Re R v Donald Edgar Hoar and Jack Harry Noble Re Donald Edgar Hoar v R [1981] FCA 20; (1981) 51 FLR 231 (10 March 1981)

FEDERAL COURT OF AUSTRALIA

Re: THE QUEEN
And: DONALD EDGAR HOAR and JACK HARRY NOBLE
Re: DONALD EDGAR HOAR
And: THE QUEEN [1981] FCA 20; (1981) 51 FLR 231
Nos. N.T.G. 28-30 of 1980
Appeals by Crown against sentence - Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Fox J.(1), Muirhead(2) and McGregor(1) JJ.

CATCHWORDS

Appeals by Crown against sentence - Appeal by one respondent against forfeiture order - Conspiracy charges - Whether miscarriage of trial judge's discretion in determining penalties

Fisheries Act, ss. 8A(1)(d), 13(d), 48

Criminal Law and Procedure Act, ss. 36(2), 53(1)

Criminal Law Consolidation Act, s.51

Criminal Law - Conspiracy - Appeal by Crown against sentence - Regard by trial judge to period of imprisonment applicable to specific offence - More than one possible offence involved in conspiracy - Forfeiture of property by defendant - Notice of seizure - Whether conviction an offence in connexion with property seized - Invalid forfeiture order - Regard by trial judge to effect of forfeiture on defendants - Regard by trial judge to legal costs of defendants - Miscarriage of discretion as to sentence - Fisheries Act 1974 (N.T.), ss. 8A (1) (d), 13 (d), 48 - Criminal Law and Procedure Act 1978 (N.T.), ss. 36 (2), 53 (1) - Criminal Law Consolidation Act 1978 (N.T.), s. 51 - Criminal Law (Conditional Release of Offenders) Act 1978 (N.T.). H. and N. were convicted in the Supreme Court of the Northern Territory of conspiracy to committ an offence against a law of the Northern Territory, namely to fish for barramundi during a prohibited period and at a prohibited place and were sentenced to three months' imprisonment but were released upon entering into a recognizance to be of good behaviour for three years. The Crown appealed against these sentences. H. appealed against an order for forfeiture to the Crown of certain property seized.

Held per curiam: (1) The forfeiture order was invalid because the relevant notices of seizure were expressed to be for contravention of the Fisheries Act but as H. had been convicted for conspiracy under the Criminal Law and Procedure Act the conviction was not an offence in connexion with which that thing was seized under s. 48 of the Fisheries Act.

R. v. Cuthbertson, (1980) 3 WLR 89, applied.

(2) The trial judge's exercise of discretion as to punishment had miscarried because: (a) The consequences of the invalid forfeiture on H. should not have been considered. (b) His Honour had acted on the basis that six months' imprisonment was the appropriate yardstick for any period of imprisonment to be imposed as that was the penalty imposed for illegal fishing under s. 14 (1) of the Fisheries Act. However, the conspiracy could not be equated with a single breach of that Act and for each one of the breaches involved in the conspiracy a term of six months' imprisonment could have been imposed. R. v. Morris, (1951) 1 KB 394; Verrier v. Director of Public Prosecutions, (1967) 2 AC 195, referred to. (c) His Honour had incorrectly placed some weight by way of mitigation on the costs to the defendants of the trial.

(3) Appropriate sentences were fourteen months and twelve months for H. and N. respectively with non-parole periods of six and five months respectively.

F. J. Gaffy, for the appellant.

K. R. Murray Q.C. and M. Ward, for the respondent appellant Hoar.

D. W. Muller, for the respondent Noble.

HEARING

Darwin, 1981, February 5-6; March 10. 10:3:1981

Cur. adv. vult.

Solicitor for the appellant: B. J. O'Donovan, Commonwealth Crown Solicitor.

Solicitors for the respondent appellant Hoar: Loftus & Cameron.

Solicitors for the respondent Noble: Waters James & O'Neil.
T. J. GINNANE

ORDER

In Matters No. N.T.G. 28 of 1980 and No. N.T.G. 29 of 1980 and No. N.T.G. 30 of 1980

The Court orders that the appeals be allowed.

(1) The Court's order in matter No. N.T.G. 28 of 1980 is that the appeal be allowed, the sentence of the Supreme Court be set aside and the respondent, Donald Edgar Hoar be imprisoned with hard labour for 14 calendar months. The court directs that he will not be eligible for parole until he has served 6 calendar months of that sentence. No order as to costs.

(2) The Court's order in matter No. N.T.G. 29 of 1980 is that the appeal be allowed, the sentence of the Supreme Court be set aside and the respondent, Jack Harry Noble be imprisoned with hard labour for 12 calendar months. The court directs that he will not be eligible for parole until he has served 5 calendar months of that sentence. No order as to costs.

(3) The order of the court in matter No. N.T.G. 30 of 1980 is that the appeal be allowed. The order for forfeiture against the appellant is set aside. No order as to costs.

Execution of this Court's judgments will be remitted to the Supreme Court of the Northern Territory.

Orders accordingly.

DECISION

DONALD EDGAR HOAR (Hoar) and JACK HARRY NOBLE (Noble) were on 1 October 1980 indicted before a jury on two charges -

Count I -Conspiracy between themselves and with

others to commit an offence against a
law of the Territory: contrary to
section 53(1) of the Criminal Law and
Procedure Act.

Count II -Conspiracy between themselves to obstruct

the administration of justice in the Territory
contrary to section 36(2) of the Criminal
Law and Procedure Act.

Hoar was indicted on two additional charges -

Count III -Assault a peace officer in the due

execution of his duty: contrary to section
51 of the Criminal Law Consolidation Act.

Count IV -Wilful obstruction of a peace officer in

the due execution of his duty: contrary
to section 51 of the Criminal Law
Consolidation Act.

On 17 October 1980, after a joint trial presided over by the learned Chief

Justice of the Northern Territory, the respondent Hoar was convicted on Counts I, III and IV and the respondent Noble was convicted on Count I. There was a verdict of not guilty on Count II.

The Crown appeals against the sentences on the first count. Under that count the Crown alleged a conspiracy to fish for barramundi during a prohibited period, and at a prohibited place, and his Honour directed the jury that conspiracy to do either would involve conviction. It is one of the unsatisfactory aspects of a charge of conspiracy that we do not know whether one only, and if so, which of the offences was found by the jury to be the subject of the conspiracy.

The conspiracy alleged in Count I was as to activities agreed to be undertaken between 1 October 1979 and 28 February 1980.

The maximum penalty, and the sentences passed on both respondents for Count I and on Hoar for Counts III and IV were respectively as follows -

Maximum Sentence passed 23/10/80

Count I Imprisonment for Imprisonment with hard labour for three

three years; in calendar months. Each to be released
some circumstances pursuant to the Criminal Law
longer than three (Conditional Release of Offenders)
years. Act upon entering into his own
recognizance in the sum of $1000 with
one surety in a similar sum to be of
good behaviour for three years.

Count III Imprisonment up to Fined $150.

two years with hard Criminal Law & Procedure
labour or $4000 Ordinance 1978 s.17.
fine

Count IV " "

Certain plant and equipment, and two vehicles, all of which had already been seized, were ordered by his Honour to be forfeited to the Crown.

The respondents when sentenced had been in custody for one week. His Honour expressed the view that the respondent Hoar was clearly the principal in the criminal activity; and his remarks on sentence included -

"The extent and scale of this operation was uncertain but it is probable that enough fish were illegally taken to yield some tonnes of fillets. Bearing in mind the price of barramundi in the territory and in the southern markets there was a possibility of a large profit. Of the 2 of you Hoar was undoubtedly the leader.

I take into account that neither of you has any previous convictions and that there is a good deal of evidence from people of prominence, and others, testifying to your good character and reputation. But, of course, the relevance of such evidence is not so great in the case of a large scale deliberately planned operation. This can hardly be said to be a brief inexplicable departure from ordinary habits of honesty and probity, and to this extent quite out of character.

"I take into account that you have each already suffered a good deal because of your involvement. Noble has lost his fishing licence and is, I suppose, unlikely to recover it for some time if ever.

Hoar's plant was seized and he has lost the use of it for the dry season now ending. The costs of your defence against these charges must have been very heavy. Quite apart from the reputation from which (sic) you both bear you have worked hard and well, particularly in the case of Hoar, have built up substantial assets from your own hard work. You have each in your different ways exhibited care and concern for your dependents and, of course, your close relatives must already have suffered considerably as a result of your involvement in this offence. As I said the other day you should have spared more thought for them before you embarked upon it.

Hoar has lost and will probably lose a good deal more than Noble as a result of conviction. Since I have said he was clearly the principal in this matter, this is, perhaps, appropriate."

The Crown's appeal is on a number of grounds which need not be set out in full. They include that the case was not an appropriate one for release under the Criminal Law (Conditional Release of Offenders) Act; and that his Honour was in error in treating the maximum penalties prescribed for a single offence against section 13(1) of the Fisheries Act as limiting the penalty which it was proper for him to impose for an offence against section 53 of the Criminal Law and Procedure Act. It was further claimed that the learned Chief Justice was in error in taking into account losses presumed to have been suffered as the result of seizure of goods, freezing and abattoir plant and equipment, the fact of the forfeiture he ordered and legal costs incurred in defending the charges preferred. In the case of both respondents, it was claimed that too much weight and significance were attached to evidence of good character; and that there was a failure to give weight or sufficient weight to the evidence of bad character of Hoar.

Hoar has appealed against the forfeiture order made by the learned Chief Justice in respect of certain items seized being those which were at the time of sentencing treated as his. Noble has not appealed against the forfeiture of the Toyota motor vehicle treated as his; counsel has told us that it is virtually of no value.

Towards the conclusion of submissions we were told by counsel, and it is common ground between them, that the property seized and which was ordered to be forfeited was not the property of the respondents but was owned by an incorporated company which had been referred to in the evidence as Buffalo International Co., and of which the respondents were directors or shareholders or both. There was no detail in evidence, nor were we given any, as to the rights of the respondents vis a vis the company or the property, but it is reasonably apparent that they treated themselves as entitled to conduct the affairs of the company, and to regard themselves as owners respectively of the property in question. The company was not given notice of the application by the Crown for forfeiture, and it has not appealed.

Obviously procedural questions arise, but as the validity of the forfeiture was argued as if the respondents were the true owners, and as his Honour took his forfeiture order into account when determining sentence, we shall consider the legal matters in issue.

It has been expressly conceded that the seizure of the plant and equipment referred to in the forfeiture orders made by the learned Chief Justice was lawful. Seizure is the act of the Inspector (vide s.8A(1)(d) of the Fisheries Act); but forfeiture that of the Court.

Section 8A(1) of the Act (formerly Ordinance) so far as relevant reads -

"8A(1) Where an inspector is satisfied that there is reasonable ground for suspecting that an offence against this Ordinance has been, is being or is about to be committed, he may, without warrant, and with such assistance as he thinks necessary -

(a) enter, with such force as is reasonably necessary, at any time, any premises, vehicle, vessel, aircraft or place and, for that purpose, stop and detain any vehicle, vessel, or aircraft;

(b) search the premises, vehicle, vessel, aircraft or place and any person found in or on them or it and any person whom he reasonably believes to be about to enter or to have recently left the premises, vehicle, vessel, aircraft or place;

(c) break open and search any cupboard, drawer, chest, trunk, box, cage, package or other receptacle, whether a fixture or not, in or on the premises, vehicle, vessel, aircraft or place;

(d) seize, take, detain, remove and secure any vehicle, vessel or aircraft or any net, trap or other device for the taking of fish, any plant, motor appliance, fitting, gear or equipment whether in, on or attached to any premises, vehicle, vessel or aircraft or any fish or anything that he finds on any premises, vehicle, vessel, aircraft or place or on any person searched, if he has reasonable grounds to believe that it is evidence of or otherwise relates to any offence that has been, is being or is about to be committed against this Ordinance;

(e) require the master or other person in charge of a vehicle, vessel or aircraft to cause it to stop or to bring it to a place in the Territory and to remain in control of it at that place until an inspector permits him to depart from that place;

(f) stop, detain and search any person upon whom he believes, on reasonable grounds, that there is something that is evidence of or otherwise relates to an offence against this Ordinance; and

(g) take such action as is reasonably necessary to prevent the commission of an offence against this Ordinance.

Section 48 of the same Act under which the learned Chief Justice acted, reads -

"(1) Anything seized under this Ordinance may, on conviction of a person for an offence in connexion with which that thing was seized, at the discretion of the court recording the conviction, be forfeited to Her Majesty.

(2) The forfeiture shall be in addition to and not a part of a penalty imposed under this Ordinance.

(3) Where a seized thing is not forfeited under sub-section (1), section 52 applies as if no prosecution had been instituted within the period referred to in that section.

(4) Notwithstanding sub-section (3) if a person is convicted of an offence in connexion with which the thing was seized, that person is liable to pay to the Commonwealth the reasonable costs of handling and storing that thing from the time it was seized."

There was no evidence before us as to whether any separate liability had been or may be asserted by the Crown to have been incurred by Hoar pursuant to s.48(4).

Section 48(1) requires that before anything seized

". . . . . under this ordinance . . . . . ."

may be forfeited it should appear that the conviction was -

". . . . for an offence in connection with which that thing was seized".

The justification for the seizure has not been the subject of detailed evidence; but his Honour stated in his reasons and it is agreed that the notice (or notices) of seizure were expressed to be for contravention of the Fisheries Act. The conviction for the conspiracy under the Criminal Law and Procedure Act is not therefore a conviction for -

". . . . an offence in connection with which that thing was seized".

See generally R v Cuthbertson (1980) 2 A11 E.R. 401. Accordingly, in our view, there was no entitlement to make the order of forfeiture.

No other basis for forfeiture was said to exist at present, although we were told that charges relating to fish taken were pending in the lower court, and had been adjourned awaiting the outcome of the present appeal. Whether these will be proceeded with, and the possibility of conviction and subsequent forfeiture are not matters we can effectively take into account. Counsel is fully aware of the implications of the situation. The provisions of s.48(2) do not have the effect of excluding from the consideration of a Court passing, or one reviewing a sentence, as we are, the losses flowing to an appellant from seizure. Loss from seizure in this case has been suffered already and will remain even though the order of forfeiture is quashed.

There is reference in Thomas (Principles of Sentencing" 2nd Edition) to orders for "confiscation" of property used for the purpose of an offence. This passage appears at p.336 -

"These cases may justify the view that where the property is specifically adapted for the commission of the offence, or has no other use to the offender, it may be confiscated without regard to the totality of the other sentence or sentences imposed; but where the property is used for a wide variety of purposes and used incidentally in connection with the offence, a confiscation order should be treated as analogous to a fine."

The property seized had been used during most or all of the dry season in connection with a large and profitable buffalo meat business carried on by Buffalo International Co. Much or most of the same equipment was used in 1979 towards the end of the dry season in connection with the fishing operation to which the charges related and which was carried on over a period of about two to three weeks by the respondents. The losses to which his Honour referred were those assumed to be related to the 1980 dry season by reason of the fact that the plant and equipment necessary for its operation had been seized.

We do not therefore accept the Crown's submission that the learned Chief Justice was in error in taking into account estimated losses consequent upon seizure.

As already mentioned his Honour did take into account in mitigation the consequences of the forfeiture he was about to order, and in this, for the reasons already given, he was mistaken.

Having seen the transcript references as to available penalty when the learned Chief Justice was considering sentence, we are quite satisfied that his Honour was under no misapprehension as to what penalty was fixed by s.53, but that he felt constrained to use the notional sentence of six months as a yardstick for any period of imprisonment he might impose because that period was the penalty prescribed for illegal fishing under s.14(1) of the Fisheries Act. Whether he arrived at that view because he felt so obliged as a matter of law from his reading of the authorities; or perhaps was acting on what he thought was a strong recommendation expressed in those authorities, is unnecessary to decide. We observe that, on any view of the evidence, (and it was so conceded) there was more than one instance of fishing and this was contemplated. For each one of these breaches a term of six months could have been imposed. In our view Verrier v. Director of Public Prosecutions (1967) 2 A.C. 195 does not apply to the circumstances present here. In Verrier the conspiracy was to carry out a single operation; here the illegal activity, although stated in the singular in the indictment, was capable of extending to more than one breach, and was left to the jury in this way. There is however manifest in Verrier a general approach to the effect that the penalty for conspiracy should not as a rule be used to increase the penalty or penalties which the illegal activity itself might have been expected to attract.

In our view, the yardstick adopted by the learned Chief Justice in the instant case was not appropriate, and this is a circumstance in considering whether we should interfere.

We do not agree with the criticism of his Honour's reasons that he referred to the character evidence favourable to the accused without referring to the contrary evidence relating to him. His character became an issue in the trial, and evidence of his bad character was called by the Crown. What his Honour said in this connection has already been set out. His Honour was clearly aware of the countervailing evidence, but discounted the importance of evidence of good character in the circumstances of the case. He fairly recorded his awareness of the fact that neither respondent had a prior conviction. As has so often been said one cannot expect of remarks concerning sentence that they be a full and detailed exposition of all relevant circumstances. This would indeed be an impossibility. It is only to be added that his Honour had no way of telling what view the jury took of the character evidence, and he was therefore entitled to form his own view of it.

It does seem however that the Chief Justice did place some weight, by way of mitigation, on the costs to the respondents of the trial. It is difficult to be entirely dogmatic about any aspect of sentencing, but the case must be rare indeed, if there can be such a case at all, when a consideration of that nature can weigh with the court. An accused is not of course to have his sentence increased because he pleads not guilty and puts the Crown to proof, maybe strongly defending the charge. If he pleads guilty, particularly if he manifests his attitude at an early stage, this may be a mitigating factor. But the legal costs of an unsuccessful defence is a different matter.

We are on the whole of the view that in this case the exercise of his Honour's discretion miscarried. We must therefore determine for ourselves the penalties in respect of each respondent.

We will not rehearse all the circumstances referred to by his Honour, or earlier in these reasons. Proof of the conspiracy relied heavily on what was done - on the overt acts - during the period of two to three weeks already referred to. The evidence as to its ambit was conflicting and uncertain but his Honour's view of the facts was that it was a major enterprise involving the illegal taking of some tonnes of fillets. Most of the fish was to be, and was in fact, sent by devious means for sale in Melbourne. Although doubtless expected to yield substantial profits, the enterprise may have been a failure because of the muddy taste of the fish. The fish were taken by night from a part of the Mary River very difficult of access, and numbers of people were involved in the activities.

It was an organised clandestine commercial operation of relatively major proportion, including the depredation of an important resource which the authorities were taking special steps to conserve.

The two respondents provided an effective combination in the operation they conspired to carry out, Hoar by his business experience and the provision of valuable equipment which was eminently suitable for the operation, and Noble with his skill as a fisherman. In this regard a passage in "Criminal Conspiracy in Canada" by Matthew R. Goode though under the sub-heading "Joinder and Conspiracy Rationales" is in point -

"It is generally accepted that conspiracy has two rationales. The primary justification in Anglo-Canadian law is arguably that conspiracy is an inchoate crime, which enables the law to reach out and punish criminal preparation before it reaches the stage of attempt. Secondly, it is said that because several persons are planning together, there is a new "dangerousness" inherent in the plotting, either because several may achieve what an individual would find difficult or impossible, or because other criminal plans may emerge from the group."

We consider there was here a "new dangerousness"; the respondents with their separate contribution were able to achieve what singly each would have found difficult or impossible.

Their agreement was implemented with removal of a considerable quantity of fish, and some financial return, even if a greater quantity of fish were taken than is reflected in the financial reward. His Honour plainly regarded the offence as a serious one.

On the other hand, his Honour found as a major circumstance in favour of a lighter sentence than otherwise he would have imposed the losses the respondents respectively suffered - by reason of loss of income from the buffalo meat activities, loss of fishing licence and forfeiture of goods. As already indicated we are not able to deal finally, or definitively take into account, the consequence of seizure and forfeiture. For that matter, the future of Noble's fishing licence must to us be conjectural.

We bear in mind that the sentences under review were imposed after full consideration by a judge of considerable experience of local conditions cf. Mamote-Kulang of Tamagot v. The Queen [1964] HCA 21; (1963-1964) 111 C.L.R. 62 at p.70.

In arriving at our own conclusion we do in fact accept most of what he has said particularly as it bears on matters of which he has special knowledge and experience. We also appreciate that a conditional release under the Criminal Law (Conditional Release of Offenders) Ordinance is onerous and far from a situation of being freed.

We are of the view that more severe sentences are appropriate which mark the seriousness of the particular conspiracy and the seriousness with which illegal fishing is to be regarded. On the other hand, the law of the Northern Territory does provide summary penalties, imposed by administrative decision, outside the courts, which can have severe consequences, and which have done so in the present case. We believe, too, that with the increased sentences we now impose there should be some difference in the treatment of the two offenders.

In the Order we make, we take into account that the Respondents did suffer a short period of imprisonment before sentence was passed on them.

We allow the appeals by the Crown and set aside the sentences under appeal.

We substitute in the case of Hoar a sentence of imprisonment for fourteen months with a non parole period of six months. We sentence Noble to imprisonment for twelve months with a non parole period of five months. These orders will be remitted to the Supreme Court of the Northern Territory for execution.

On the appeal by Hoar, it is apparent that on any basis the forfeiture was invalid, and that the order was intended to be made against him. We therefore allow Hoar's appeal and set aside the order of forfeiture against him. In all the circumstances we do not propose any order as to Hoar's costs on this aspect of the matter.

The background to this appeal and references to the appropriate legislation are contained in the joint judgment of Mr Justice Fox and Mr Justice McGregor and I will not repeat them. I agree with their conclusions and the orders they propose, but I wish to add a few observations.

Their Honours have referred to the fact that the order of forfeiture cannot stand in view of the reasoning in R. v. Cuthbertson (1980) 2 A11 E.R. 401. I have considered whether the words relating to the power of forfeiture "on conviction of a person for an offence in connection with which the thing was seized" contained in S.48(1) of the Fisheries Act (N.T.) distinguish the situation from Cuthbertson's case where the court was empowered to forfeit "anything shown to the satisfaction of the court to relate to the offence". But both are broadly expressed and Lord Diplock's remarks (at p.405) are relevant to the issue of forfeiture in this matter.

"So one limitation on the subject matter of an order for forfeiture is that it must be something tangible. There is also another; that what is forfeited must be shown 'to relate' to an offence under the Act of which a person has been convicted by or before the court making the order. For the purposes of s.27 one is therefore looking for an offence which is not only an offence under the Act but also an offence which in its legal nature is of a kind to which something tangible and thus susceptible to forfeiture can be 'said to relate'. This cannot in my view be properly said of the offence of conspiracy which in its legal nature does not involve any dealing by the offender with anything tangible at all, but consists entirely of an unperformed agreement to do so. Whether he performs the agreement or does not is irrelevant to the commission of that offence. If the offender does perform it, he commits a separate and distinct offence for which something tangible may quite properly be said to 'relate' for that is a verb which in its ordinary meaning has wide connotations. Proof of the commission of one or more such separate and distinct offences may be, and in the absence of a plea of guilty generally is, relied on as evidence from which the existence of the agreement constituting the conspiracy is to be inferred. But where, as in the instant case, the only charge relied on to justify a forfeiture is one of conspiracy, then although the separate and distinct offences which have involved the offender's actual dealing with something tangible may have been proved in the course of the proceedings, none of them is an offence of which the accused has been convicted by or before the court empowered by s.27 to make the order of forfeiture."

Section 48(2) of the Fisheries Act provides that "forfeiture shall be in addition to and not a part of a penalty imposed under this ordinance". It was suggested that this had the effect of excluding from the consideration of a court passing sentence the losses flowing to the convicted person from seizure and consequential forfeiture. I agree that it has no such effect.

Section 48(2) was inserted to declare that an order of forfeiture was to be regarded as an exercise of power distinct from the imposition of penalty in the case of a substantive offence, not as a direction that the loss caused by forfeiture can not be taken into account by a court imposing penalty when the defendant is also the person suffering deprivation or loss by seizure or forfeiture. The sentencing discretion is a wide one in which the situation of the accused himself must always be relevant. It would be wrong in my view for a judge deciding an appropriate sentence to put out of his mind that the prisoner had by seizure or a concurrent forfeiture order been deprived of substantial property or means of legitimately earning his living by utilisation of his equipment and plant. The evidence before the trial judge as to the plant and equipment forfeited was not satisfactory, either as to value or ownership. It appeared that a company or business in which Hoar had a substantial interest (Buffalo International) might in fact have been the true owner of all or some of the forfeited items, but Hoar's interest therein was not, as I read the transcript, in issue.

I do not agree with the Crown's submissions that the learned Chief Justice was in error in taking into account possible losses to the appellant Hoar, consequent upon seizure. We were told that we do not know what the future holds concerning forfeiture and my judgment as to the appropriate penalties in the Crown appeals has in no way been influenced by reason of the fact that this Court has set aside the order concerning forfeiture.

I agree that it is undesirable - especially when considering custodial penalty - to take into account the costs of the prisoner's defence - costs which are neither proved as payable nor capable of assessment by the sentencing judge.

I turn to the question of the penalties imposed. The transcript suggests that the learned Chief Justice took the view that the maximum penalty which he could impose on the conspiracy charge was imprisonment for six calendar months. He stated "I am of the view that the maximum penalty for a conspiracy charge is imprisonment for six months and I consider that in view of the scale and the planned nature of the offence a sentence of imprisonment is richly deserved in each case."

It was argued that his Honour intended to convey only that as the maximum custodial penalty for contravention of matters declared pursuant to s.13(1) or things prohibited under s.14(1) of the Fisheries Act was in each case six months, he considered that period was the yardstick appropriate to the offence rather than available pursuant to the legislation. Having perused the transcript of submissions made concerning penalty, I lean to the view that his Honour considered himself bound as a matter of law to regard six months' imprisonment as the maximum, but it may be that he intended to convey that despite the provisions of s.53 of the Criminal Law and Procedure Act (which lays down a maximum of 3 years imprisonment for the offence of conspiracy) he felt constrained by authority to regard imprisonment for 6 calendar months as the maximum custodial penalty.

Conspiracy is no longer punishable in the Northern Territory by discretionary imprisonment in accordance with the old common law principles when imprisonment was at large, provided that it was not inordinate and that it paid regard to the penalty for the substantive offence. (R. v. Morris (1951) 1 K.B. 394 and Verrier v. Director of Public Prosecutions (1967) 2 A.C. 195). Section 53 of the Criminal Law and Procedure Act 1978, recent legislation, creates the statutory offence of conspiracy to commit an offence against a law of the Territory. the penalty provided is:

"Imprisonment for three years or, where the offender conspired to commit an offence punishable by imprisonment for a period longer than three years - imprisonment for that longer period."

This may be contrasted with the provisions of s.541 of the Queensland Criminal Code which specifically provides that:

"If the greatest punishment to which a person convicted of the crime in question is less than imprisonment for seven years" (the Queensland penalty for conspiracy) "then to such lesser punishment."

In the Territory there is no legislative direction to this effect and in my view it is erroneous to assume that the relationship between the penalty for the substantive offence and for the conspiracy to commit that offence must be maintained down the scale, as it were, as well as up the scale.

The courts have rightly exercised a critical approach, not only to the laying of charges of conspiracy rather than charging the particular offence, but also as to the imposition of penalties higher than those provided for the substantive offence. Lord Pearson spelt this out clearly at the conclusion of his reasons in Verrier v. Director of Public Prosecutions (above) but it must be remembered the penalty was there at large. Lord Goddard stressed in R. v. Morris (supra) at p.399 that as the conspiracy related to a course of smuggling the situation had to be regarded more seriously than one isolated offence.

"Where the evidence showed that the only matter in which the defendant had been concerned was one definite offence, it would obviously be wrong, by means of indicting him for conspiracy, to impose on him a longer sentence than he could have received if he had been indicted merely for the substantive offence. But in the present case the appellant has been engaged in a traffic which obviously has been going on for many months; he has had four motor-cars fitted so that this traffic can be carried on, and was smuggling on a very extensive scale. We are concerned now not with the case of one isolated offence, but with a case in which the judge came to the conclusion on the evidence before him, as he was well justified in doing, that the appellant had been engaged for a period of eight months either in preparing to smuggle or, probably, in actually smuggling. Therefore, in the opinion of the court, it was a case which deserved and received severe punishment in the hope that other people might be discouraged from doing likewise."

It is no doubt proper, despite the statutory provision of a three year maximum penalty, to pay regard to the maximum penalty for the substantive offence when that is less than three years. But that is only one consideration. It must be the function of the court to examine the entire nature of the conspiracy. Here the respondent's illegal conspiracy envisaged repeated breaches of the Fisheries Act and was of its very nature likely to defeat the policy of government in preservation of the barramundi fishing industry. It was erroneous in my view, bearing in mind the scale of the operation to equate its seriousness with a single breach or to use the penalty for a single breach as the appropriate measure. The commercial nature of the venture was an important and serious feature. I consider the learned trial judge erred in treating 6 calendar months imprisonment as either the maximum available or the maximum appropriate in the circumstances. Such a view is at odds with the philosophy expressed in both Verrier and Morris.

During argument before us it was submitted by counsel for Noble that the seriousness of the offence had been over emphasised. It suffices to say that the conspiracy involved a planned and continuing breach of the law by men who must have known very well and that the prohibition they determined to breach was designed to preserve a most important resource in the Northern Territory. As Fox and McGregor JJ. have stressed, by background and experience they were well equipped for such an illegal venture. Their conspiracy was designed not only to defy and perhaps take advantage of the prohibition but of its nature was such as to defeat the objectives of the legislation to their own advantage and to the detriment of the community, including others whose living depends on fishing. It was in my view an offence which in the community interest required significant punishment in the hope that others tempted so to offend may be deterred by the knowledge that detection results in firm punishment. In the vastness of the Territory surveillance to preserve national resources is no easy thing, nor is it easy to detect those who offend after careful planning. It follows that the sanctions provided by the courts must play their part in discouraging such ventures.

The learned Chief Justice had of course to consider very impressive evidence of good character. He was dealing with men whom he was told had shown prior initiative, who were without prior convictions. There was evidence of their past discharge of responsibilities despite difficulties, of their family situations. But on a charge of this nature where the offence is so deliberate and the risks no doubt calculated, such evidence will seldom have the impact, as in the case of a defendant who has committed perhaps a single foolish or spontaneous offence, a consideration to which his Honour himself referred.

This Court has often and recently emphasised that the discretion of the trial judge as to sentence can only be interfered with when error or the application of wrong principle is cogently demonstrated. But after anxious consideration I also have concluded that the sentences imposed were wholly disproportionate to the gravity and extent of the conspiracy and it becomes the duty of this court to determine the appropriate sentences. I agree therefore that the sentences of the learned Chief Justice should be set aside and the sentences referred to in the joint judgment of Fox and McGregor JJ. must be imposed. I also agree there should be no order as to the costs of these appeals.