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

1. 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.

2. 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.

3. 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 order to set them aside. 

4. Upon handing down the decision of the Full Court affirming the convictions, the parties agreed to deal with the sentence appeal by written submissions to the Full Court. 

5. Mr Feast contends that the penalty of suspension was manifestly excessive.  Mr Feast contends, and it is accepted, that the gross income over a fishing season of six months is between $500,000 and $550,000 but that after costs Mr Feast’s net income for that period is in the order of $100,000.  Yet, as noted by the Magistrate, the early part of the season is the most profitable.  Therefore a suspension of one month in November could result in lost sale proceeds of anywhere between $50,000 to $200,000.  Mr Feast relies on the following:

   ·Mr Feast’s culpability is in allowing his boat to be used by his solitary crew member to commit the offence.

   ·It has not been proved that Mr Feast was aware that his crew member took and scrubbed the lobster.

   ·Mr Feast testified, and the contrary was not proved, that he instructed his crew members not to take or scrub berried lobsters.

   ·The ecological impact was minimal because only one lobster was taken.

6. In an affidavit sworn on 13 December 2010, Alison Feast, the wife of the respondent, deposed that a contract between a company jointly controlled by her and the respondent to provide services to the South Australian Research and Development Institute by charter of their vessel, the Coral Raider, was terminated on 8 December 2010 at a gross loss of earnings of $14,000.00 per annum.  I have had regard to that material not as fresh evidence on the question of whether the penalty was manifestly excessive but as material available on resentencing were the appeal to be allowed.  I accept that the termination is probably related to the respondent’s conviction but the collateral loss of commercial opportunities with a government department for regulatory offences of this kind is not of substantial weight.  The public expects that government departments will contract with responsible and regulatory compliant entities.

7. The prosecutor emphasises the difficulty in detecting offences of this kind and the importance of deterrence.  But it was not proved as an aggravating factor that Mr Feast knew, or turned a blind eye, to offending of this kind.  This leaves this offence to be dealt with as an isolated failure of what were generally effective measures to ensure compliance with the Act.  In those circumstances the offence is at the lower end of the scale and the suspension for four weeks was therefore manifestly excessive. 

8. Nonetheless the penalty of suspension is the most effective of the penalties available to the Court.  It signifies the importance of the responsibility of the registered owner of a vessel to ensure compliance with the Act and Regulations.  It is difficult to gauge the financial effect of a suspension for a part only of the fishing season because lobster fishing licences are subject to a total allowable catch.  Having regard to the limited nature of the offending in this case, an appropriate period of suspension is one week. 

9. I would set aside the suspension for one month and order instead suspension for one week.  I would affirm the other penalties.  I would order that the suspension take effect from midnight on 2 January 2017.

10. BLUE J:        I agree.

11. STANLEY J:         I agree.