or towards the bottom of the acceptable range. It follows that I would also have been willing to agree to a more severe penalty. While Mr Hansen's ultimate cooperation reduced the penalty that would otherwise have been imposed for his breach, I would not have been willing to agree to a less severe penalty, at least without some greater degree of mitigation. He has been well-served by his lawyers.
92 In light of all of the above, I am satisfied that it is appropriate and permissible to:
(1) grant declaratory relief as to Mr Hansen's contravention of the Environment Protection Act, in that I am satisfied that the declaration sought by the Minister and agreed to by Mr Hansen is desirable, necessary and appropriate;
(2) impose upon Mr Hansen a civil penalty of $28,000, which is the amount the parties agreed upon; and
(3) order Mr Hansen to pay the Minister's costs, which are not agreed but which may be resolved by agreement, assessment or the seeking of a fixed costs order by the Minister.