Bendikov & Hoklas v Parkes - [2008] SASC 248

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 248
Magistrates 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Bendikov & Hoklas v Parkes and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] SASC 248
Decision Date: 17 September 2008

CaseChat Overview and Summary

The appeal in Bendikov & Hoklas v Parkes involved the appellants, Bendikov and Hoklas, who were convicted of five offences under the Fisheries Act 1982 (SA) stemming from a single fishing expedition for abalone. Each appellant was fined $2,300 for these offences, and an additional penalty of $12,837.05 was imposed on each appellant pursuant to section 66 of the Act. The court also ordered the forfeiture of the equipment used in the offending. The appellants challenged the excessiveness of the fines, the failure to credit their guilty pleas, the issue of double punishment for elements common to more than one offence, the calculation of the additional penalty, and the forfeiture of the equipment.

The legal issues before the court were 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, and whether the magistrate erred in ordering the forfeiture of the equipment used in the offending. The court found that the magistrate erred in sentencing by failing to take account of the appellants' guilty pleas, that the sentences imposed for three of the offences involved double punishment, and that the magistrate erred in his manner of calculation of the additional penalty. The court also held that the magistrate did not have regard to the effect the additional penalty would have on the appellants when fixing the fines.

The appeal was allowed, the fines were set aside, and the appellants were resentenced. Fines of $2,095 were imposed on each appellant, and an additional penalty of $1,000 was imposed. In all other respects, the appeal was dismissed. The court's decision underscores the importance of proper sentencing considerations, including credit for guilty pleas and avoiding double punishment, as well as the need for accurate calculation of additional penalties.

Orders