Dietman v Feast (No 2) - [2016] SASCFC 135

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
DIETMAN v FEAST (NO 2)
[2016] SASCFC 135
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Stanley)
21 December 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - FURTHER APPEAL TO FULL COURT
PRIMARY INDUSTRY - FISH - OFFENCES - TAKING PROHIBITED TYPE OF FISH
PRIMARY INDUSTRY - FISH - OFFENCES - PENALTY
In Dietman v Feast [2016] SASCFC 108, this Court affirmed the respondent’s conviction for two counts of offending contrary to the Fisheries Management Act 2007 (SA) (the Act) for removing the eggs from a southern rock lobster, which is a protected species under the Act.
The appellant was first convicted by a Magistrate. He then appealed the conviction and the sentence imposed to a single Judge of this Court. That Judge set aside the conviction and as a consequence the sentence appeal was not determined.
Upon handing down the decision of the Full Court, the parties agreed that the sentence appeal would be decided on the basis of written submissions to the Full Court.
The magistrate imposed the following penalties:
1. a $3,000 penalty to cover both counts;
2. the mandatory additional penalty under s 110 of the Act of $132.50;
3. one month’s suspension operative from 1 November 2014; and
4. the forfeiture of various items specified by the complainant.
The appellant contends that the sentence is manifestly excessive.
Held per Kourakis CJ (Blue and Stanley JJ agreeing):
1. It was not proved as an aggravating factor that the appellant knew or turned a blind eye to the offending. Thus the offence is at the lower end of the scale of seriousness.
2. Suspension is an effective penalty as it signifies that it is important that the registered owners of vessels comply with the Act and Regulations.
3. Suspension imposed by the Magistrate set aside.
4. The appropriate period of suspension, having regard to the limited offending, is one week.
5. Other penalties imposed by the Magistrate affirmed.
Fisheries Management Act 2007 (SA), referred to.

DIETMAN v FEAST (NO 2)
[2016] SASCFC 135
Full Court: Kourakis CJ, Blue and Stanley JJ

KOURAKIS CJ: The respondent’s conviction on two counts of offending against the Fisheries Management Act 2007 (SA) (the Act) was affirmed by this Court on 27 September 2016 after the convictions were set aside by a single Judge of this Court on an appeal against the Magistrate’s decision.
The Magistrate imposed the following penalties:
1a $3,000 penalty to cover both counts;
2the mandatory additional penalty under s 110 of the Act of $132.50;
3one month’s suspension operative from 1 November 2014 (which was suspended by a single Judge of this Court);
4forfeiture of various items specified in the complaint.
The respondent, Mr Feast, had appealed against that sentence but his appeal was not determined because of the decision of the single Judge that the convictions could not be sustained and his…

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.

Continue reading Dietman v Feast (No 2)

Details

AGLC: Dietman v Feast (No 2) [2016] SASCFC 135
Case: [2016] SASCFC 135
Decision Date: 21 December 2016

CaseChat Overview and Summary

Dietman (the appellant) appealed to the Full Court of the Supreme Court of South Australia against a decision of Kourakis CJ, which had dismissed his appeal against a conviction for taking a prohibited type of fish contrary to the *Fisheries Act 1971* (SA). The appellant had been convicted in the Magistrates Court and subsequently fined.

The Full Court was required to determine whether the Chief Justice had erred in upholding the Magistrate's finding that the appellant had taken a prohibited species of fish. Specifically, the court considered whether the evidence presented at trial was sufficient to establish beyond reasonable doubt that the fish in question was of a prohibited species, and whether the Magistrate had properly applied the relevant provisions of the *Fisheries Act 1971* (SA) and its associated regulations.

The Full Court reasoned that the evidence, including expert testimony regarding the physical characteristics of the fish and its classification, was sufficient to support the conviction. The court applied the principles of statutory interpretation to the *Fisheries Act 1971* (SA) and the relevant regulations, concluding that the Magistrate had correctly identified the prohibited species and that the appellant's actions constituted an offence. The appeal was accordingly dismissed.

Orders