Holland-Booker v Australian Tuna Fisheries Pty Ltd & Orsnam No ERD-01-379 [2001] SAERDC 114 (21 December 2001)

Last Updated: 24 June 2002

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Reasons For Penalty Delivered By Her Honour Judge Trenorden

Hearing

17/07/2001.

Catchwords and Materials Considered

CRIMINAL LAW --- PARTICULAR OFFENCES

Complaint under Sections 32, 44(1) and 105(3) of the Development Act 1993 - offences relate to placement of cages for the purpose of farming southern blue fin tuna - defendants body corporate and directors pleaded guilty to all offences - extenuating circumstances: S16 Criminal Law (Sentencing) Act, with regard to one defendant - penalties imposed.

• Development Act 1993 ;
• Criminal Law (Sentencing) Act 1988 ;
• Fisheries Act 1982 , referred to.
• Holland-Booker v Sarunic & Sons Pty Ltd & Ors [2001] SAERDC 23, applied.

Representation

Complainant: GLORIA DAWN HOLLAND-BOOKER
Counsel: MR M NICHOLAS - Solicitors: CROWN SOLICITOR'S OFFICE

Defendant: AUSTRALIAN TUNA FISHERIES PTY LTD
Counsel: MR M COATES - Solicitors: COATES PTY LTD

Defendant: HAGEN STEHR
Counsel: MR M COATES - Solicitors: COATES PTY LTD

Defendant: MARCUS STEHR
Counsel: MR M COATES - Solicitors: COATES PTY LTD

ERD-01-379

Judgment No. [2001] SAERDC 114

21 December 2001

GLORIA DAWN HOLLAND-BOOKER

v

AUSTRALIAN TUNA FISHERIES PTY LTD

&

HAGEN HEINZ STEHR

&

MARCUS ANTHONY STEHR

(ERD 379 OF 2001)

[2001] SAERDC 114

THE COURT DELIVERED THE FOLLOWING REASON FOR PENALTY:

1. Australian Tuna Fisheries Pty Ltd pleaded guilty to each of four counts of offences against Sections 32 and 44(1) of the Development Act 1993. Hagen Heinz Stehr and Marcus Anthony Stehr being directors of the defendant company pleaded guilty to each of 4 offences charged pursuant to Section 105(3) of the Development Act, in consequence of the company's pleas as set out above. The offences relate to the placement of 4 fish cages, in one cluster, for the purpose of the farming of southern blue fin tuna by the company, at a location near Louth and Rabbit Islands in the waters of Spencer Gulf in the State of South Australia. The company farmed tuna in 4 of the cages. Upon the relevant date, namely 30 April 1999, the defendant company did not hold a development authorisation issued under the Development Act, to undertake development, namely changing the use of the land at the said location, in each case. I find the elements of the offence made out with respect to each count against the company. I find the defendant, Australian Tuna Fisheries Pty Ltd, guilty of each of the offences as charged.

2. This matter was heard, together with the complaint against Sea Marine Holdings Pty Ltd and two directors thereof (Holland-Booker v Sea Marine Holdings P/L & Ronald Harry Forster & Timothy Ronald Forster (ERD 380/2001)), in which they were charged with similar offences, at a location nearby, on the same date. The background to these offences is virtually identical to the background to the offences to which Sea Marine Holdings Pty Ltd, and the directors charged, pleaded guilty. On 22 March 1999, the defendant company confirmed, by letter signed by its manager Mr Chillingworth, that the pontoons (cages) would be moved by 6 April 1999. I need not repeat the balance of the background, but incorporate it into these reasons, and I have taken it into account in determining the penalties to be imposed in this matter. Australian Tuna Fisheries Pty Ltd, like Sea Marine Holdings, had originally been tuna farming in Boston Bay.

3. The same matters were put in mitigation of the penalty as were put with respect to Sea Marine Holdings Pty Ltd. Australian Tuna Fisheries Pty Ltd moved their cages on or about 30 April 1999, but not to an authorised location. Here, as in Sea Marine Holdings, I have followed the approach of Holland-Booker v Sarunic & Sons Pty Ltd & Ors [2001] SAERDC 23, taking into account the differences between the facts in that matter and those in this matter.

4. I was informed, without challenge, that the defendant company has pleaded guilty at, effectively, the first opportunity to do so. No environmental consequences or any other injury, loss or damage as a result of the offence is alleged. The industry is high-risk, and capital intensive, although the farmed tuna may command high prices in Japan, with resulting substantial profits to the company. The net profit in the case of the almost identical situation in Sarunic was estimated at about $381,000 in total for 3 cages of tuna, based on figures provided by the defendant company in that matter. Nothing different has been suggested here.

5. There are no prior offences. The defendant company is unlikely to offend against the Development Act, in this way again.

6. The maximum penalty for the offences in each case, is $30,000. Where a company is guilty of an offence, the directors are guilty and liable to the same penalty, in the absence of a defence being proved: S105(3) Development Act.

7. I was referred to the matter of Sarunic (above) where the company and individual directors were charged with the same offences, and almost identical facts. In that matter, this Court convicted and fined the defendant company the amount of $8,000. There are two essential differences between Sarunic (above) and the matter now before me. Sarunic involved three fish cages, whereas Sea Marine Holdings Pty Ltd is guilty of an offence in relation to each of the four fish cages. Secondly, Sarunic did not move the cages for at least a week after the deadline whereas Sea Marine Holdings moved the cages in accordance with the request, on or about 30 April 1999, even though there was no advantage to be gained in moving. I have taken those differences into account in determining penalty. I have taken into account the background to these offences. I must also have regard in determining penalty, to the need to deter others in the community from proceeding to perform an act or undertake an activity, without the required authorisation. The objects of the Development Act are "to provide for the proper, orderly and efficient planning and development within the State" (S3). There is good reason for requiring that proposed development be assessed and authorised, in the context of certain, specified criteria. The Court, in imposing penalties for breaches of the Development Act, must be seen to be promoting the observance of the law relating to development.

8. I would, therefore, impose a penalty on the company by way of a single fine, calculated at $2,500 per cage. The defendant company will be convicted and a single penalty imposed, by way of a fine in the amount of $10,000, on all 4 counts.

9. I incorporate into these reasons the general comments I made in Sea Marine Holdings, with respect to the charges against the individual directors of that company.

10. I am informed that Hagen Heinz Stehr AO who is perhaps in his late sixties or early seventies, is mortified by this event. He is an Officer of the Order of Australia, which award was bestowed upon him for his services to the fishing community, particularly in relation to training. Through his efforts over 15 years, national training councils and the fisheries learning institution, known as the Fisheries Academy, have been established. He is well respected within the community. Mr Hagen Heinz Stehr and his board, like Mr Ronald Harry Forster, relied heavily upon the advice of the Tuna Boat Owners Association who in turn had relied on the (incorrect) understandings it had received from PIRSA.

11. Marcus Anthony Stehr is a son of Hagen Heinz Stehr. He is 36 years of age. It was submitted that while he is a director of the company and therefore has a legal responsibility for the affairs of the company, he is not, in a practical sense, responsible for the company's operations. The business is co-ordinated by an accountant who is on the board of the company. He is a qualified boat captain, having been involved with boats and the fishing industry since he left school, now involved in the daily operation of the tuna farms. The responsibility for the company's direction, in practice, is not with him but with his father and perhaps one other member of the board. I am satisfied that he is unlikely to offend against the Development Act in this way, again.

12. In deciding the appropriate course in this matter, I have had regard to this Court's decision in Sarunic (above), taking into account the differences between the facts and circumstances in that matter and this matter. The offence is not trifling. However, having regard to the facts, I am of the view that extenuating circumstances exist with respect to Marcus Anthony Stehr's role in practice, in the management and operation of the company, sufficient for me to exercise my discretion under S16 of the Criminal Law (Sentencing) Act 1988, in relation to the defendant, Marcus Anthony Stehr.

13. Having regard to all relevant matters, as I am required to do by Section 10 of the Criminal Law (Sentencing) Act, I would convict Hagen Heinz Stehr and impose a single penalty by way of a fine in the amount of $2,000 on all counts, that amount having been calculated at $500 per cage. I would impose a penalty on Marcus Anthony Stehr without conviction, in the amount of $400, calculated at $100 for each of the tuna cages.

14. The orders of the Court are as follows:

1. The defendant Australian Tuna Fisheries Pty Ltd is convicted and fined in the amount of $10,000 on all counts, plus $112 criminal compensation levy.

2. The defendant Hagen Heinz Stehr is convicted and fined in the amount of $2,000 on all counts, plus $112 criminal compensation levy.

3. The defendant Marcus Anthony Stehr is fined without conviction in the amount of $400 on all counts.