Douglas v State of SA

[2007] SASC 278

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

DOUGLAS v STATE OF SA

[2007] SASC 278

Judgment of The Honourable Justice David

25 July 2007

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - PROBATION ORDERS AND SUSPENSION OF SENTENCE

Criminal law – Magistrates Appeal – fisheries offences – unlawful possession of property – taking and selling abalone without a licence – sentence of imprisonment – fines – whether sentence of imprisonment should have been suspended – 33 years old – no relevant previous convictions – employed – good reason existed to suspend the sentence of imprisonment – appeal allowed – sentence of imprisonment suspended.

Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 38(1); Fisheries Act 1982 (SA) s 44; Summary Offences Act 1953 (SA) s 41(1), referred to.
Dinsdale v The Queen (2000) 202 CLR 321, applied.

DOUGLAS v STATE OF SA
[2007] SASC 278

Magistrates Appeal

DAVID J.

Introduction

1. This is an appeal against a sentence imposed by a magistrate at the Mount Gambier Magistrates Court. The appellant pleaded guilty to 12 offences, contrary to s 44(1), (2)(a) and (2)(b) of the Fisheries Act 1982 (SA) (hereinafter referred to as “the Act”), and one offence of unlawful possession of property, contrary to s 41(1) of the Summary Offences Act 1953 (SA). The appellant was sentenced to 12 months imprisonment with a non-parole period of seven months. He also received fines totalling $1,200. The appellant does not appeal against the length of the sentence imposed or the amount of the fines, but argues that the sentence should have been suspended.

   Facts

2. The appellant was charged with various offences associated with illegally taking and selling abalone on three separate occasions. The appellant and two co‑accused went diving and took abalone from the sea using snorkelling equipment. On each occasion the abalone was then sold from the boot of a car to an undercover police officer. A total of 2,213 backlip abalone were taken, namely:

   ·744 abalone were taken on 21 December 2005, 564 being undersized;

   ·602 abalone were taken on 9 January 2006, 470 being undersized; and

   ·867 abalone were taken on 25 January 2006, 685 being undersized.

   On each occasion, the abalone was taken without the appellant holding the requisite licence. As a result of the three transactions, the appellant was charged with a total of 12 offences contrary to the Act, namely:

   ·three charges of selling fish taken in waters to which the Act applies without a licence (contrary to s 44(1) of the Act);

   ·three charges of selling illegally taken fish (contrary to s 44(2)(a) of the Act);

   ·three charges of possessing illegally taken fish (contrary to s 44(2)(a) of the Act); and

   ·three charges of possessing undersize fish (contrary to s 44(2)(b) of the Act).

   The maximum penalty for each of these offences is $60,000 and/or two years imprisonment.[1]

   [1]    Fisheries Act 1982 (SA) s 44(1) and (2).

3. In addition, the appellant was charged with being in possession of unlawfully obtained property, contrary to s 41(1) of the Summary Offences Act 1953 (SA). This offence related to money which was part of the proceeds of the sale of the abalone. The maximum penalty for this offence is $10,000 or imprisonment for two years.[2]

   [2]    Summary Offences Act 1953 (SA) s 41(1).

   Arguments on Appeal

4. Counsel for the appellant argues that the sentence of imprisonment should have been suspended pursuant to s 38(1) of the Criminal Law (Sentencing) Act 1988 (SA).

5. The decision whether or not to suspend a sentence is discretionary.[3] An appellate court will only interfere with this discretion when the sentencing court has made an error when exercising the discretion.[4] This error may arise in one of four ways, namely:

   ·by considering irrelevant material;

   ·by failing to consider relevant material;

   ·by making a mistake about the facts; or

   ·because the sentence is so obviously incorrect that there must be an error, even though the nature of the error is not apparent.[5]

   [3]    Criminal Law (Sentencing) Act 1988 (SA) s 38.

   [4]    Dinsdale v The Queen (2000) 202 CLR 321, 324-325, 329, 334, 339-340.

   [5]    Dinsdale v The Queen (2000) 202 CLR 321, 325, 329, 334, 340.

6. The appellant argues that the error in this case arises in two ways. Firstly, the magistrate made a mistake about the facts. In the sentencing remarks, the magistrate stated that the appellant was unemployed. However, the appellant argues that he was employed, but on a seasonal basis. The respondent concedes this point.

7. Secondly, the appellant argues that the decision not to suspend the sentence is so clearly wrong that there must be an error in the way the magistrate exercised the discretion whether or not to suspend the sentence. He argues that his personal circumstances create “good reason” to suspend the sentence. At the time of sentencing the appellant was 33 years of age, and in a stable relationship with two children. He has a number of prior convictions, the most recent being in June 2003, but none were for fisheries or dishonesty offences.

   Conclusion

8. In my opinion, there is good reason to suspend the appellant’s sentence. His chances of rehabilitation are good, given that he is employed, is relatively young, has a stable family environment and does not have any relevant prior convictions. The decision not to suspend the sentence of imprisonment is therefore an error in the exercise of the magistrate’s sentencing discretion, allowing this Court to interfere with the sentence imposed.

9. I therefore allow the appeal in relation to suspension of the term of imprisonment, while confirming the balance of the penalties imposed by the sentencing magistrate. Therefore, in relation to counts 5, 6, 7, 9, 10, 11, 12, 13 and 14, pursuant to s 18A of the Criminal Law (Sentencing) Act, the appellant is sentenced to 12 months imprisonment with a non‑parole period of seven months. This sentence of imprisonment is to be suspended upon the appellant entering into a bond in the sum of $500 to be of good behaviour for a period of two years. In relation to counts 8, 12 and 15, the appellant is fined the sum of $400 with respect to each count. In relation to count 19, a conviction will be recorded, but no further penalty will be imposed. The money referred to in count 19 will be forfeited. Finally, in relation to counts 6, 10 and 14, as required by s 66 of the Act, there will be an additional penalty of $9,000, based upon the wholesale value of the unlawfully taken fish.