Bendikov & Hoklas v Parkes
[2008] SASC 248
•17 September 2008
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BENDIKOV & HOKLAS v PARKES
[2008] SASC 248
Judgment of The Honourable Justice White
17 September 2008
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
PRIMARY INDUSTRY - FISH - OFFENCES
Appellants convicted of five offences under the Fisheries Act 1982 (SA) arising out of a single fishing expedition for abalone - each appeallant fined $2,300 for these offences - an additional penalty, pursuant to s 66 of the Act, of $12,837.05 was imposed on each appellant - an order for the forfeiture of the equipment used in the offending was made - whether the fines were excessive - whether the magistrate failed to give the appellants credit for their guilty pleas - whether the fines involved double punishment for the elements of the appellants' conduct which were common to more than one offence - whether the magistrate erred in the manner of calculation of the additional penalty - whether the magistrate erred in ordering the forfeiture of the equipment used in the offending.
Held: the magistrate erred in sentencing - the magistrate failed to take account of the appellants' guilty pleas - the sentences imposed by the magistrate for three of the offences involved double punishment - the magistrate erred in his manner of calculation of the additional penalty - the magistrate did not have regard to the effect the additional penalty would have on the appellants when fixing the fines - appeal allowed - fines set aside - appellant resentenced - fines of $2,095 imposed on each appellant - additional penalty of $1,000 imposed - in all other respects the appeal was dismissed.
Fisheries Act 1982 (SA) s5, s28, s34, s41, s42, s44, s54, s66; Criminal Law (Sentencing) Act 1988 (SA) s10, s16, s17, s20, referred to.
Pearce v The Queen (1998) 194 CLR 610; Strachan v Brown (2000) 9 Tas R 291; Hemming v Perkins (1999) 74 SASR 307; R v Shannon (1979) 21 SASR 442; R v Slater (1984) 36 SASR 524; R v Place (2002) 81 SASR 395; R v Harris & Simmonds (1992) 59 SASR 300; Attorney-General v Tichy (1982) 30 SASR 84; Hemming v Droulias (2000) 206 LSJS 389; R v Clarke [2008] SASC 173, applied.
Hemming v Mundy (2001) 213 LSJS 453, discussed.
Plunkett v Lewis (2007) 251 LSJS 408, considered.
BENDIKOV & HOKLAS v PARKES
[2008] SASC 248Magistrates Appeal
WHITE J: On 22 August 2007 the two appellants went fishing for abalone off the Little Dip Conservation Park near Robe. They were neither licensed to fish for abalone[1] nor registered as fish processors.[2] This meant that the maximum number of abalone which they could take, and have in their possession, was 10.[3] Despite this the appellants took, and had in their possession, 181 black lip abalone and three green lip abalone.
[1] Fisheries Act 1982 (SA) s 34(1)(a); Fisheries Management (Abalone Fisheries) Regulations 2006 r 5.
[2] Fisheries Act 1982 (SA) s 54.
[3] Fisheries Act 1982 (SA) ss 41 and 44(2)(a); Fisheries (General) Regulations 2000 rr 5 and 7(3) and Schedules 1 and 8.
The appellants pleaded guilty to five offences arising from their conduct on 22 August 2007. Upon those pleas, a sixth count was withdrawn.
The offences to which the appellants pleaded guilty were, Count Two, having in their possession or control abalone which had been taken in contravention of the Fisheries Act 1982 (SA)[4] (maximum penalty a fine of $8,000); Count Three, having in their possession 30 black lip abalone which were less than the prescribed size[5] (maximum penalty a fine of $8,000); Count Four, engaging in a fishing activity of a prescribed class by taking more than 10 abalone[6] (maximum penalty a fine of $2,000); Count Five, removing the shells from the abalone before bringing them to shore[7] (maximum penalty a fine of $2,500); and Count Six, taking abalone without having attached to their persons an accurate device suitable for measuring abalone[8] (maximum penalty a fine of $2,500). Count One, which alleged that the appellants’ abalone fishing had been for a commercial purpose, was withdrawn.
[4] Contrary to the Fisheries Act 1982 (SA) s 44(2)(a); Fisheries (General) Regulations 2000 rr 7(2), 7(3) and Schedule 8.
[5] Contrary to the Fisheries Act 1982 (SA) s 44(2)(b); r 7(1), of the Fisheries (General) Regulations 2000.
[6] Contrary to the Fisheries Act 1982 (SA) s 41; r 5 and Schedule 1 to the Fisheries (General) Regulations 2000.
[7] Contrary to r 19(2) of the Fisheries (General) Regulations 2000.
[8] Contrary to r 19(3) of the Fisheries (General) Regulations 2000.
The magistrate accepted that each of the appellants was engaged in a joint enterprise and considered their culpability to be indistinguishable. He imposed the same penalty on each. The magistrate entered convictions, imposed fines of $800 on each of Counts Two and Three, a fine of $200 on Count Four and fines of $250 on each of Counts Five and Six. The total of the fines imposed on each appellant was therefore $2,300. Then, acting under s 66 of the Fisheries Act, the magistrate imposed an additional penalty on each of the appellants of $12,837.05, that amount being five times the wholesale value of the abalone which they had taken. Finally, the magistrate ordered the forfeiture of the diving equipment used by the appellants in taking the abalone, and of the abalone itself.
The grounds of appeal complain, in various ways, that the penalties imposed on the appellants were excessive. In addition, the appellants contend that the magistrate failed to give them credit for their pleas of guilty and their cooperation with the prosecuting authorities; that the magistrate erred in the manner of calculation of the additional penalty and, in the first appellant’s case, that the magistrate failed to give sufficient weight to the fact that the equipment which he ordered to be forfeited was owned by a third party.
Circumstances of the Offending
At the time of the offending the appellants were both 18 years old. They drove from Adelaide to the Little Dip Conservation Park, a remote location on the South Australian coastline. They launched a boat and fished for about three hours. The first appellant did the diving with the second appellant remaining in the boat, assisting in various ways, including by emptying the catch bags handed to him and by shucking some of the abalone. They were apprehended when they brought the boat to shore.
On a previous occasion, the first appellant had taken a small amount of abalone from the same site. At that time, he had seen other abalone in the area. Some family members suggested that he should return to collect abalone for them as well as for himself.
The magistrate accepted that the appellants were taking the abalone for their own use and that of their friends and relatives, and not for any commercial purpose. Although initially sceptical, the magistrate also accepted that each of the appellants was unaware of the catch and size limits, and other prescriptions, relating to the taking of abalone.
Errors in the Magistrate’s Approach to Sentence
Double Punishment for Common Elements of the Offences
All of the offences committed by the appellants occurred in a single course of conduct on 22 August 2007. Different aspects of that conduct comprised the separate offences but, as is often the case, some aspects were common to more than one offence. Counts Two, Three and Four each relied on conduct which formed part of, or was very closely related to, conduct forming part of another offence.
It is convenient to start with Count Four. This Count alleged that the appellants had engaged in an unlawful fishing activity. The particulars for this Count indicated that it was the appellants’ possession or control of the abalone on 22 August 2007 which was relied upon for the offence. However, it was common ground that it was the “taking” of more than 10 abalone[9] which constituted this offence. There is a distinction between the taking of abalone from the location to which they are attached, on the one hand, and the later possession or control of the abalone once taken on the other. The word “take” is defined in s 5(1) of the Fisheries Act to mean:
take in relation to fish means catch, take or obtain fish (whether alive or dead) from any waters or kill or destroy fish in any waters;
[9] Schedule 1, Para 67(2) of the Fisheries (General) Regulations 2000.
This suggests that the conduct involved in taking fish continues until the fish is removed from the sea altogether.
The distinction between taking and possessing is made expressly in s 44(2)(a), which was the subject of Count Two. Section 44(2)(a) provides that, subject to s 44 itself, if a person sells or purchases, or has possession or control of fish taken in contravention of the Act or a corresponding law, the person is guilty of an offence. Thus, proof that the fish are taken in contravention of the Act and proof that a person is in possession of the fish are separate elements of the offence. In the present case, Count Two alleged that a contravention of s 44(2)(a) had occurred because the appellants had in their joint possession or control 181 black lip abalone and three green lip abalone, which had been taken in contravention of the Fisheries Act. These were the same abalone which were the subject of Count Four.
The conduct comprising the offence alleged in Count Three was the appellants’ possession or control of 30 undersized abalone.[10] That is, the prosecution alleged the same possession and control which had been relied upon for Count Two but, in relation to the 30 undersized abalone, alleged a different reason for that possession being unlawful.
[10] Regulation 7(1) of the Fisheries (General) Regulations 2000.
Although there is a clear distinction between the taking and possession of abalone, in the circumstances of the appellants’ offences, that distinction is quite fine. It could be said that as soon as the first appellant “took” the abalone (in the sense of removing them from their position on the reef or sea floor) they were also in his possession or control. To that extent, there was an overlap in the conduct comprising each offence. Because the two appellants were engaged in a joint enterprise, the conduct comprising the taking and possession by the first appellant also comprised the second appellant’s taking and possession. This was not a case of one offender having taken the abalone and the other later being in possession of them. In the circumstances of this case, the conduct involved in the taking, on the one hand, and the conduct involved in the possession or control of the abalone on the other, was seamless and accordingly had a substantial amount of commonality.
The different elements of the offences charged in Counts Two, Three and Four meant that a plea of double jeopardy or a plea in bar was not available once the appellants were convicted of one offence.[11] However, in fixing appropriate sentences, it was necessary for the magistrate to take account of the elements of each offence which were common, so as to ensure that the appellants were not punished more than once for the same conduct. The reasons of McHugh, Hayne and Callinan JJ in Pearce v The Queen[12] make that plain:
To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.
[11] Strachan v Brown [2000] TASSC 142; (2000) 9 Tas R 291.
[12] [1998] HCA 57 at [40]; (1998) 194 CLR 610 at 623.
In the present case, the magistrate did not refer to this important sentencing principle at all. In addition, there is a feature of the sentences which suggests that the sentences imposed by the magistrate involved double punishment for the common elements of Counts Two, Three and Four. That is the fact that each of the fines imposed by the magistrate is exactly 10 per cent of the applicable maximum fine. If the magistrate considered that a fine of 10 per cent of the maximum was appropriate for Count Two, then it is difficult to see how he could have reached the same conclusion with respect to Count Three, bearing in mind that the physical act of possession involved in Count Three had already been punished in the fine imposed on Count Two. The very close inter-relationship between the conduct involved in Count Four and the conduct involved in Count Two suggests that the same proportional reduction would not have been appropriate for the latter offence. The fines imposed cannot be explained by a suggestion that the magistrate reduced all fines to a uniform level so as to take account of the overall culpability of the appellants. In the first place, the magistrate has not explained the fines in that way and, in any event, such an approach is inconsistent with that required by law, as stated in Pearce v The Queen:
A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.[13]
I am satisfied that the sentences imposed by the magistrate were reached in error because they involve double punishment for the common and overlapping elements of the offences alleged in Counts Two, Three and Four.
[13] Ibid at [45]; 624, per McHugh, Hayne and Callinan JJ.
Taking Account of the Additional Penalty
As noted earlier, acting under s 66 of the Fisheries Act, the magistrate imposed an additional penalty on each of the appellants of $12,837.05.
Section 66 of the Fisheries Act provides as follows:
66—Additional penalty based on value of fish taken unlawfully
(1)Where a person is convicted of an offence against this Act involving fish taken in contravention of this Act, the court must, in addition to imposing any other penalty prescribed by this Act, impose a penalty equal to—
(a)five times the amount determined by the convicting court to be the wholesale value of the fish at the time at which the offence was committed; or
(b) $30 000,
whichever is the lesser amount.
(2)For the purposes of subsection (1), a fish taken in contravention of this Act is be taken to have a wholesale value equivalent to that of a fish of the same species taken not in contravention of this Act.
The parties agreed before the magistrate that the wholesale value of all the abalone taken by the appellants was $2,567.41. The parties also agreed that five times that amount was $12,837.05. Before imposing the fines for the individual offences the magistrate said:
I remind myself that I am not to adjust the penalties that I think fit and appropriate for the individual offences by reason of the aggregated consequences upon the additional penalty. You should be punished for the original offending strictly in accordance with the offending itself and [I] disregard the, as I say, the added additional penalty in terms of impact upon you.
That passage makes it clear enough that the magistrate fixed the individual fines without regard to the effect which the additional penalty required by s 66 would have upon the appellants. It seems that in fixing the individual fines without regard to the effect of the imposition of the additional penalty, the magistrate was purporting to apply Hemming v Mundy[14] to which he had been referred by counsel for the prosecution.
[14] [2001] SASC 105; (2001) 213 LSJS 453.
In Hemming v Mundy, Martin J considered a prosecution appeal against a magistrate’s decision not to record convictions for offences against the Fisheries Act and, in turn, not to impose an additional penalty fixed by s 66. Martin J considered the inter-relationship between ss 16 and 20 of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA). Section 16 provides:
16 – Imposition of penalty without conviction
Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion—
(a)that the defendant is unlikely to commit such an offence again; and
(b)that, having regard to—
(i)the character, antecedents, age or physical or mental condition of the defendant; or
(ii)the fact that the offence was trifling; or
(iii)any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.
and s 20 provides:
20—This Division does not affect mandatory sentences
Nothing in this Division—
(a)affects the sentence to be imposed by a court for murder or treason; or
(b)derogates from a provision of a special Act that expressly prohibits the reduction, mitigation or substitution of penalties or sentences.
In relation to the inter-relationship between these provisions, Martin J said:
The first question to be asked is whether s 20 prevents the operation of s 16. If the answer to that question is in the negative, the court must then consider the penalty that it proposes to impose for the offence of which the person has been found guilty. The penalty the Court “proposes” to impose for that offence is the penalty fixed within the constraints of the maximum penalty prescribed for that particular offence. The possibility of a penalty additional to that prescribed for the offence is irrelevant in determining the penalty the Court “proposes” to impose for the offence, regardless of whether the additional penalty must be imposed by force of legislation or is an additional penalty that the court imposes by way of discretion.[15] (emphasis added)
[15] Ibid at [29] 459.
The respondent’s submissions on appeal fastened upon the words emphasised. It was submitted that they were authority for the proposition that, for all purposes, the prospect of an additional penalty under s 66 is immaterial when the Court determines the penalty for an individual offence. In my respectful opinion, this submission involves a misunderstanding of the reasons in Hemming v Mundy. As I understand those reasons, Martin J was indicating only that the penalty to be considered, when the Court is considering whether good reason exists under s 16 for not recording a conviction, is that penalty which the Court considers appropriate for the particular offence. The Court is not to consider at that stage any additional penalty which must be imposed by force of law, or which may be imposed in the discretion of the Court.
The inference which the respondent contends should be drawn from the quoted paragraph in Hemming v Mundy is directly contradicted by the reasons of Martin J in the earlier decision of Hemming v Perkins.[16] In that case, the question of whether a penalty for an individual offence was to be fixed without regard to the prospect of an additional penalty under s 66 being imposed was directly addressed by Martin J. His Honour concluded that:
a sentencing court is required to take into account the additional penalty calculated in accordance with s 66(1) of the Act in arriving at a decision as to the appropriate penalty to be imposed for the particular offence of which the offender has been convicted. This requires the Court, in the usual way, to address the relevant principles of sentencing.[17]
[16] [1999] SASC 212 (1999) 74 SASR 307.
[17] Ibid at [38]; 316.
Earlier in Hemming v Perkins Martin J held:
The legislature has not specifically indicated an intention that the additional penalty should be ignored when fixing the penalty under the principal section. It might be argued that by providing for a penalty to be imposed "in addition to imposing any other penalty prescribed by this Act", it is implicit that Parliament intended the additional penalty to be ignored when fixing the amount of the fine under the principal section. Such an interpretation obviously has the potential to result in total penalties that are not merely harsh, but are out of all proportion to the culpability of the offender. The principles of interpretation require that an interpretation with those consequences should not be preferred unless Parliament has directly or by clear and necessary implication declared its intention to that effect. ...
In determining the penalty to be imposed for the breaches of the principal provisions of the Act, the Court is required to have regard to s 10 of the Sentencing Act. That section directs the Court's attention to a number of specific matters and, finally, to "any other relevant matter". The amount payable by way of additional penalty is part of the total penalty and is clearly a "relevant matter". Sentencing Courts regularly take into account other types of additional punishment suffered by an offender such as adverse publicity, loss of professional standing and loss of employment as factors which entitle the offender to a degree of mitigation of the penalty imposed under the principal section.[18]
It is not to be supposed, in my opinion, that Martin J intended in Hemming v Mundy to resile altogether from the considered conclusion which he had reached on this topic two years earlier in Hemming v Perkins.
[18] Ibid at [27]– [28]; 313-314.
In my respectful opinion, the analysis of Martin J in Hemming v Perkins is persuasive and ought to be followed. I note that Sulan J followed Hemming v Perkins in Plunkett v Lewis.[19]Accordingly, in my respectful opinion, the magistrate was in error in failing to have regard to the additional penalty to be imposed under s 66 when fixing the penalties for the individual offences.
[19] [2007] SASC 397 at [26]-[28]; (2007) 251 LSJS 408 at 412.
Reduction on Account of Guilty Pleas
The magistrate did not indicate that any reduction in sentence was given to the appellants on account of their guilty pleas. This Court has emphasised on many occasions the appropriateness of a reduction in the sentence which would otherwise have been fixed when a defendant pleads guilty.[20] Such pleas have a utilitarian value and are also often an expression of the defendant’s contrition which, in itself, is an indicator of a favourable rehabilitation. It is desirable that the sentencing judge or magistrate state the amount of reduction allowed.[21] The fact that the magistrate did not mention a reduction of sentence on account of the guilty pleas suggests that this was a matter which was overlooked. This impression is confirmed when regard is had to the fact that the magistrate adjourned the sentencing for the purposes of considering sentence and preparation of his sentencing remarks.
[20] R v Shannon (1979) 21 SASR 442; R v Slater (1984) 36 SASR 524; R v Place [2002] SASC 101; (2002) 81 SASR 395. See also the statutory requirement in the Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(g).
[21] R v Harris & Simmonds (1992) 59 SASR 300.
I am satisfied that this is a further error in the magistrate’s sentence.
These conclusions make it unnecessary for me to consider the remaining submissions of the appellants’ counsel concerning errors by the magistrate. They indicate that the appeal should be allowed and the appellants re-sentenced.
Further Matters Relevant to Re-sentence
As indicated above, both appellants were aged 18 at the time of the offending. The first appellant has since moved to Queensland, where he is establishing his own business as a computer technician. At the time of sentencing before the magistrate, he was earning $300 per week after tax. His residence in Queensland indicates that an order for community service is not an appropriate sentencing option.
The second appellant is working as a landscape gardener, earning between $400-$500 per week after tax. He had never previously engaged in scuba diving. Neither appellant has any previous criminal convictions.
It is difficult not to feel some scepticism, as did the magistrate, about the appellants’ claim that at the time of the offending, they were completely unaware of the restrictions applicable to abalone fishing. However, that claim was accepted by the magistrate and it was not suggested that this Court should take any different view. This means that the appellants should be sentenced on the basis that they were not intentionally engaging in wrongful conduct, ie, knowing at the time of the wrongfulness of their conduct.
Similarly, I accept that the appellants are to be sentenced on the basis that the offending did not have any commercial element.
Deterrence, both personal and general, is an important consideration in the fixing of an appropriate sentence. Abalone is a valuable resource. Stocks of abalone are easily depleted and can take generations to be replenished. Only 35 people are licensed to fish for abalone in this State. Their livelihoods and the survival of the abalone species depend upon the catches of recreational fisherman being limited. As the magistrate noted, the taking of undersized abalone is particularly serious because the removal of juvenile fish has an impact on the long term survival of the species.
Illegal abalone fishing is difficult to detect. It can occur at many isolated locations on South Australia’s lengthy coastline. Further, as the offences of the appellants indicate, it is possible for quite large numbers of abalone to be collected and taken within relatively short periods of time. I also agree with the magistrate that the requirement that abalone not be shelled before being brought to shore is an important regulatory requirement in the supervision of the fishing of abalone.
These considerations all indicate that when offences are detected, the deterrent aspect of sentencing should be prominent.
Re-sentence
I have already referred to the need to avoid punishing the appellants twice for the one piece of conduct which forms part of more than one offence. In addition, their sentencing should take account of the overall criminality of their conduct. In this respect, what was said by Wells J in Attorney‑General v Tichy[22] remains pertinent:
…what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct.
[22] (1982) 30 SASR 84 at 92-93.
In addition to the matters already mentioned, I will take account of the fact that the appellants face the imposition of at least some additional penalty. Having regard to the appellants’ pleas of guilty and their contrition, I have reduced each of the fines which I would otherwise have imposed by 25 per cent.
I propose to commence with Count Four, ie, the offence of taking more than 10 abalone. That was the offence which initiated the course of offending on 22 August 2007. In my opinion, fines of $375 are appropriate for this offence. This is more than those imposed by the magistrate, but reflects the seriousness of the initial offence. The offence alleged in Count Two, namely, the offence of possession of abalone taken in contravention of the Act was a consequence of the appellants retaining in their possession out of the water the same abalone which was the subject of Count Four. I impose fines of $900 for this offence.
Although the possession of undersized abalone is a serious offence, the appellants have already been penalised for the element of possession. It is the additional feature that the abalone was under size which is relevant. I fix fines of $420 for each of those offences. Finally, in relation to each of Counts Five and Six, I impose fines of $200. The total of these fines for each appellant is $2,095.
The Additional Penalty
I turn to consider the additional penalty required by s 66. Counsel for the appellant made two submissions concerning the additional penalty: one concerning the manner of calculation of the penalty, and one concerning its reduction.
Manner of Calculation of the Additional Penalty
As noted earlier, before the magistrate, the parties agreed that the wholesale value of the abalone was $2,567.41 and that five times that amount was $12,837.05. That was the amount of the additional penalty imposed by the magistrate.
On appeal, counsel for the appellants argued that the amount of the additional penalty had been incorrectly calculated because it included the value of the abalone which the appellants had been entitled lawfully to have in their possession. Counsel’s submissions assumed that the appellants were entitled to have 25 abalone in their possession. As I understand it, the number 25 was derived from s 44(4) of the Fisheries Act and reg 7(3) of the Fisheries (General) Regulations 2000. With respect, I consider that counsel’s assumption is mistaken. The effect of s 44(4) and reg 7(3) is not to fix a maximum number of abalone which a person may lawfully have in their possession. Their effect instead is to indicate, amongst other things, that an offence of unlawful possession is established on proof that a person has more than 25 abalone in their possession, unless the defendant makes out the defence available under s 44(3). In other words, the number 25 is an integer in a statutory provision concerning means of proof of an offence, and not a specification of the number of abalone which may be possessed lawfully.
The maximum number of abalone which the appellants were entitled to have in their possession was 10, this being the effect of s 44(2)(a) of the Fisheries Act and Schedule One of the Fisheries (General) Regulations.
Section 66 provides that the additional penalty is to be determined by reference to the wholesale value of the fish taken in contravention of the Act. This makes it necessary to identify the value of the fish taken in contravention of the Act. Is that value the value of the total number of fish taken, or the value of the sub-total derived by deducting the number which could be taken lawfully?
Section 41 of the Fisheries Act provides that a person must not engage in a fishing activity of a prescribed class. Regulation 5 of the Fisheries (General) Regulations identifies the classes of fishing activities described in Schedule 1 as fishing activities of a prescribed class for the purposes of s 41. Paragraph 67 of Schedule 1 provides as follows:
67(1) The taking by an unlicensed person, in the waters specified in column 1 of the table below, of fish of the class specified in column 2 from a boat from which the quantity specified in column 3 has already been taken by unlicensed persons on the same day.
(2) The taking by an unlicensed person in any 1 day, in the waters specified in column 1 of the table below, of more fish of the class specified in column 2 than the quantity specified in column 4.
The table which follows in Schedule 1 specifies an individual limit of five abalone per day and a boat limit of 10 per day. In effect, para 67(1) of Schedule 1 makes the taking of more than the boat limit of 10 abalone unlawful (providing that there are at least two people in the boat). It is the conduct of taking more abalone, when already 10 have been taken, which is made unlawful. In my opinion, that means that for the purposes of s 66, the number of abalone taken which were lawfully taken are to be ignored when determining the number taken in contravention of the Fisheries Act. I note that in Hemming v Mundy, Martin J proceeded, without discussion, on the basis that the additional penalty under s 66 is to be calculated by reference to the value of fish taken in excess of the lawful entitlement.[23]
[23] [2001] SASC 105 at [11]; (2001) 213 LSJS 453 at 455.
There is a difficulty on this appeal in ascribing a value to the 10 abalone which the appellants were entitled to have in their possession. Counsels’ submissions did not address this point. One could infer, on a pro rata basis, that their value was approximately $140 and calculate the reduction on that basis. That is not entirely satisfactory. However, as I am satisfied that there should be a reduction of the amount calculated under s 66, it is not necessary to achieve a precise calculation.
Reduction in the Amount of the Additional Penalty
Although s 66(1) is expressed in mandatory terms, the general sentencing powers of the Court under the CLSA, including the power under s 17 to reduce a penalty below a prescribed minimum, are available.[24] Counsel submitted that a reduction was appropriate in this case. Counsel emphasised the youth of the appellants, their good records, the absence of any wrongful intention in their offending, and the crushing effect which the imposition of an additional penalty would have on them.
[24] Hemming v Perkins [1999] SASC 212; (1999) 74 SASR 307; Hemming v Droulias [2000] SASC 33 at [40]; (2000) 206 LSJS 389 at 397.
In considering whether these matters amount to “good reason” for reducing the additional penalty required by s 66, regard must also be had to the purpose of the additional penalty. One purpose is to establish a direct link between the quantity and value of the fish unlawfully taken on the one hand, and the penalty imposed on the other. In this way, the deterrent effect of the penalty is emphasised. That is an important consideration, but, in my opinion, it is less important in a case in which the offenders were ignorant of the wrongfulness of their conduct. Deterrence continues as an important element of the sentence in those circumstances but personal deterrence is a less important consideration for an offender who did not intend to engage in unlawful conduct.[25]
[25] Cf R v Clarke [2008] SASC 173 at [27]-[36].
I am satisfied that the matters emphasised by counsel do indicate the existence of good reason for reduction of the additional penalty. The amount of the reduction is very much a matter of judgment. In my opinion, a reduction to the sum of $1,000 in each case is appropriate. Such a reduction will preserve the deterrent effect sought to be achieved by the imposition of the additional penalty but at the same time recognise the extenuating circumstances which exist in the appellants’ case.
Forfeiture
The magistrate ordered the forfeiture of the equipment used in the offending. It was said that this equipment was valued at over $1,000. The principal submission put against the order for forfeiture being made was that the equipment in question, which had been supplied by the first appellant, belonged to the first appellant’s brother.
The principles relevant to the exercise of the discretions to order or confirm forfeiture of equipment under s 28(9) of the Fisheries Act were reviewed by Bleby J in Hemming v Droulias.[26] It is not necessary to repeat them.
[26] [2000] SASC 33; (2000) 206 LSJS 389.
Like the magistrate, I consider the prospect of forfeiture of equipment used in illegal fishing to be particularly important. It brings home to offenders and to those who may be minded to commit such offences, in a very practical way, the adverse consequences of such offending. In many respects it is a more powerful deterrent than a fine. I am not satisfied that counsel’s submissions demonstrated any error in approach by the magistrate to the question of forfeiture or in his decision concerning forfeiture. Although the discretion must be exercised afresh in the re-sentencing, I reach the same conclusion as did the magistrate. The fact that the first appellant was using borrowed equipment does not indicate that forfeiture is inappropriate. Acting under s 28 of the Fisheries Act, I would confirm the forfeiture of the equipment listed on the Complaint.
Summary
For the reasons given above, I allow the appeal by each appellant. I set aside the fines imposed by the magistrate and the order for the additional penalty imposed by the magistrate. In place of those orders, I impose fines on each of the appellants of $375, $900, and $420 for each of Counts Two, Three and Four respectively, and fines of $200 for each of Counts Five and Six. I reduce the amount of the additional penalty applicable under s 66 to $1,000 and order each of the appellants to pay those amounts. In all other respects, the appeals against the magistrate’s orders are dismissed.
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