Jersey Unreported Judgments

[2010]JRC217B

ROYAL COURT

(Samedi Division)

3^rd December 2010

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Tibbo and Marett-Crosby.

The Attorney General

-v-

Michael Arthur Michieli

Martin Clark

Sentencing by the Inferior Number of the Royal Court, following guilty pleas to the following charges:

Michael Arthur Michieli

1 count of:	Contravention of a regulation made under Article 2 of the Sea Fisheries (Jersey) Law 1994, contrary to Article 4 of the said law (Count 3).
2 counts of:	Failure to comply with a condition attached to a fishing licence, contrary to Article 12(7) of the Sea Fisheries (Jersey) Law 1994 (Counts 4 and 5).

Age:  50.

Plea: Guilty.

Details of Offence:

Under Article 12(7) of the Sea Fisheries (Jersey) Law 1994, Michieli's trawler, L'Ecume II was subject to a licence condition not to fish within Jersey's three mile limit.  This condition was breached on two separate occasions. 

On a separate occasion, Michieli failed to complete a Log Book entry after his vessel had been at sea, in the time and manner prescribed by paragraph 1(1) of Schedule 2 of the Sea Fisheries (Log Books and Landing Declarations)(Jersey) Regulations 2007.

Michiele was assisted in the illegal fishing charged on one of the occasions by his crewman, Clark. 

In the attempt to avoid detection the vessel had operated without lights in the shipping lanes, a dangerous practice which might have been charged in its own right. 

Not guilty pleas to Counts 1 and 2 were accepted by the Prosecution. 

Details of Mitigation:

Guilty plea; grievance re change of regulation impacting his livelihood; character references from local businesses.  Lifelong fisherman and respected member of fishing community.  Contributions to Jersey fishing industry.  Regarding the log book offence (Count 3) Michieli thought he only had to fill the log book in if fishing. 

Previous Convictions:

Convicted on five occasions for similar offences to a total of ten counts. 

Conclusions:

Count 3:	£750 fine or 1 month's imprisonment in default.
Count 4:	£8,000 fine or 8 months' imprisonment, in default, consecutive.
Count 5:	£8,000 fine or 8 months' imprisonment, in default, consecutive.

Plus costs of £2,000.

Total:  £16,750 fine plus £2,000 costs. 

Sentence and Observations of Court:

The Court highlighted the defendants' selfish behaviour and reminded them that fishing regulations are in place to ensure stocks survive for future generations. 

The Court rejected Michieli's submissions relating to changing regulations causing him financial loss.  The Court found Michiele to be deliberate in his actions and indifferent to the regulations. 

Count 3:	£750 fine or 1 month's imprisonment in default.
Count 4:	£8,000 fine or 8 months' imprisonment in default, consecutive.
Count 5:	£8,000 fine or 8 months' imprisonment in default, consecutive.

Plus costs order in the sum of £2,000.

Total:  £16,750 fine plus £2,000 costs making a total of £18,750 and two weeks' in which to pay. 

Martin Clark

1 count of:

Aiding, abetting, counselling or procuring the commission of an offence under the Sea Fisheries (Jersey) Law 1994, contrary to Article 24(3) of the said law, namely aiding, abetting, counselling or procuring a failure to comply with a condition attached to a fishing licence, contrary to Article 12(7) of the Sea Fisheries (Jersey) Law 1994 (Count 6).

Age:  42.

Plea: Guilty.

Details of Offence:

See Michieli above.

Details of Mitigation:

Guilty plea; remorse and apology.  In his capacity as crew member, it was not within his remit to decide where to fish.  He had no financial interest in haul.  Clark's financial position has worsened in recent times.  Clark has no savings and lives in rented accommodation (£750pm). 

Previous Convictions:

Four convictions for five offences including drugs, theft and assault offences. 

Conclusions:

Count 6:

£1,000 fine or 1 month's imprisonment in default.

Sentence and Observations of Court:

The Court highlighted the defendants' selfish behaviour and reminded them that fishing regulations are in place to ensure stocks survive for future generations. 

Accounted for Clark's personal circumstances and noted lesser role as crew member.  Rejected submission that as a crew member Clark should not have faced prosecution.  Crew members have a responsibility to ensure the law is not broken. 

Count 6:

£500 fine or 2 weeks' imprisonment in default.

Ordered to pay by 31^st December 2011. 

S. M. Baker, Esq., Crown Advocate.

Advocate D. S. Steenson for Michieli.

Advocate J. W. R. Bell for Clark.

JUDGMENT

THE DEPUTY BAILIFF:

1.        Mr Michieli, you are charged with 1 count of failing to complete the log book as required by the relevant Sea Fisheries Regulations and 2 counts of failing to comply with conditions attached to your fishing licence.  Mr Clark, you are charged with aiding, abetting, counselling or procuring the commission of the offence committed by Mr Michieli of failing to comply with the condition attached to his fishing licence. 

2.        As has been said by this Court in the case of AG-v-Grandmougin & Ferrantim 2002/81 and repeated by this Court in the case of AG-v-Le Filleul & Barbelenet [2006] JRC 148 the fishing conservation rules are made so as to ensure the fishing stocks survive and are preserved for future generations.  It is the height of selfishness for today's fishermen to put their own financial interests above those of fishermen to come in future generations.  The Court must ensure that the level of fines which it imposes is such that it is understood by fishermen that it is not financially worthwhile to break the fishing conservation regulations.  In that first case it was considered that the conclusions were on the low side and although the fine was not increased in that case, notice was given that it should not be taken as a precedent for future cases and indeed, in the case of Le Filleul and Barbelenet, a fine of £8,000 was imposed on the count which was before the court on that occasion. 

3.        Mr Michieli, on the first reading of the papers the Court thought that the conclusions advanced by the Crown were too low.  We think this was indeed a deliberate breach of the regulations; you may not have liked the regulations; you may indeed think they are unfair but they represent the law and they must be respected.  The track record which you have in UK waters shows you, in the Court's view, to be a man who is indifferent to the fishing regulations of that jurisdiction as well and we were, as I indicated to your counsel, minded to increase the fines which have been moved for by the Crown.  However, we have looked at the references which you have put together and we have taken special note of the fact that this prosecution has been pending for a long time before coming to this Court. 

4.        We are therefore not going to increase the conclusions which have been granted but we do not consider them in any sense to be unfair and we are going to grant the conclusions and you are therefore fined the sum of £750 with 1 month's imprisonment in default on Count 3, £8,000 with a consecutive term of 8 months' imprisonment in default on Count 4, and £8,000 with a consecutive term of 8 months' imprisonment in default on Count 5, and you are ordered to pay £2,000 by way of costs.  We give you two weeks in which to pay. 

5.        I would however like to add in particular, that we reject the submission that has been made by your counsel that there is any mitigation in the change of regulations causing you difficulty or even expense.  That is a feature which exists in relation to many businesses.  Financial services businesses have had to cope with very increased levels of regulation over the last ten years or so.  Those who run homes for the elderly have had similarly to make big changes to the way in which their businesses are run.  The same is true of schools.  The same is true of many, many businesses and it is no different for fishing. The regulations change to meet changing circumstances and they have to be respected and met and you will have heard the exchanges with the Crown and with your counsel in relation to forfeiture provisions and ultimately you should be aware that the Court retains power to ensure that the law is indeed respected. 

6.        You are fined in accordance with the conclusions which have been advanced by the Crown in the sums I have mentioned.  I would also just like to say that we gain the impression from some of the references that you have put in that you are regarded by some as having been singled out unfairly, particularly in relation to the log book offence.  The Court has considered that and we think in the light of what is said by the Crown in its summary, that there is no merit in that assertion.  Jersey is required to produce catch data on the fish caught by local boats in local waters; yours is the only ten metre vessel that exclusively trawls from here, and accounts for the majority of the data which has to be produced and it is inevitable therefore that your boat has come under more scrutiny than most. 

7.        Mr Clark, the Court has taken into account the various circumstances which have been put forward by your counsel and noted the lesser role which you have as a crew member and which is reflected in the conclusions which the Crown has presented to this Court.  The conclusions against you are that there should be a fine of £1,000 as opposed to a fine of £8,000 for Mr Michieli.  That no doubt reflects that as a crew member you did not share in the profits in the same way as Mr Michieli would have expected from illegal fishing.  I wish to deal with the submission which your counsel has made, that as a crew member you should not have been prosecuted, and to reject it.  In the Court's view crew members carry responsibility for ensuring that the law is not broken.  The policing of these fishing regulations is never going to be easy in the sense that fishing boats have a very wide area of sea over which they can carry out their trade and policy requires that crew members know their responsibility and should ensure that they do not commit criminal offences in breach of regulations.  We take into account in particular in this case, that the offence could not have been committed without your participation in it. 

8.        The Court however accepts that you may not, and other crew members may not, have realised that this was the position and for that reason only, we are going to reduce the conclusions and you are therefore fined £500 or 2 weeks' imprisonment in default.  In reducing those conclusions I would like to make it plain that the Court's view is that in future crew members should not be under any such illusions.  It is the responsibility of crew members to ensure that they are not party to offences being committed and, for our part, it is a matter which we would expect the Courts to ensure is respected in the future.  In the light of your personal circumstances we are going to order that the £500 fine should be paid by 31^st December, 2011, the end of next year. 

Authorities

Sea Fisheries (Jersey) Law 1994.

AG-v-Grandmougin & Ferrantim 2002/81.

AG-v-Le Filleul & Barbelenet [2006] JRC 148.