Dudley v Department of Primary Industries and Regions (Pirsa) - [2016] SASC 144

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DUDLEY & ORS v DEPARTMENT OF PRIMARY INDUSTRIES AND REGIONS (PIRSA) & ANOR
[2016] SASC 144
Judgment of The Honourable Justice Nicholson
2 September 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
PRIMARY INDUSTRY - FISH - OFFENCES
PRIMARY INDUSTRY - FISH - ABORIGINAL CUSTOMARY RIGHTS
ABORIGINALS - NATIVE TITLE - PROOF AND EVIDENCE
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against conviction and sentence. On 30 December 2011, the five appellants had been fishing near Point Pearce. Two Fisheries officers approached the appellants who were found to be in possession of 370 greenlip abalone, 188 of which were undersized. The appellants were charged, by Information and Summons dated 22 May 2013, with being in possession or control of the abalone, being an aquatic resource of a prescribed class, contrary to section 72(2)(c) of the Fisheries Management Act 2007 (SA). It was the prosecution case that the appellants had engaged in a joint criminal enterprise and were in possession of the abalone for the purpose of illegal sale. At trial, the appellants maintained a defence that the possession of the abalone was not unlawful because they were exercising their native title rights to fish for and acquire abalone.
On 10 September 2015, the Magistrate convicted each of the appellants of the offence charged. Her Honour found that the appellants were members of the Narungga people with native title rights that included taking abalone in the area. However, on the occasion in question, the Magistrate was not satisfied that the appellants did not have the abalone for a commercial purpose and, therefore, was satisfied that any defence available to the appellants pursuant to section 211 of the Native Title Act 1993 (Cth) did not have application in the circumstances.
Following oral submissions and a Conference under section 9C of the Criminal Law (Sentencing) Act 1988 (SA), the appellants were each sentenced, on 2 December 2016, to six months imprisonment. Two of the appellants received suspended sentences, whereas the remaining three appellants were required to serve the sentence forthwith. Each of the appellants were further ordered to pay an additional penalty pursuant to section 110 of the Fisheries Management Act 2007 (SA), to pay costs for the prosecution and the victims of crime levy, as well as being permanently prohibited from fishing for abalone.
Held:
1. Extension of time is granted the appellants to lodge their appeal against conviction and against sentence, in in the cases of Scott O’Loughlin, Robin Wanganeen and Edgar Wanganeen until 29 January 2016 and in the cases of Greg Wanganeen and Phillip Dudley until 16 February 2016.
2. Appeal against conviction by all appellants is dismissed.
3. Appeal against sentence by all appellants is allowed and the sentences imposed by the Magistrate are set aside. The appellants are resentenced.
Fisheries Management Act 2007 (SA) s 3, s 72, s 73; Fisheries Management (General) Regulations) 2007 (SA) Regulation 8, Schedule 2, Schedule 3, Schedule 6; Native Title Act 1993 (Cth) s 211, s 223, s 224; Evidence Act 1995 (Cth) s 78A; Criminal Law (Sentencing) Act 1988 (SA) s 9C, s 13; Magistrates Court Act 1991 (SA) s 42, referred to.
Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR 373; Karpany v Dietman [2013] HCA 47, (2013) 252 CLR 507; Dillon v Davies (1998) 8 Tas R 229, (1988) 145 FLR 111; Mabo v Queensland (No 2) (1992) 175 CLR 1; Mason v Tritton (1994) 34 NSWLR 572; Derschaw v Sutton (1996) 17 WAR 419; Derschaw v Sutton [1997] HCATrans 158; Martin v Department of Transport, Energy and Infrastructure [2010] SASC 141; Fox v Percy [2003] HCA 22, (2003) 214 CLR 118; Golden King (Australia) Pty Ltd v Dietman [2014] SASC 183, (2014) 121 SASR 230; Bendikov & Hoklas v Parkes [2008] SASC 248; Plunkett v Dietman [2010] SASC 359; Dietman v Mackwell, Whetscone & Hird Unreported, Magistrates Court of South Australia, Magistrate Anderson, 7 September 2012; Department of Primary Industries and Resources SA v Dang & Tieu Unreported, Magistrates Court of South Australia, Magistrate Kossiavelos, 26 March 2015; Douglas v The State of South Australia [2007] SASC 278; Phillips v The State of South Australia [2007] SASC 279; Dietman v Karagiannis and Debnam [2015] SAMC 8; R v Nozuhur [2013] SASCFC 81; R v Singh [2011] SASCFC 128, (2011) 111 SASR 219; R v Payne [2004] SASC 160, (2004) 89 SASR 49; Wong v The Queen [2001] HCA 64, (2001) 207 CLR 584, considered.

DUDLEY & ORS v DEPARTMENT OF PRIMARY INDUSTRIES AND REGIONS (PIRSA) & ANOR
[2016] SASC 144
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction

On 10 September 2015, the five appellants (defendants at trial) who are all Aboriginal and members of the Narungga people, were convicted by a Magistrate of the offence of being in possession of an aquatic resource of a prescribed class, contrary to section 72(2)(c) of the Fisheries Management Act 2007 (SA).[1] It was alleged and the Magistrate found proved that the five appellants had been engaged in a joint criminal enterprise with each other and that, pursuant thereto, each was found to be unlawfully in possession of approximately 370 greenlip abalone of which 188 were undersized.
[1] Department for Primary Industries & Regions SA v Dudley & Ors [2015] SAMC 57 (Reasons for Judgment).
On 2 December 2015, the Magistrate sentenced each of the appellants.[2] The penalties imposed were comprised of a number of components including pecuniary penalties and the imposition of a term of imprisonment on each of the appellants. In the cases of Mr Phillip Dudley and Mr Greg Wanganeen their respective terms of imprisonment were suspended. In the cases of Mr Scott O’Loughlin, Mr Edgar Wanganeen and Mr Robin Wanganeen their respective terms of imprisonment were not suspended. The Magistrate also made orders permanently prohibiting each of the appellants from fishing for abalone.
[2] Department of Primary Industries & Resources (Fisheries SA) v Dudley & Ors, Remarks on Penalty, 2 December 2015, MCPIR-13-1093, AMC-15-11187 (Remarks on Penalty).
Each of the appellants has appealed against his conviction and against his respective sentence insofar as a term of imprisonment was imposed and insofar as each was permanently prohibited from fishing for abalone. In addition or in the alternative, Scott O’Loughlin, Edgar Wanganeen and Robin Wanganeen have appealed against the Magistrate’s refusal to suspend their respective terms of imprisonment. There is also a ground of appeal, relied on by all, to the effect that “the penalties imposed were manifestly excessive”.
On 2 December 2015, each of Scott O’Loughlin, Edgar Wanganeen and Robin Wanganeen was granted simple bail pending their anticipated appeals, on usual conditions together with a condition in the following terms:
Upon the outcome of my appeal which leaves any proceeding current, I shall report to the Registrar of the Magistrates Court at Adelaide Magistrates Court within 14 days and obtain a date to have my matter heard by a Magistrate and attend on that date at the nominated court.
The factual basis for the offending relied upon by the prosecution
The basal facts were not seriously in contest at the trial.
On 30 December 2011, all five appellants had been out fishing in a dinghy. They returned to a secluded beach near Point Pearce where two Fisheries Officers had positioned themselves to observe them when returning. The appellants were approached by the two Fisheries Officers. The dinghy was searched and 370 abalone were found in a sack of which 188 were found to be undersize. In total, the catch weighed 43.395 kilograms. The prosecution case at trial was that the five appellants were jointly in possession of a commercial quantity of abalone for the purpose of illegal sale and that many of the abalone were undersize, an aggravating feature of the offending. The Magistrate was satisfied on the evidence before her “that all five [appellants] were jointly engaged in snorkelling for abalone and the abalone and other fish located on the boat were in the possession of all five of the [appellants]”.[3] This finding has not been challenged.
[3] Reasons for Judgment at [14].
The appellants’ defence centred on the contention that their possession of the abalone was not unlawful essentially because, on the occasion in question, they were exercising their native title rights to fish for and acquire the abalone.
The regulatory scheme – the legislative basis for the offence
The appellants were charged with an offence pursuant to section 72(2)(c) of the Fisheries Management Act. The provisions in section 72 that are presently of relevance are in the following terms.
72—Sale, purchase or possession of aquatic resources without authority prohibited
(1)...
(2)Subject to this section, if a person sells or purchases, or has possession or control of—
(a)     ...; or
(b)     ...; or
(c)     an aquatic resource of a prescribed class,
the person is guilty of an offence.
Maximum penalty:
(a)     in the case of a body corporate ...
(b)     in the case of a natural person—
(i)if the offence involves the sale or purchase of fish of a priority species or the possession or control of fish of a priority species for the purposes of sale—$50 000 or imprisonment for 4 years;
(ii)in any other case—$20 000.
(3)In proceedings for an offence against subsection (2)—
(a)     if it is proved that a person had a commercial quantity of an aquatic resource of any species in his or her possession or control, it will be presumed, in the absence of proof to the contrary, that the person had that aquatic resource in his or her possession or control for the purposes of sale;
(b)     ...
(4)...
(5)...
(6)In proceedings for an offence against subsection (2) relating to aquatic resources of a class prescribed for the purposes of that subsection, if it is proved—
(a)     that the defendant was not—
(i)the holder of an authority authorising the taking of aquatic resources of that class; or
(ii)a registered fish processor; and
(b)     that the defendant sold or purchased or had possession or control of more than the prescribed quantity of aquatic resources of that class,
the offence is proved unless the defendant establishes the defence under subsection (5).
In essence, and leaving aside potential defences, for the offence to be made out the prosecution had to prove that the appellants had possession of an aquatic resource of a prescribed class. It is common ground that abalone in the number found in the appellants’ possession is “an aquatic resource of a prescribed class” for the purposes of section 72(c).[4]
[4] See Regulation 8(1)(b) and Schedule 3 of the Fisheries Management (General) Regulations 2007.
In order to come within the more onerous penalty provision in section 72(2)(b)(i),[5] the prosecution had to establish that the offence of possessing an aquatic resource of a prescribed class involved the possession of fish of a priority species for the purposes of sale. It is also common ground that abalone is a “fish of a priority species” for the purposes of paragraph (b)(i) of section 72(2).[6]
[5] Maximum penalty for a natural person being a fine of $50,000 or imprisonment for four years.
[6] See the definition of “fish of a priority species” in section 3(1) of the Fisheries Management Act 2007.
Section 72(3)(a) provides for an evidentiary presumption in favour of the prosecution when an offence against section 72(2) is pursued. If the prosecution establishes that the appellants had in their possession a “commercial quantity” of the “aquatic resource” in question, “it will be presumed, in the absence of proof to the contrary, that [they] had that aquatic resource in [their] possession for the purposes of sale”. In the case of abalone, a quantity of 26 or more abalone is, by regulation, a “commercial quantity”.[7]
[7] See Schedule 3 of the Fisheries Management (General) Regulations 2007.
To this point, it can be seen that the offence under section 72(2)(c) had been established, given the undisputed fact that the five appellants were found in possession of abalone, an aquatic resource of a prescribed class, in a quantity greater than the recreational fishing limit for abalone.[8] However, in order to be liable with respect to the more serious penalty (including imprisonment) provided for in paragraph (b)(i) of section 72(2) the prosecution had to prove that the appellants were in possession of abalone (fish of a priority species) “for the purposes of sale”.
[8] Five per person, per day and ten for any one boat per day according to clause 62(2) and clause 62(1) respectively, of Schedule 6 of the Fisheries Management (General) Regulations 2007.
In order to prove this, the prosecution was entitled to rely on the presumption to this effect arising from the fact that the appellants were found in possession of a “commercial quantity”, as defined. According to section 72(3)(a) and in order to avoid effect being given to the presumption, an onus fell on the appellants to prove “to the contrary” that is, that they did not have the abalone in their possession for the purposes of sale.
Section 72(5) provides for a defence to an offence against section 72 in the circumstances set out, none of which apply in the present case. No defence was raised in accordance with section 72(5).
Finally, section 72(6) provides that, but for circumstances not applicable in the present case, if the prosecution proves that the appellants had possession of more than the prescribed quantity of abalone, the offence under section 72(2) will be proved unless the appellants establish a defence under subsection (5). Regulation 8(2) of the Fisheries Management (General) Regulations 2007 provides that for the purposes of section 72(6) the quantity specified in Schedule 3 (in the case of abalone, more than 25) is the “prescribed quantity”.
In the end result and on the facts of this case, section 72 placed an onus on the appellants to prove, on the balance of probabilities, that the commercial quantity of the abalone found in their possession was not in their possession “for the purposes of sale”.
The essence of the defence at trial
The appellants contended at trial and adduced evidence said to support this contention, that the abalone in their possession was intended for personal consumption and for distribution by way of sharing them amongst family and other indigenous community members at Point Pearce. Further, the appellants contended that their taking of the abalone was lawful because it fell within section 211 of the Native Title Act 1993 (Cth). Section 211 is in these terms.
211―Preservation of certain native title rights and interests
Requirements for removal of prohibition etc. on native title holders
(1)Subsection (2) applies if:
(a)     the exercise or enjoyment of native title rights and interests in relation to land or waters consists of or includes carrying on a particular class of activity (defined in subsection (3)); and
(b)     a law of the Commonwealth, a State or a Territory prohibits or restricts persons from carrying on the class of activity other than in accordance with a licence, permit or other instrument granted or issued to them under the law; and
(ba)   the law does not provide that such a licence, permit or other instrument is only to be granted or issued for research, environmental protection, public health or public safety purposes; and
(c)     the law is not one that confers rights or interests only on, or for the benefit of, Aboriginal peoples or Torres Strait Islanders.
Removal of prohibition etc. on native title holders
(2)If this subsection applies, the law does not prohibit or restrict the native title holders from carrying on the class of activity, or from gaining access to the land or waters for the purpose of carrying on the class of activity, where they do so:
(a)     for the purpose of satisfying their personal, domestic or non-commercial communal needs; and
(b)     in exercise or enjoyment of their native title rights and interests.
Note: In carrying on the class of activity, or gaining the access, the native title holders are subject to laws of general application.
Definition of class of activity
(3)Each of the following is a separate class of activity:
(a) hunting;
(b) fishing;
(c) gathering;
(d) a cultural or spiritual activity;
(e) any other kind of activity prescribed for the purpose of this paragraph.
Section 211(2), where it applies, provides in effect, that native title holders are not prohibited from fishing for abalone where they do so in compliance with both paragraphs (a) and (b) of section 211(2).
The approach leading to conviction taken by the Magistrate
The Magistrate found on the evidence that the appellants are all members of the Narungga people with native title rights which include a right to take abalone in the area where the alleged offence occurred.[9] The respondent has conceded that the appellants are all members of the Narungga people but, by ground 1 of its Notice of Contention filed in the appeal, challenges the second proposition in this finding. Her Honour, in effect, accepted that section 211(2) was of potential application to the matter before her in accordance with its terms. As such, and (leaving aside for the moment issues concerning onus and standard of proof) in the event that the abalone had been taken:
(a)for the purpose of satisfying [the appellants’] personal, domestic or non-commercial communal needs; and
(b)in exercise or enjoyment of [the appellants’] native title rights and interests.
the conduct of the appellants complained of would not be found to have been unlawful.
[9] Reasons for Judgment at [12].
The Magistrate, following her review of the evidence, found the elements of the offence under section 72(2)(c) established subject to any defence available to the appellants pursuant to section 211 of the Native Title Act. Her Honour accepted, in effect, that if section 211 applied, section 109 of the Australian Constitution would operate “to suspend”[10] the operation of section 72 such that there would have been no unlawful taking of the abalone. This conclusion, as to the constitutional primacy of any defence found to be available under section 211, was not challenged by the prosecution.
[10] See Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 474.
Whilst her Honour did not expressly consider the issue, it appears that she approached the application of section 211 to the evidence before her on the basis that the appellants carried the onus of proof on a balance of probabilities to establish the matters set out in paragraphs (a) and (b) of section 211(2). She did not adopt the position that it was the prosecution who carried the onus of proof and that the prosecution was obliged to exclude, on the facts, the application of the defence under section 211(2) beyond reasonable doubt.
Her Honour did not expressly deal with the “defence” available under section 72(3)(a) of the Fisheries Management Act, that is, the opportunity available to the appellants to reverse the presumption that the 370 abalone were in their possession for the purpose of sale by the adducing of proof to the contrary. However, given her Honour’s rejection of the defence under section 211(2), on the facts, it necessarily followed that her Honour was not satisfied that the appellants had adduced evidence sufficient to reverse the presumption established by paragraph (a) of section 72(3).

The Magistrate in her reasons for judgment summarised and analysed the evidence that was before her and ultimately declared herself “not satisfied [the appellants] did not have the abalone for a commercial purpose”. She was satisfied that section 211 of the Native Title Act did not apply and that the appellants were in possession of the abalone, contrary to section 72(2) of the Fisheries Management Act. Her Honour declared herself satisfied beyond reasonable doubt that the offence had been made out.
The appeal against conviction
The Notice of Appeal and the Notice of Contention
By the second Notice of Appeal the appellants raise two grounds of appeal against conviction, each of which has a number of particulars.
1)That the Learned Magistrate, in making her finding that the Appellants were guilty, misdirected herself and acted upon matters and considerations which were not supported by the evidence and the weight of the evidence.
Particulars
(A)    The Learned Magistrate, was in error in respect of the Appellant Greg Wanganeen, in implicitly requiring him to self-incriminate in respect of “numerous occasions in the past” of abalone taking in quantity (which, in context, could have evidenced communal usage);
(B)    The Learned Magistrate was in error in respect of the evidence given by Greg Wanganeen in drawing adverse inferences from his not informing the Fisheries Officers immediately of the existence of the abalone; and his referral, upon being questioned as to the abalone, to his native title rights;
(C)    The Learned Magistrate was illogical, resulting in error of law, in saying: “None of the defendants said anything about feeding the community until after the abalone were located”;
(D)    The Learned Magistrate was illogical, resulting in error of law, in reasoning to guilt from an absence of pickling equipment (i) without evidence as to how soon the pickling must begin to preserve abalone; and (ii) when the existence of freezers is a clear possibility, and it is common knowledge that freezers do not need to be immediately adjacent to the beach where the abalone were taken to perform preservation.
(E)     The Learned Magistrate erred in law in reversing the onus of proof (see 2(C) below) in saying that there was “no evidence” as to:
(i)how many people were in the community that day;
(ii)any preparation of jars to pickle the produce;
(iii)anyone other than the Defendants saying that they were expecting to share the bounty; and
(iv)Greg Wanganeen having shared with the community anywhere near this quantity of fish before.
2)That the Learned Magistrate misdirected herself in relation to consideration of native title rights and interests and the interaction between the FM Act and the Fisheries Management (General) Regulations 2007 (“the FM Regulations”) on the one hand, and the Native Title Act 1993 (Cth) (“the NT Act”) on the other, as they applied to evidence before the Court;
Particulars
(A) The Learned Magistrate commenced her reasoning as to guilt by finding that the operation of the FM Act and the FM Regulations, worked to “deem” the Defendants to be in possession or control of a commercial quantity of abalone for the purposes of sale. The Learned Magistrate committed error of law by deeming possession or control for the purposes of sale as antecedent to and underlying the consideration of whether the abalone were taken for purposes provided in the NT Act s211, (other NT Act requirements not being in dispute) being “for the purpose of satisfying [the Defendants’] personal, domestic or non-commercial communal needs” (“the acceptable NT purposes”).
(B)    The Learned Magistrate asked herself the wrong question when she said: “... the question remains what the reason for taking this amount of abalone [...] was: whether it was to satisfy a traditional obligation to the community or whether it was for a commercial purpose?”. The acceptable NT purposes (which comprise more than just “obligation to the community”) from the Native Title defence, and in the absence of any evidence of actual (as opposed to deemed) commerciality regarding the abalone, the analysis to be undertaken by the Court is not (i) community obligation “or” (ii) commercial purpose. The first issue, and conclusive if made out, is whether the acceptable NT purposes exist. The Learned Magistrate has reasoned that the number of abalone in question “deemed” commerciality, resulting in the conclusion that her Honour was “not satisfied the defendants did not have the abalone for a commercial purpose”. The prosecution may not prove commerciality, thus destroying the NT defence, by reference to State Regulations. Proof of commerciality to destroy the NT defence provided by Commonwealth legislation must be by evidence, not deeming pursuant to a State Regulation. The State cannot deem the meaning of words in Commonwealth legislation (other than by referral, which has not happened here).
(C)    The defence was that the abalone were taken for the acceptable NT purposes. The Learned Magistrate committed error of law in not determining that the Defendants had no more than a persuasive burden on them to adduce evidence as to their intended use of the abalone for the acceptable NT purposes, and that the prosecution would then have the evidential burden of proving beyond reasonable doubt that the abalone were not to be used for the acceptable NT purposes.
By its Notice of Contention, the respondent raises two alternative contentions which it maintains support the Magistrate’s finding of guilt independently of the grounds relied upon by the Magistrate.
1.The appellants failed to discharge the evidentiary onus they bore to adduce sufficient evidence of the customary rules and qualifications surrounding their asserted native title right to fish abalone so as to require the prosecution to prove beyond reasonable doubt the non-application of section 211 of the Native Title Act (C’th) to the circumstances of the offending; and, accordingly, section 211 was irrelevant.
2.If paragraph [1] is rejected, and on the further assumption that her Honour erred in applying s 72(3)(a) of the Fisheries Management Act 2007, the only proper inference from the evidence in the circumstances of this case was that the abalone taken by the appellants were in fact taken for sale and that her Honour’s error in applying s 72(3)(a) was not in the circumstances a material error.
It is convenient to approach the disposition of the appeal, in the first instance, by giving consideration to the respondents’ first alternative contention. The respondent’s argument with respect to section 211 can be summarised in the following propositions.
(i)In order to take advantage of the defence potentially available under section 211, a defendant first has to satisfy an evidentiary onus with respect to all factual requirements of section 211 following which the prosecution would bear the onus of proof to exclude the defence.
(ii)Section 211 does not, of itself, say anything about the standard of proof to be discharged by the prosecution once a defendant were to discharge their evidentiary onus sufficiently to raise the defence.
(iii)In order to ascertain the standard of proof to be observed by the prosecution, one must look to the general law dealing with the proof of criminal offences together with any relevant statutory modification.
(iv)Consistently with principle, and provided that the defence under section 211(2) is raised, the prosecution would be obliged to exclude the factual requirements in section 211(1)(a) and (2)(b) beyond reasonable doubt as part of its proof of the offence said to have been committed.
(v)However, section 72(3)(a) of the Fisheries Management Act has modified the common law as to proof with respect to the factual issue raised in section 211(2)(a). The prosecution still must prove beyond reasonable doubt that a defendant had a commercial quantity in their possession. However, having done so, under section 72(3)(a) the defendant is presumed, in the absence of proof to the contrary, to be in possession for the purpose of sale. Accordingly, once this same issue arises as part of the defence provided under section 211, by virtue of the requirement in section 211(2)(a), the prosecution need only exclude this aspect of the defence on a balance of probabilities and can rely on section 73(3)(a) in doing so. There is no inconsistency, so as to invoke section 109 of the constitution, between section 72(3) and section 211 in this respect.
(vi)The Magistrate was correct, upon her review of the evidence before her, in finding that the appellants had not discharged an onus on them to prove that they did not have the abalone in their possession for the purpose of sale but rather for the purpose of personal consumption and sharing with their community. Accordingly, the prosecution has discharged the burden on it of excluding, on a balance of probabilities, that aspect of the defence provided for in section 211(2)(a). Further, it is unnecessary for the prosecution to also have excluded, beyond reasonable doubt, that aspect of the defence set out in paragraph (b).[11]
(vii)However, and in any event, the respondent by its first alternative contention maintains that the appellants failed to discharge their evidentiary onus as to the customary rules and qualifications surrounding their asserted native title right to fish abalone such that the defence under section 211 and an obligation on the respondent to exclude the defence on the facts did not arise.
[11] A defendant’s evidentiary onus applies with respect to both (a) and (b) of section 211(2) before the defence will arise.
Does the defence under section 211 arise in this case
It is unnecessary, in the first instance, to determine the correctness or otherwise of the propositions in (ii) to (vi) above. This is because, in my view and as discussed below, the proposition in (i) is undoubtedly correct. As such if the proposition in (vii) is established on the evidence of this case, the defence under section 211 will not be available. Therefore, it is to propositions (i) and (vii) that I now turn.
I first observe that the appellants in this case did not have the benefit of the factual concessions with respect to section 211(1)(a), (2)(a) and (2)(b) afforded to the applicants in Karpany v Dietman.[12]
[12] [2013] HCA 47; (2013) 252 CLR 507.
In Karpany v Dietman, the defence under section 211(2) was held to apply so that the Fisheries Management Act did not operate to prohibit the applicants in that case (also members of the Narungga people) from gathering or fishing for abalone in certain waters of South Australia. However, the prosecution had conceded the factual matters in section 211(1)(a) and the matters of law in section 211(1)(ba) and (c). The relevant issue in this respect before the Court was whether the Fisheries Management Act and, in particular, section 115 of that Act, satisfied section 211(1)(b). The High Court found that it did and, therefore, the defence under section 211(2) was available.[13] The prosecution also did not dispute, as matters of fact, paragraphs (a) and (b) of section 211(2). Accordingly, the defence under section 211 was available to the applicants as a matter of law and (unlike in the present case) on the basis of non-contested facts.
[13] The Court also found, as a matter of law, that the Fisheries Management Act did not operate to extinguish the applicant’s native title right to fish.
Section 211(1)(a) and 211(2)(b) both refer to the exercise or enjoyment of “native title rights and interests”. In addition, section 211(2) confers the benefit of the defence on “native title holders”. Under section 224 of the Native Title Act a “native title holder” is defined as “the person or persons who hold the native title”. Section 223(1) defines “native title” in the following terms.
(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a)     the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b)     the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c)     the rights and interests are recognised by the common law of Australia.
It follows, that the defence under section 211(2) requires (subject to the onus and standard of proof considerations) the appellants to be “native title holders” with respect to the activity in question and that, on the day in question when they collected the 370 abalone, they did so in the exercise or enjoyment of their native title rights and interests as recognised by the common law of Australia.
Section 211 of the Native Title Act was considered carefully and comprehensively by Underwood J (as his Honour then was) in Dillon v Davies.[14] Whilst this case was decided in the late 1990s, I do not understand the reasoning of Underwood J in Dillon to have been challenged or undermined by subsequent decisions. In my respectful opinion, the reasoning and decision was and remains correct. In undertaking his analysis, Underwood J adopted and followed, in relevant respects, the reasoning in Mabo v Queensland (No 2),[15] in Mason v Tritton[16] and of the majority in Derschaw v Sutton[17] all of which had been decided in accordance with the application of common law principles to factual matters that had arisen prior to the native title act coming into effect.
[14] (1998) 8 Tas R 229; (1998) 145 FLR 111.
[15] (1992) 175 CLR 1.
[16] (1994) 34 NSWLR 572.
[17] (1996) 17 WAR 419 (Franklyn and Murray JJ, Wallwork J dissenting).
In Dillon, the applicant had been charged with five offences under Tasmanian legislation relating to the taking of undersized abalone from waters off Tasmania. The applicant was convicted in a Court of Petty Sessions at Hobart and appealed to Underwood J as a single Judge of the Supreme Court of Tasmania. The applicant did not dispute that each of the elements making up the offences had been established. Rather, the applicant contended that the taking of the abalone was not unlawful for a number of reasons, including by reason of his native title rights and interests under the Native Title Act.
Both the Magistrate and Underwood J, on appeal, adopted the following statement by Kirby P in Mason,[18] as critical to an understanding of what will constitute a recognisable form of native title at common law.
If the exacting nature of the evidential burden established by Mabo ... were not immediately apparent to potential claimants before, this case will serve to make clear the point. In order to establish a successful common law claim for native title of the kind asserted here, within the rules established by Mabo, the evidence must be sufficient to demonstrate:
(1)that traditional laws and customs extending to the “right to fish” were exercised by an Aboriginal community immediately before the Crown claimed sovereignty over the territory. ...
(2)that the appellant is an indigenous person and is a biological descendant of that original Aboriginal community;
(3)that the appellant and the intermediate descendants had, subject to the general propositions outlined above, continued, uninterrupted, to observe the relevant traditional law and customs; and
(4)that the appellant’s activity or conduct in fishing for abalone was an exercise of those traditional laws and customs.
As Underwood J pointed out, the Court in Mason was not concerned with the Native Title Act but with the position at common law. Nevertheless, the common law as expounded in that case is reflected in the provisions of the Act.[19]
[18] (1994) 34 NSWLR 572 at 584 (citations omitted).
[19] See section 223(1)(c).
Priestley JA, in Mason,[20] summarised the common law by reference to the judgments of the majority in Mabo and included the following in that summary.
The native interest must be a recognisable part of the system of rules observed by an identifiable group of people connected with a particular locality ...
A person asserting entitlement to enjoyment of the interest at the present day, must show biological descent from the group which was observing this system of rules which the interest was part; that is show biological descent dating back to just before the establishment of the common law ...
A person asserting such entitlement must also show that the biological descendants of the pre-common law group have continued and are continuing to observe the system at the time the claim was asserted.
[20] Mason v Tritton (1994) 34 NSWLR 572 at 598.
The other judgment in Mason (although not referred to by Underwood J) was that of Gleeson CJ who observed as follows.[21]
Fishing is an activity which is so natural to people who occupy, or visit, coastal regions, that some care needs to be exercised in passing from an observation that people have engaged in that activity to an assertion that they are members of a class who have exercised some form of right pursuant to a system of rules recognised by the common law. In order to take the first step towards the conclusion that he was not bound by the regulations earlier mentioned, it was a proposition of the latter kind that the appellant needed to establish in the present case.
In seeking to bring his conduct within a system of rules, recognised by the common law, and arguably outside the purview of the relevant regulations, it was necessary both for the appellant to give content to those rules and to bring himself and his activities within their scope. This he failed to do. To take one example of such failure, the appellant’s assertion of a traditional native title right to take abalone gave rise to a question, concerning the nature of that right, as to the quantity that may be taken and the purposes for which it could be taken. Did those purposes, for example, include commercial purposes? It may be one thing to assert a right to take abalone as one needs, and another thing to assert a right to take an unlimited quantity regardless of the purpose for which it is to be used. The evidence led by the appellant showed that the Aborigines had traditionally taken abalone from the waters in which the appellant was operating, but it was silent on the question of what qualifications there might be upon the exercise of any right that was involved.
[emphasis supplied]
[21] Mason v Tritton (1994) 34 NSWLR 572 at 574E-575A.
In Dillon, Underwood J held that the prosecution had the burden of excluding a native title defence but only where it was raised by the evidence and that the defendant bore an evidentiary burden sufficient to raise the defence under section 211. On the facts before the Magistrate and before Underwood J, Underwood J held that there was insufficient evidence before the Court to raise a native title right to take abalone. His Honour said this.[22]
The evidence established no more than that the taking of abalone was something that had been done by aborigines for a very long time. Such evidence alone is insufficient to discharge the evidentiary onus the applicant carried to cast onto the prosecution the burden of establishing beyond reasonable doubt that he did not take abalone in the exercise of his native title right.
Underwood J further observed.[23]
The learned Magistrate was quite correct when she said ...
In this case the custom is general and its limits unknown. There is no certainty about the ambit of the custom under aboriginal customary law to take abalone. It is not known who had the right to take abalone, whether it is limited, or in which location the right may be exercised. While I agree with defence counsel’s submission that there is no requirement for any particular ritual or ceremony to be attached to the custom, and in fact, the custom could be an ordinary activity, the custom must be capable of definition. The nature of the custom must be known ...
[22] (1998) 8 Tas R 229 at 238-239; (1988) 145 FLR 111 at 118.
[23] At 241; 119-120.

A similar approach was taken by the majority in Derschaw.[24] This case was concerned with the common law position immediately prior to the passing of the Native Title Act.
[24] (1996) 17 WAR 419.
Derschaw was the subject of an application for special leave to appeal to the High Court of Australia. The application was heard by Dawson, Toohey and Kirby JJ and was dismissed.[25] During the argument, Dawson J put the following proposition which was not disputed by counsel for either party or the other members of the bench.
Could I just put this to you, that there is no doubt about the principles to apply, that it was incumbent on your clients to raise an evidentiary basis for their defence. That having been done, it was then incumbent upon the prosecution to establish the offence beyond reasonable doubt including taking into account the defence which your client sought to raise. But what was held was that there was not a sufficient evidentiary basis established.
[25] See Derschaw v Sutton [1997] HCATrans 158.
The appellants called three witnesses: one of the appellants, Greg Wanganeen, Mr Klynton Wanganeen (who is Narungga on his father’s side and Ngarrindjeri on his mother’s side and is related to all of the appellants) and Dr Amy Roberts, an academic, anthropologist and archaeologist.
The evidence of Greg Wanganeen relevant to the question of a native title right to fish for abalone
Greg Wanganeen was 27 at the time he gave evidence. He said that he is Narungga, that the area of the Narungga is the Yorke Peninsula and that “we provide for our tribe with seafood”. Greg Wanganeen gave a description of the various seafoods he would fish for and collect for his own consumption and sharing with his community and his family.
He started to learn about this when he was about 12. He was taught by his father’s and mother’s brothers and other older men. His co-accused also learnt how to fish in the same way that he did which is essentially by watching and learning and fishing together with the older men.
Greg Wanganeen described the various areas in which he fished. He described how “they” would fish most days if they could, particularly in the warmer weather, and that they would cook and eat the fish the same day. He would also share the fish with other people. A purpose for fishing is to “feed our people” meaning the tribe, the family and outside the family.
Greg Wanganeen grew up in Point Pearce and he gave a description of the number of families that would be living there from time to time. It is clear from Greg Wanganeen’s evidence that fishing was, for him and the other men with whom he mixed, a very important activity. It was more than recreational; it was to obtain food and to obtain food that could be shared with other people in the community. He was told that abalone was one of the Narungga traditional foods and “you know, eat it, we love it, we share it”. Greg Wanganeen and his group of men snorkel for abalone. Sometimes they walk on the reef where it is very shallow and grab abalone off the reef. They use a rock to knock the abalone off the reef. When they snorkel they use a fishing knife or a screwdriver.
Greg Wanganeen also described how they take the abalone out of the shell, how they prepare it for eating and how they cook it in various ways. He was taught by his elders how to do these things. Sometimes they pickle abalone in a jar. Sometimes they let them sit in the fridge or freeze them for later consumption. They mince them, boil them, fry them and so on. Greg Wanganeen gave some evidence about their storage practices, particularly by using vinegar. He gave examples of occasions for sharing abalone with family and other community members.
Evidence of Dr Roberts
Dr Roberts has a PhD in archaeology and a graduate certificate in anthropology. She has worked with members of the Narungga community since about the year 2000 and has focussed in particular on traditional fishing and their use of the coastal zone and seascape.
According to Dr Roberts, the use of shellfish by the Narungga people is well documented in the earliest records available from about 1850. She described a range of documentary and archaeological evidence to the effect that the Narungga people took shellfish as part of their fishing activities. The taking of abalone appears in the early ethno-historical records. Shellfish has always been an important part of the diet of the Narungga people. In the present day, she has seen people collecting abalone as well as other important cultural species such as butterfish. Dr Roberts has not specifically investigated post-European contact use of abalone. However, she has observed from recent camping areas in and about Point Pearce evidence of the taking and consumption of abalone. Dr Roberts has identified traditional language names that have been recorded over the years for abalone. There has also been a plethora of common names.
Dr Roberts assumed that the Narungga people continue to take abalone from intertidal areas but she has not seen any direct evidence of this. She has herself observed abalone being taken from deep waters and the early records indicate that Narungga people were observed diving in relatively deep waters in order to fish generally. It is her assumption that people undertaking deep water swimming and diving were collecting a range of seafoods and that this occurred from the earliest periods before European contact. Dr Roberts was not aware of any information from the archaeological records about traditional methods for preparation of abalone by Narungga people. However, from talking to people in the modern day and from oral histories, she has had or been aware of general discussions about cooking shellfish on campfires.
According to Dr Roberts, the sharing of fish and other marine species is enormously important to the Narungga community. It forms part of the wider kinship system of respecting elders and there is a cultural expectation that a catch will be shared with elders. Most community members have spoken to her about the need to collect large quantities of fish or shellfish at certain times such as on the occasion of a funeral or other celebrations of major events when it is expected that larger groups of Aboriginal people from around the State will gather. This is something additional to or beyond sharing with the family.
During cross-examination, Dr Roberts agreed that the research she undertook for the purpose of preparing a report for the Court and giving evidence in this matter was “primarily desktop” with no interviews or field work sessions. She acknowledged in her report that she is not claiming to present any “comprehensive analysis of the use of abalone by the Narungga community”.
Dr Roberts agreed with the cross-examiner that the Narungga people, when fishing, would take quite a long list of different fish and shellfish. In other words, the Narungga people, as would be expected of a coastal community, fished in the general sense.
Dr Roberts agreed that it was possible, given the availability of abalone and other shellfish from the rocks, that deep diving beyond the intertidal waters would be mainly to look for other types of fish. She said that generally people including, by implication, the Narungga, would be opportunistic in terms of their hunting, harvesting and gathering.
Evidence of Klynton Wanganeen relevant to the question of a native title right to fish for abalone
When Mr Klynton Wanganeen was called to give evidence, an objection was raised concerning the nature of the evidence that he might legitimately give, in particular, whether or not Klynton Wanganeen was to give opinion evidence which the prosecutor submitted would be inadmissible. Counsel for the appellants told the Magistrate that:
The purpose is to establish that there’s a current practice of Narungga people that Mr Klynton Wanganeen has directly observed of the taking of abalone and the consumption of abalone and how that’s done.
During argument, counsel for the appellants drew the Magistrate’s attention to section 78A of the Evidence Act 1995 (Cth) which is in these terms.
The opinion rule does not apply to evidence of an opinion expressed by a member of an Aboriginal or Torres Strait Islander group about the existence or non-existence, or the content, of the traditional laws and customs of the group.
However, counsel told the Magistrate:
We are not seeking to give archaeological evidence, that was the purpose of calling Dr Roberts. We are seeking to include his observation of Narungga people, both himself and other people, doing business in the modern world in the taking of abalone; that’s it.
Counsel maintained that the evidence to be given was to be confined to Klynton Wanganeen’s direct observation. The Magistrate allowed Klynton Wanganeen to give evidence confined to his observations but not opinion evidence unless properly qualified.
On occasion throughout his evidence an objection by the prosecution succeeded on the basis of this ruling. Whilst not a ground of appeal, during submissions on appeal, counsel for the appellants complained that the evidence of Klynton Wanganeen had been inhibited by this ruling and incorrectly so.
However, whether or not this was a correct ruling, bearing in mind that the potential application of section 78A of the Evidence Act is not a ground of appeal, was not fully argued and does not fall for consideration. The appellants only intended for Klynton Wanganeen to give evidence of current practices of Narungga people as directly observed by him with reference to the taking of and consumption of abalone. The Magistrate allowed evidence of this nature. Further, the appellants relied upon the expert evidence of Dr Roberts in endeavouring to establish a relevant historical background sufficient to describe the metes and bounds of the native title rights and interests relied on. Finally, and in any event, there is nothing before me, by way of affidavit or otherwise, to demonstrate the nature of the evidence Klynton Wanganeen would have given or as to its likely probative value, but for the Magistrate’s ruling.
I am not satisfied, in all the circumstances, that the Magistrate’s ruling, if incorrect, caused any material prejudice to the appellants’ case sufficient to give rise to a miscarriage of justice.
Klynton Wanganeen grew up on the Point Pearce Mission Station and lived there until 1989 when he moved to Adelaide. However, he maintains a strong ongoing connection with the community and settlement at Point Pearce. He is the chairperson of a couple of Narungga community organisations; the Narungga Construction Development Company and the Narungga Investment Company. He is also a member of the Narungga Native Title Committee. He still has family living at Point Pearce and goes to Point Pearce regularly.
When asked about the nature of his familial relationships with each of the appellants and whether this might cause him to be partial or to give biased evidence, Klynton Wanganeen gave this answer.
I have relationships with those men, but I also have responsibility to them and my responsibility is when I take them fishing, when they were younger, my responsibility was to teach them how to do things the proper way and also to make sure they done it in a safe manner because when you and swim out in the water, there are dangerous species of sharks. So being safe, being responsible, making sure that they know what they are doing and where to go in any different weather in the different climatic conditions because the catching of fish - catching of fish is quite important to us culturally.
Klynton Wanganeen was taught to fish by many people including his father and various uncles. He was shown how to take abalone and where to go to get them. He has taken his own sons and a lot of nephews and cousins fishing from very young ages and has taught them about fishing, including about the best places to fish.
Klynton Wanganeen explained how he fishes for or takes abalone by using a net bag, a spear gun and a knife. He does not go out just to get abalone, but to get a couple of species of fish, particularly butterfish. He explained how he would swim out to get the abalone but he tries not to take too much from one area.
I take enough from one patch and then go to another patch and because I swam over a lot of those areas for a lot of years, I virtually know where there are lots and lots of patches of abalone. Some of them you have to swim out a bit, a lot further and others it’s in close, in the intertidal zone.
Klynton Wanganeen spoke about the quantity of abalone he might take on a particular occasion and the quantity his extended family might consume. He emphasised the cultural importance of sharing as symbolising that a person is a good provider and a person to be looked up to in the community. He also gave evidence about the sizes of abalone that he and others would take and the various means by which abalone could be prepared and cooked for eating.
During cross-examination, Klynton Wanganeen agreed that the relationship he had with each of the five appellants was a close one and that he felt a kinship with each of them. He agreed that he was a mentor or a guide to them in some areas, particularly with respect to their football careers. He sees them at parties and when he goes to Point Pearce. Each of them calls him “uncle”. He agreed that, as an older man who has taken some responsibility for the appellants, he would be concerned about their future, as he is concerned about the future of all Aboriginal people. He explained that he was fully aware of the seriousness of the charges the appellants were facing. In that context, Klynton Wanganeen gave this answer.
And I know that the seriousness of depleting resources from the sea and wiping out species from areas. That’s why cultural taking is important because our people don’t rape and pillage the sea.
The respondent’s submission concerning the appellants’ evidentiary onus to give rise to a defence under section 211
The respondent submitted before the Magistrate and repeated the submission on appeal that section 211 of the Native Title Act raises for consideration the following factual elements relevant to the present case:
(i)that the appellants belong to the Narungga community;
(ii)that the Narungga community’s present day customary rights include the spontaneous taking of large quantities of abalone for sharing in the community without there being any special occasion for that sharing; and
(iii)that the abalone taken on the day in question were in fact taken by the appellants in the exercise of that customary right for their personal, domestic or non-commercial communal needs.
The respondent does not challenge the first element but submits that the evidence before the Magistrate was insufficient to establish an evidentiary basis for the second and third elements and that, in the absence thereof, the respondent was not obliged to exclude the application of section 211 beyond reasonable doubt.
Consideration of the applicability of section 211
Dr Roberts’ expert evidence was potentially relevant to the second issue. However, her evidence never went any higher than that the Narungga have always been a coastal fishing community and that the taking of all types of sea life, including abalone, and sharing it amongst the community has, at all times, been a feature of their cultural life. There is no support in the evidence of Dr Roberts for the contention that present day customary rights amongst Narungga people include the spontaneous taking by anyone in that community of large quantities of abalone for sharing amongst the community, particularly in the absence of a special occasion. There was no suggestion in the evidence of Greg Wanganeen or Klynton Wanganeen that a special occasion had been planned at which the abalone gathered by the appellants was to be consumed.
The evidence of Dr Roberts went no higher than supporting the self-evident proposition that fishing in order to obtain food for the community is a natural and to be expected activity for a coastal community such as the Narungga. As Gleeson CJ observed in Mason:[26]
[S]ome care needs to be exercised in passing from an observation that people have engaged in that activity to an assertion that they are members of a class who have exercised some form of right pursuant to a system of rules recognised by the common law.
[26] (1994) 34 NSWLR 572 at 574.
Consistent with the reasoning and approach of Gleeson CJ, it was necessary for the appellants in the present case to give content to the system of rules relied on and to bring themselves and their activities on the day in question within the scope of those rules. As in Mason, the evidence in the present case demonstrated that the Narungga had traditionally taken abalone from the waters in which the appellants fished but the evidence was silent on the question of what qualifications there may be upon the exercise of any right that was involved. There is no evidence to support a finding that the taking of 370 abalone by these five men fell within any traditional custom or native title right. Indeed tending to the contrary was the understanding within the Narungga community, disclosed in the evidence of Greg Wanganeen and Klynton Wanganeen, that fisheries were to be protected and not to be “pillaged” as Klynton Wanganeen put it.
There was no evidence as to who within the community had the right to take the abalone, whether or the extent to which the right to take abalone was limited by way of quantity or size, or whether or the extent to which it was limited in accordance with particular locations.
In other words, and notwithstanding that the appellants were engaging in an ordinary activity common to the Narungga as a coastal community and no doubt exercised from before European settlement, the native title right or custom that they were purporting to exercise was not sufficiently defined by the evidence. It is not possible to assess whether the activity undertaken on the day in question fell within the native title right and custom asserted to be in existence.
I am satisfied that the appellants did not meet the evidentiary onus sufficient to raise the second and third propositions referred to above. There is insufficient evidence to raise a contention that Narungga traditional law and custom provided for the spontaneous taking of large quantities of abalone for sharing in the community at any time and in the absence of any special event.
This evidentiary onus not having been discharged, the respondent was not required to address section 211 and the defence was not available to the appellants.
Was the presumption of a purpose for sale under section 72(3)(a) of the Fisheries Management Act rebutted?
Section 211 of the Native Title Act has no role to play on the facts of this matter. However, and if I am wrong in this, I accept the correctness of the propositions in (ii) to (v) contended for by the prosecution as earlier set out in paragraph [26]. In other words, if the defence under section 211 were to apply, the prosecution would only need to have discharged the onus on it of excluding section 211(2)(a) according to the civil standard of balance of probabilities. This is so because of the presence of section 72(3)(a) of the Fisheries Management Act.
There is no contest that, on the day in question, the appellants were found in possession of 370 abalone, 188 of which were undersized. It follows that the offence under section 72(2)(c) has been established. It also follows that the presumption under section 73(3)(a) that the appellants were in possession for the purpose of sale will stand, unless the appellants have proved, on a balance of probabilities, that they did not possess this quantity of abalone for the purpose of sale.
Section 72(3)(a) calls for a consideration of the purpose held by each of the appellants at the time they gathered the 370 abalone in question. The evidence relevant to this question might come from each appellant giving direct evidence of their own purpose to be considered in the context of the whole of the evidence before the Court. Of course, in a criminal prosecution, an accused enjoys the right to silence and is not obliged to give evidence. No inference adverse to an accused’s case can be drawn from the fact of a failure to give evidence. However, where, as here, there is a reversal of the onus of proof, it often will be difficult to discharge that onus without calling evidence. In this case, only one of the appellants, Greg Wanganeen, gave evidence. Nevertheless, it may have been open to the Magistrate to infer that he was giving evidence on behalf of the group as to their common purpose or to infer a relevant purpose for each of the other appellants from the whole of the evidence before the Court.

The burden of Greg Wanganeen’s evidence, and of the defence case generally, was that all of the abalone taken was intended for personal consumption including sharing amongst extended family and other members of the Narungga community at Point Pearce. The Magistrate considered this factual question but did so in the context of the section 211 defence which she found (incorrectly, with respect) to be available.
Her Honour looked closely at the direct evidence of Greg Wanganeen relevant to this question and the contextual evidence of Klynton Wanganeen and Dr Roberts. She also had regard to the quantity of abalone taken by the five appellants and the observations of the Fisheries inspectors when they confronted the appellants.
Aspects of Greg Wanganeen’s evidence noted by her Honour included the following.
(i)He would probably eat six or seven abalone in a sitting but would also cook up some abalone to pickle. Children would eat maybe one or two abalone and adult women probably about five.
(ii)He was 27 at the time of giving evidence and has been fishing since he was a child. However, he had not previously been involved in taking such a quantity of abalone.
(iii)He had not fished with this particular group of men before.
(iv)The population of Point Pearce varies over time. It is normally about a hundred people but over the Christmas holiday period the numbers increase dramatically[27] and on funeral days they could have 20 or 30 people hungry for fish at his grandmother’s house which was a bit of a “drop-in” house.
(v)He did not suggest that there was to be any funeral or special occasion apart from the holiday period as at 30 December 2011.
(vi)He had no wife or children living with him and only told one person, Ross Lindsay, that he and the other appellants were going fishing on the day in question.
(vii)There was no evidence of any pre-planning or preparation for distributing a large quantity of abalone among members of the community.
(viii)When asked by the Fisheries officers what they had caught, he initially indicated “only a couple of strong fish and some squid”. When specifically asked about abalone, Phillip Dudley said “nah, mate” and Greg Wanganeen said “nah, fuck all”. None of the appellants said anything about feeding the community until after the abalone had been located by the Fisheries officers.
(ix)He explained that he was aware of the importance of maintaining the fishery.
(x)His evidence about pickling abalone was described by her Honour as appearing to be an afterthought.
(xi)Each time he fished, he would share the catch with family or community.
[27] It is to be recalled that the abalone were gathered by the five appellants on 30 December 2011.
In addition to the 370 abalone, there was only a handful of other fish taken. Her Honour, on her consideration of all of the evidence before her, inferred that the purpose of the exercise was to accumulate a large quantity of abalone rather than a range of fish for consumption by the community. Her Honour said this:[28]
I accept that in certain circumstances larger quantities of fish would be shared out among other members of the community, but if that was the intention, I would expect there to be a far greater variety of fish and for some enquiry to be made of the other persons in the community to ascertain whether people were going to be around to share in the produce, otherwise, there was a real risk of the fish going to waste.
Her Honour also placed some reliance on the lie told by both Phillip Dudley and Greg Wanganeen to the Fisheries officers that there was no abalone in the boat as evidence of a guilty mind.
[28] Reasons for Judgement at [36].
Ultimately, her Honour was not satisfied that the appellants did not have the abalone for a commercial purpose. Whilst her Honour stated this ultimate conclusion in the context of her consideration of the defence under section 211, she did in fact state and observe the appropriate onus and standard of proof required by section 72(3)(a). In other words, her Honour declared herself not satisfied by the evidence before her, including that adduced on behalf of the appellants, that all of the 370 abalone had been acquired for the purpose of personal consumption, including sharing in the community, rather than there being a purpose of sale with respect to at least some of it. Ultimately, upon her Honour’s consideration of Greg Wanganeen’s evidence as to purpose, in the context of the evidence before her as a whole, she did not believe Greg Wanganeen when he said that all of the abalone was for personal consumption and sharing. Having reached that conclusion, there was no scope for her Honour to draw any different inference concerning the purpose held by the other four appellants, none of whom gave evidence.
An appeal against conviction in the Magistrates Court arises under section 42 of the Magistrates Court Act 1991 (SA) and is an appeal by way of rehearing. The court hearing the appeal is required to conduct a real and independent review of the evidence put before the Magistrate and to come to its own conclusions.[29] On issues which involve an assessment of the credibility and reliability of a witness the court must make due allowance for the advantage of the Magistrate in seeing and hearing the evidence given.[30]
[29] For example, Martin v Department of Transport, Energy and Infrastructure [2010] SASC 141 at [38]-[39].
[30] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [23], [25]-[29].
I have reviewed the evidence in this case, and in particular, that given by Greg Wanganeen and Klynton Wanganeen insofar as it is relevant to the purpose that Greg Wanganeen and the other appellants may have had at the time they collected the 370 abalone. On my review of the evidence, it was entirely open to her Honour to disbelieve Greg Wanganeen and to reject the defence case that all of the abalone was intended for personal consumption and sharing within the community. Further, the Magistrate had the usual and significant advantages available to a trial Judge in that she heard and saw Greg Wanganeen and Klynton Wanganeen give their evidence. Issues of the credibility and reliability of Greg Wanganeen’s evidence were central to this critical question of fact being the nature of Greg Wanganeen’s and the other appellants’ purpose. Her Honour made a finding, in this respect, against the appellants on the balance of probabilities. There is nothing in the evidence nor was anything put during submissions to cause me to conclude that the Magistrate’s rejection of Greg Wanganeen’s evidence on this issue was contrary to “incontrovertible facts” or “compelling inferences” to be drawn from other evidence or was “glaringly improbable” as those expressions were employed by the High Court in Fox v Percy.[31]
[31] [2003] HCA 22; (2003) 214 CLR 118.
The appellants, in their first ground of appeal, assert a number of specific criticisms of the Magistrate’s reasoning process when coming to her conclusion on this question of the appellants’ purpose. I am not satisfied that the Magistrate misdirected herself in any of the respects asserted.
As far as appeal ground 1(A) is concerned, I agree with the submission of the respondent that the Magistrate was entitled to take into account any previous instances where Greg Wanganeen had taken large numbers of abalone to share in his local community. I agree that, had evidence been given of such prior instances, it would have made Greg Wanganeen’s version of events more plausible and that the converse would also follow. Her Honour’s inference that there was no occasion in the past where Greg Wanganeen had taken such a large amount of abalone was open to her on the evidence and was probative as to the truthfulness or otherwise of Greg Wanganeen’s assertion that he had done so on the occasion in question solely in exercise of his native title right to share amongst the community.
Appeal ground 1(B) does not disclose any error on the part of the Magistrate. The evidence of the interview with Greg Wanganeen was admitted without objection; it contained matters that were arguably inculpatory as well as matters that were arguably exculpatory. It was a question for the Magistrate as to what weight she would put on the answers given by Greg Wanganeen in the interview. Evasive behaviour and untruths when given during an interview, and if proved to be so, can be regarded as material to the question of whether or not evidence given in court is truthful and reliable.
As to ground 1(C) it was not illogical for the Magistrate to rely upon the fact that nothing was said about feeding the community until after the abalone had been located. Again, this is a matter to be considered in the context of all of the evidence taken as a whole and upon which the Magistrate was entitled to place weight. The Magistrate correctly directed herself concerning the lie told by Greg Wanganeen and expressed caution before deciding to rely upon it. Her Honour was entitled to give the issue of the lie, once she had properly directed herself, such weight as she did.
Ground 1(D) does not disclose a lack of logic resulting in an error of law. The matters referred to were matters to which the Magistrate was entitled to have regard when considering whether, on the evidence as a whole, the appellants had discharged the onus of establishing a lawful purpose on a balance of probabilities.
As to ground 1(E), the Magistrate did not reverse the onus of proof in the ways alleged. Given that the appellants carried an onus to demonstrate, on the balance of probabilities, their true purpose, her Honour was at liberty to identify aspects of the evidence about which she was not satisfied, albeit aspects of the evidence that could have been but were not adduced on behalf of the appellants. The fact that the Magistrate found that there was no evidence with respect to a number of factors which, in her Honour’s view, were relevant to the question of purpose does not of itself mean that her Honour incorrectly reversed the onus of proof. Her Honour was quite clear with respect to her ultimate finding that she was not satisfied that the appellants did not have the abalone for a commercial purpose. In this respect, her Honour did impose an onus on the respondents. However, her Honour did not err in doing so.
I am satisfied that ground 1 of the second Notice of Appeal is not made out. As far as ground 2 is concerned, this ground fails given my findings with respect to section 211 and ground 1 of the respondents’ Notice of Contention. I can find no basis upon which I ought to interfere with her Honour’s finding as to the appellants’ purpose. I dismiss the appeal against conviction.
Appeal against sentence
Sentencing submissions were heard on three occasions: on 10 September 2015 after the Reasons for Judgment were delivered; on 26 November 2015 during and as part of an Aboriginal Sentencing conference held pursuant to section 9C of the Criminal Law (Sentencing) Act 1988; and on 2 December 2016, the day sentences were delivered and immediately prior thereto. In sentencing each of the appellants, the Magistrate made the following orders.
In the case of Edgar Wanganeen, the Magistrate imposed a term of imprisonment for six months not suspended. She also imposed an “additional penalty” pursuant to section 110 of the Fisheries Management Act, of $5,000 reduced from the sum of $24,952 which her Honour calculated to be the appropriate additional penalty in accordance with the requirements of section 110. Her Honour reduced the amount to $5,000 in reliance on the discretion available to her under section 13 of the Criminal Law (Sentencing) Act 1988.
There is no challenge by either party to her Honour’s finding that, on the facts of this case, the additional penalty to be imposed pursuant to section 110 of the Fisheries Management Act was properly calculated as $24,952.
Further, there is no challenge by either party to the power of the Magistrate to impose either no additional penalty or to reduce it in accordance with the discretion available under section 13 of the Criminal Law (Sentencing) Act. In this respect, her Honour relied upon the analysis provided by Stanley J in Golden King (Australia) Pty Ltd v Dietman.[32]
[32] [2014] SASC 183; (2014) 121 SASR 230.
In addition, the Magistrate made consequential seizure orders, an order permanently prohibiting Edgar Wanganeen from fishing for abalone and imposed the victim of crime levy and prosecution costs of $1,095.[33]
[33] The amount allowed for prosecution costs was $5,475 which her Honour divided equally among the five appellants.
As far as Robin Wanganeen is concerned, the Magistrate made orders in the same terms as those made with respect to Edgar Wanganeen.
As far as Greg Wanganeen is concerned, the Magistrate made orders in the same terms as those made with respect to Edgar Wanganeen with the exceptions that the additional penalty was reduced to $8,000 and the term of imprisonment for six months was suspended upon Greg Wanganeen entering into a bond to be of good behaviour for three years in the amount of $500.
As far as Phillip Dudley is concerned, the Magistrate made orders in the same terms as those made with respect to Edgar Wanganeen, with the exceptions that the additional penalty was reduced to $8,000 and the sentence of imprisonment for six months was suspended upon Phillip Dudley entering into a bond to be of good behaviour for three years in the sum of $500.
In the case of Scott O’Loughlin, the Magistrate made orders in the same terms as those made with respect to Edgar Wanganeen with the exception that the additional penalty was reduced to $8,000.
The offending by Scott O’Loughlin caused him to breach a bond to be of good behaviour which provided that, in the event of breach, he was to be called up for sentence for an earlier offence of being in possession of abalone. Her Honour took the view that, as this had been his first such offence, a prison term would not have been imposed and fined him $3,000 for that offence. There is no appeal by either party with respect to this sentence which, given the facts of the offending (dealt with below) would appear to have been merciful.
The structure of the sentencing remarks
The Magistrate conducted an Aboriginal sentencing conference pursuant to section 9C of the Criminal Law (Sentencing) Act. A transcript of the section 9C conference was taken. Her Honour, in her remarks, summarised aspects of the conference. The conference lasted approximately two and a half hours (50 pages of transcript). In addition to the appellants and the parties’ legal advisers, 17 other people attended, including family support persons Narungga elders and representatives of PIRSA.[34] A number of the Narungga people who participated, by and large, spoke in support of the appellants; many spoke about the cultural right of the Narungga people to take fish. Her Honour briefly summarised what a number of the participants said, particularly about the cultural importance of fishing in the area and the connection that Aboriginal people have had with respect to that fishing over a long period of time. A number of family members and others spoke in support of the good character of a number of the appellants.
[34] Department of Primary Industries and Regions South Australia.
In her Remarks on Penalty, the Magistrate, after briefly describing the events at the section 9C conference, observed:[35]
In determining what sentence is to be imposed, I must apply the law as it exists in this state and I have found the defendants were not taking the fish for cultural reasons; they were taking them for a commercial purpose, that is, to sell. Any penalty that I impose must be with that in mind.
[35] Remarks on Penalty at [8].
The Magistrate then summarised a victim impact statement produced on behalf of the Minister in charge of the abalone fishing industry to the effect that the industry is highly regulated and controlled with a quota system in place which attempts to ensure the ongoing sustainability of the fishery. It was submitted that the illegal taking of abalone undermines the system aimed at sustainability and that poaching of fish is extremely difficult to detect.
Her Honour then referred to Bendikov & Hoklas v Parkes[36] for the proposition that deterrence, both personal and general, is an important consideration when fixing an appropriate sentence for unlawful taking of abalone. This is particularly so, given that illegal abalone fishing is difficult to detect such that when detected “the deterrent aspect of sentencing should be prominent”.
[36] [2008] SASC 248 at [33]-[35].
Her Honour then said that, in order to ascertain the appropriate penalty, she had considered a number of similar prosecutions “and tried to gauge the appropriate penalty in this matter”. Her Honour referred to the penalties imposed in the following cases: Plunkett v Dietman,[37] Dietman v Mackwell, Whetscone & Hird,[38] Department of Primary Industries and Resources SA v Dang & Tieu,[39] Douglas v The State of South Australia,[40] Phillips v The State of South Australia,[41] Bendikov & Hoklas v Parkes[42] and Dietman v Karagiannis and Debnam.[43]
[37] [2010] SASC 359.
[38] I have been unable to identify any reported remarks or judgment with respect to his matter and have assumed that it involved a penalty imposed in the Magistrates Court.
[39] I have been unable to identify any reported remarks or judgment with respect to his matter and have assumed that it involved a penalty imposed in the Magistrates Court.
[40] [2007] SASC 278.
[41] [2007] SASC 279.
[42] [2008] SASC 248.
[43] [2015] SAMC 8.
In my view, any assistance to be gained from these cases can only be very limited. They each involved quite different factual situations and the personal circumstances relevant to each of the defendants were quite different. The point is illustrated by the fact that the penalties imposed in each of the cases were, as to be expected, really quite disparate.[44] In addition, a number of these matters were decided in the context of an earlier, less onerous, penalty regime.
[44] As to the limited utility of such comparison exercises, see for example, R v Nozuhur [2013] SASCFC 81 at [55], R v Singh [2011] SASCFC 128; (2011) 111 SASR 219 at [32]-[34], [48]-[53] and R v Payne [2004] SASC 160; (2004) 89 SASR 49 at [87]-[88].
In Plunkett, the defendant was convicted of two offences including being in possession of a commercial quantity of a fish of a priority species, in this case 80 or so lobster. The other offence involved possession of undersized lobster. An appeal against sentence imposed in the Magistrates Court of six months imprisonment to be served cumulatively on an existing sentence being served of three years and ten months for drug offending was dismissed. There was no appeal against the Magistrate’s failure to suspend the six month sentence. Significantly, the appellant was described as having “an appalling antecedent criminal record”, one which involved 17 previous terms of imprisonment.
In Mackwell, the defendants pleaded guilty to trafficking in a commercial quantity (234) of abalone. Periods of imprisonment up to nine months were imposed but were suspended.
In Dang and Tieu, the defendants were convicted of simple possession of 110 blacklipped abalone, 105 of which were undersized. Neither defendant had any previous convictions and a fine of $600 was imposed.
Douglas and Phillips both involved multiple offences involving 2,213 and 2,689 abalone respectively. Douglas was sentenced to 12 months imprisonment with a non-parole period of seven months but, following a successful appeal, the prison sentence was suspended. Phillips was sentenced to 20 months imprisonment with a non-parole period of 12 months and the appeal against the Magistrate’s failure to suspend was dismissed. The same Judge dealt with both appeals and it would appear that the difference in approach with respect to suspension turned on the fact that Phillips had significantly less favourable personal circumstances including a prior criminal record of some significance. In any event, the offending committed by both Douglas and Phillips was significantly more serious than that in the present case.

In Bendikov, the defendants were only 18 years of age with no previous convictions. Their offending involved 181 abalone, 30 of which were undersized. There were no circumstances of aggravation and only fines were imposed.
Karagiannis and Debnam concerned trafficking in 192 abalone. One of the defendants was sentenced to imprisonment for 20 months with a non-parole period of six months and the other for four months suspended after serving one month. The starting points for both were considerably higher and allowance had to be made for time already served. However, both defendants had very significant prior criminal records including multiple prison sentences and periods on parole and prior offending of similar character.
After reviewing the various authorities, her Honour indicated that she would proceed on the basis that the offending was deliberate, that no remorse had been shown and that it was necessary to impose a sentence which deters not only each of the appellants but also other members of the community. It is not clear what her Honour meant by the term “deliberate”. A deliberate flouting of the law might be inferred with respect to Scott O’Loughlin because he had previously committed a similar offence and been placed on a bond. However, there is little, if any, evidence that would support a finding that any of the others had a sufficient understanding of the legislative proscriptions and their interaction with native title rights as they may have perceived them to be, so as to imply a deliberate flouting of the law.
To this point it is to be noted that her Honour had not yet considered the personal circumstances relating to each of the appellants. Nevertheless, her Honour continued:[45]
As noted, it is necessary to deter not only each of you, but other persons from offending of this kind. Given that you were all equally involved in the enterprise, I see no reason to differentiate between you as far as the head sentence is concerned.
Accordingly, in each case you will be convicted and sentence to a period of imprisonment of six months.
The next question that must be determined by me is whether or not that sentence should be suspended.
[emphasis supplied]
[45] Remarks on Penalty at [19]-[21].
Only then did her Honour proceed to briefly summarise the personal circumstances relevant to each of the appellants on the basis of which she determined whether or not, in each case, to suspend the prison sentence of six months that she had imposed.
Finally, the Magistrate dealt with the question of the “additional penalty” to be imposed as required by section 110 of the Fisheries Management Act. Her Honour found that whilst the additional penalty, calculated in accordance with the requirements of that section, would amount to $24,952 for each appellant, she was obliged to have regard to section 13 of the Criminal Law (Sentencing) Act before imposing that additional penalty. In this context, her Honour turned to the personal financial circumstances of each of the appellants and, in particular, to an assessment of their capacity to pay the additional penalty, as a result of which she ordered the reduced amounts identified earlier in these reasons.
A process error
By appeal ground 5, the appellants complain that “the Learned Magistrate erred in imposing sentences of imprisonment in relation to all Appellants”. The issue of whether or not her Honour had erred in determining that each of the appellants should receive a prison term and the same prison term, based solely on the fact that they were all equally involved in the enterprise and without having regard to their individual personal circumstances, was raised during the submissions on appeal. Appeal ground 5 does not specifically identify this error of process. Nevertheless, it is in terms wide enough to embrace this complaint as ventilated during submissions.
It is a basic principle of sentencing that all matters relevant to the sentencing process are to be considered at each stage of the sentencing process. In particular, all of the issues of whether or not to impose a prison term, the length of any head sentence, the length of any non-parole period and whether or not to suspend, are to be informed by, inter alia, the nature and circumstances of the offending and the circumstances of the offender.
The following observations by Gaudron, Gummow and Hayne JJ in Wong v The Queen[46] (albeit in the context of the debate concerning the two stage process for sentencing as compared with the instinctive synthesis approach) are pertinent.
Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say “may be” quite wrong because the task of the sentencer is to take account of all the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an “instinctive synthesis”. This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one in consideration, balances many different and conflicting features.
. . . .
The core of the difficulty lies in the complexity of the sentencing task. A sentencing judge must take into account a wide variety of matters which concern the seriousness of the offence for which the offender stands to be sentenced and the personal history and circumstances of the offender. Very often there are competing and contradictory considerations. What may mitigate the seriousness of one offence may aggravate the seriousness of another. Yet from these the sentencing Judge must distil an answer which reflects human behaviour in the time or monetary units of punishment.
[46] [2001] HCA 64; (2001) 207 CLR 584 at [75] and [77].
In the present case, the Magistrate determined, solely on the objective criteria relating to the nature and seriousness of the offence in fact engaged in by each appellant, that there was no reason to differentiate between them with respect to the head sentence. On this basis, her Honour imposed on each appellant the same head sentence of six months imprisonment. In so doing, the Magistrate failed to have regard to all of the factors relevant to the questions of whether or not a sentence of imprisonment should be imposed in the first place for a particular appellant and, if so, the appropriate length of that sentence for that appellant. As such, the Magistrate erred in the manner by which she imposed a sentence of imprisonment of six months on each of the appellants. The appeal should be allowed on the basis of ground 5.
As such, it is not necessary for me to consider the other grounds of appeal; the appellants must be resentenced in any event. Nevertheless, when all of the circumstances of each appellant (apart from Scott O’Loughlin) are considered together with the circumstances of the offending and the need for both personal and general deterrence, the prison sentence for each appellant (apart from Scott O’Loughlin), that is, the six month term of imprisonment (not suspended in the cases of Edgar Wanganeen and Robin Wanganeen) when considered in the context of the additional pecuniary penalty and the lifetime ban from fishing for abalone, was in each case “unreasonable or plainly unjust” and, therefore, manifestly excessive.[47]
[47] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
Resentencing
I start with three general considerations; two favourable to the appellants and one not favourable, in the sense of being neutral.
The first is directly referrable to the seriousness of the offending. The offence committed by the appellants is a serious offence for the reasons identified by the Magistrate and one which does require the deterrent aspect of sentencing to play a prominent role. Further, the taking of 370 abalone with 188 undersized when considered in isolation is to be seen as a serious example of this offence. However, and whilst the five appellants were jointly in possession of the abalone and liable on a joint criminal enterprise basis, the practical reality is that each appellant was likely to have the benefit of only 74 or so of the abalone. When viewed in this light, their culpability is reduced. This is not a case where the evidence would suggest that each appellant’s ability to collect abalone was enhanced by the five of them acting in concert. There no doubt were some benefits to be obtained by operating as a group but, in essence, the amount collected over any given period of time would be broadly proportional to the number of people involved in the collecting.
In other words, there is a misleading element to the characterisation of the offence committed as one involving each appellant being in possession of 370 abalone including 188 undersize.
The second matter, and one of general concern, is the time it has taken for the charge brought against each appellant to be resolved. The offence was committed by each appellant on 30 December 2011, some four years and eight months ago. The matter did not get to trial until early March 2015 with judgment and conviction on 10 September 2015. The section 9C Aboriginal sentencing conference took place in late November 2015 and the sentences were imposed on 2 December 2015.
Some of the delay has been caused by the time taken to have the appeal listed and heard and for a reserved judgment dealing with both conviction and sentence to be delivered. Nevertheless, by the time the appeal was heard in this Court (18 March 2016) the offending was some four years and three months old. Throughout this period, Phillip Dudley and Greg Wanganeen had been on bail and subject to a suspended sentence of imprisonment and Edgar Wanganeen, Robin Wanganeen and Scott O’Loughlin had been on bail and then, whilst sentenced to immediate terms of imprisonment, on bail pending appeal. In other words, some four years and eight months after committing the offence, none of the appellants has spent any time in custody.
The third matter of general context is that the section 9C conference ranged widely over a number of topics related to the sense of grievance held by the Point Pearce community members arising out of this and similar prosecutions. The general tenor of the quite lengthy and quite clearly expressed contributions was that the legislation and the courts in this area are resolutely denying what the Point Pearce community regard as being their cultural right and entitlement to fish and to share what is caught within their community. Whilst a number of important contributions were made relating directly to the personal circumstances of each of the appellants, most of the discussion concerned these more general issues.
The Magistrate, quite correctly with respect, explained on a number of occasions that the purpose of the section 9C conference was to obtain information that would assist in the sentencing of the appellants now that the findings had been made that they were guilty of the offence as charged and that they had not fished on the occasion in question for personal and community consumption but for a commercial purpose. Nevertheless, on my reading of the section 9C conference transcript, it is readily apparent that there is a real sense of grievance amongst the community and amongst the appellants. However, and as the Magistrate pointed out, the matters raised in this context are matters to be raised with the State Government and the relevant Department administering the legislation. They are not matters that can bear directly on the appropriate sentence for the five appellants found guilty of possessing the abalone in question for a commercial purpose.
I turn to summarise briefly the personal circumstances of each of the appellants. In this respect, I adopt the summary provided by the Magistrate in her sentencing remarks which I do not understand to be challenged.
Edgar Wanganeen[48]
[48] Remarks on Penalty at [23]-[24].
As regards Edgar Wanganeen. I note he is 25 years of age. He lives at Point Pearce and receives a Newstart benefit. An old injury to the knee means he is not able to do community service. He is single with no children. In 2007 he worked for the Lands Trust and has qualifications as a welder, in pipe line laying and trenching. He also is an accomplished swimmer and fisherman and won the butter fish trophy.
In February 2009, as a youth, he was convicted of selling or purchasing fish where the fish had been taken without a licence. He was given a good behaviour bond and 100 hours community service work. He is also currently on a good behaviour bond for a charge of committing theft using force, which a period of imprisonment of three years was imposed with a non parole period of one year, six months. That sentence was suspended. The offence was committed a few months before the current offence for which I must deal with him, but the sentence had not been imposed at the time of committing the current offence.
Robin Wanganeen[49]
[49] Remarks on Penalty at [27]-[28].
Robin Wanganeen is 22 years of age and lives in Salisbury North. He went to Year 9 at school. He has a first aid certificate and a forklift licence. He helps his cousin care for her six children. He grew up at Point Pearce. His father lives at Whyalla. He takes part in the spear fishing competitions.
He is only 22 years of age, but has a number of appearances before the Youth Court for serious offences and some other offending in the Magistrates Court which post-dates the current matter. Given that he has been before the court on a regular occasion since November of 2007 for a variety of offences, including some very serious charges... . The defendant has previously breached a bond and had served a period of detention... .
Greg Wanganeen[50]
Greg Wanganeen is 28 years of age, deaf in one ear and receives a Newstart benefit. He has no previous convictions for fishing matters, but does have a number of court appearances between 2002 and 2009. The most significant of which is for an offence of assault, for which on 18 July 2006 he entered into a good behaviour bond for a period of 12 months. He has, however, managed to stay out of trouble with the exception of one charge of fighting in 2009, since that bond in 2006. A reference has been tendered... .
Phillip Dudley[51]
Phillip Dudley is 30 years of age. Employed in landscaping and works six days a week, which is casual work, but he works long hours he has no children, lives with his sister and her six children. Was born in Port Lincoln, but spent a lot of time at Point Pearce. Although his parents were separated, he had a good childhood and his parents remained amicable towards each other. He has a brother and two sisters and his younger sister is currently involved in a relationship which is characterised by domestic violence and she has recently needed family assistance and assistance from him. Mr Dudley was an A-grade footballer and has injuries as a result of that.
As far as criminal history is concerned, he has been before the Children’s Court and the adult court on a number of occasions, however, his offending has been quite minor... .
Scott O’Loughlin[52]
Scott O’Loughlin is 25 years of age. His father, Alex says that he has always had the deepest respect for the elders and has good friends who do not lead him astray. A reference has been tendered which speaks highly of him and the manner in which he deals with traditional Aboriginal people. It also anticipated he will be able to obtain future employment at Ceduna. Unfortunately, he also has a previous conviction for possessing a commercial quantity of fish of a priority species, for which he was convicted in August 2011. The current offences occurred on 30 December 2011, so four months after he was convicted in the Port Pirie Magistrates Court of a similar offence and placed on a good behaviour bond for three years.
[50] Remarks on Penalty at [30].
[51] Remarks on Penalty at [33]-[34].
[52] Remarks on Penalty at [36].
I observe that the respective ages of the appellants, as noted in the Remarks on Penalty, are the ages that were provided as at the time of the sentencing conference. As I have indicated, the offending itself occurred some four years earlier. Accordingly, at the time of the offending Edgar Wanganeen was approximately 21 years of age, Robin Wanganeen was approximately 18 years of age, Greg Wanganeen was approximately 24 years of age, Phillip Dudley was approximately 26 years of age and Scott O’Loughlin was approximately 21 years of age. All of them were quite young men and Edgar Wanganeen, Robin Wanganeen and Scott O’Loughlin particularly so.
I take the view, having regard to the seriousness of the offending when considered in its full context and the personal circumstances of the various appellants and their prior criminal records, that both Phillip Dudley and Greg Wanganeen should be treated more leniently than the other three. Of the other three, I take the view that Robin Wanganeen should be treated more leniently than either Edgar Wanganeen or Scott O’Loughlin. I also take the view that a prison sentence is warranted in each case. However, there being no prosecution appeal, the maximum for any prison term imposed can be no higher than six months. In any event, I have already indicated that in the case of each appellant, apart from perhaps Scott O’Loughlin, six months is too high.
Both Phillip Dudley and Greg Wanganeen have managed to stay out of trouble for quite some years. I agree with the Magistrate that each show good prospects for rehabilitation. It is the first time they have offended in this way. As already indicated, both personal and general deterrence are of significance. A relatively short prison sentence is warranted. I sentence both Greg Wanganeen and Phillip Dudley to three months imprisonment.
However, in each case that sentence of imprisonment will be suspended provided each enters into a bond to be of good behaviour for a period of two years in the amount of $500. Like the Magistrate, I would impose an additional penalty pursuant to section 110 of the Fisheries Management Act reduced to $8,000 with respect to both Phillip Dudley and Greg Wanganeen and, essentially, for the same reasons as explained by her Honour. I also would not interfere with her Honour’s imposition of a victims of crime levy and prosecution costs of $1,095 for each of Phillip Dudley and Greg Wanganeen.
However, in my view, the further order prohibiting each of Phillip Dudley and Greg Wanganeen from fishing for abalone, permanently or otherwise, is not warranted in their case. The legislation, of which they are now only too well aware, already prohibits them from taking abalone in excess of the recreational limits unless they are properly authorised under the Fisheries Management Act. Their particular circumstances do not warrant imposing on them a permanent prohibition from fishing for abalone on a strict recreational basis or in the event that they were able to satisfy the authorities that they are entitled to an appropriate authority under the Act.
As far as Robin Wanganeen is concerned, his personal circumstances suggest that a less lenient approach ought be taken. He has a more serious prior criminal record than either Phillip Dudley or Greg Wanganeen. I sentence him to four months imprisonment. However, unlike the Magistrate, I take the view that there is good reason to suspend that term of imprisonment and I would do so provided he were to enter into a bond to be of good behaviour for two years in the sum of $500.
Robin Wanganeen, whilst he has a concerning criminal record has not previously committed an offence of the nature presently under consideration. Further, he was very young at the time of the offending and there has been a considerable delay between the commission of the offence (30 December 2011) and the time of sentence in the Magistrates Court (2 December 2015) such as to give rise to a level of hardship should he now be incarcerated, a matter I discuss in more detail further below.

Like the Magistrate and for the same reasons she has given, I would impose an additional penalty on Robin Wanganeen reduced to $5,000 together with the victims of crime levy and the prosecution costs of $1,095. For the reasons explained earlier, I am not, in the case of Robin Wanganeen, prepared to make an order prohibiting him, permanently or otherwise, from fishing for abalone.
I turn now to Edgar Wanganeen. He has a materially relevant criminal record including a previous conviction for selling or purchasing fish where the fish had been taken without a licence. However, this prior fishing offence was committed as a youth and approximately three years before the offending presently under consideration. He was older than Robin Wanganeen at the time of the current offending but still very young. The fact that he is presently subject to a bond to be of good behaviour for the offence of robbery is also a factor relevant to prospects for rehabilitation, but the offence was committed prior to the current offence but not sentenced for until after.
Importantly, for the earlier offence of selling or purchasing fish without a licence, Edgar Wanganeen was given only a good behaviour bond and 100 hours of community service. It may well be that he was not fully apprised of just how serious offences committed under the Fisheries Management Act are to be regarded, given his very young age at the time and the moderate sentence imposed. His offending is to be treated more seriously than the three men with whom I have just dealt. I sentence him to five months imprisonment but, again, I am satisfied that there is good reason to suspend that prison term provided he were to enter into a bond to be of good behaviour for two years in the sum of $500.
I disagree with the Magistrate that simply because he had been convicted of an offence under the same Act when a youth “and therefore was warned by the Court regarding fishing of this kind” that one cannot be satisfied that he will not reoffend in a like manner. As I have indicated, the penalty imposed when he was a youth was so moderate as to disguise the seriousness with which this type of offending is regarded. The imposition of a suspended prison term is likely to have a very real deterrent effect and should bring home to Edgar Wanganeen the seriousness with which such conduct will be treated in the future. Furthermore, the delay in the resolution of the matter is relevant to the finding of good reason to suspend.
For the reasons given by the Magistrate I would also impose an additional penalty of $5,000 together with the victims of crime levy and the prosecution costs of $1,095. This being Edgar Wanganeen’s second offence of this or similar character, I prohibit him from fishing or gathering abalone for five years from today.
I turn now to Scott O’Loughlin. His offending when all of the circumstances are considered, should be treated as the most serious. His previous conviction for possessing a commercial quantity of fish of a priority species in August 2011 involved a very large quantity of abalone and occurred only some three or four months prior to his committing, essentially, the same offence on 30 December 2011. I impose the same penalties on Mr O’Loughlin as did the Magistrate, subject to the question of whether or not the six month prison term should be suspended and the prohibition order I make is limited to ten years.
I turn to the question of suspension. Mr O’Loughlin was still very young when he committed both of the Fisheries Management Act offences, about 21 years of age. Further, the penalty imposed for the offence committed in August 2011, being a bond to be of good behaviour and to be called up for sentence in the event of breach was, to my mind, insufficient to bring home to Mr O’Loughlin the seriousness of the offending. If, on the first occasion, Scott O’Loughlin had been sentenced to a short term of imprisonment but suspended, there could be little argument against revoking that suspension and imposing an additional prison term for the second offence (save for the question of delay to which I will come shortly). In those circumstances, Mr O’Loughlin would have been well and truly on notice that a further offence against the Act would most likely lead to a term of imprisonment.
Furthermore and as already indicated, I am concerned that the significant delay between the commission of the offence and the final resolution of the matter in the Magistrates Court (more than four years) was such as to generate a real hardship should any of the appellants, including Mr O’Loughlin, now be required to serve an immediate term of imprisonment. There has of course been further delay since the date of sentencing in the Magistrates Court (2 December 2015) and the resolution of this appeal.
Some of the authorities dealing with the issue of delay and particularly in the context of rehabilitation have been collected and discussed by Gray J in R v C, M.[53]
[53] [2014] SASCFC 62 at [13]-[20].
There is nothing of which I am aware to suggest that the delay in dealing with this matter was improperly or opportunistically caused by the appellants. Furthermore, none of the appellants including, in particular, Scott O’Loughlin has engaged in any further offending of significance during the period of the delay. This is a good indicator of their capacity and prospects for continued rehabilitation. As the Court of Criminal Appeal in Western Australia in Duncan v The Queen[54] observed:
[W]here prior to sentence there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from [a defendant] the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation.
[54] (1983) 9 A Crim R 354 at 356.
This factor of delay is of significance with respect to all the appellants and adds to the case in favour of finding good reason to suspend Mr O’Loughlin’s prison term. He is still a relatively young man. He has not yet spent time in prison and, leaving aside his earlier conviction under the Fisheries Management Act, he does not have a prior criminal record of any significance. Others have spoken highly of him and particularly as to the manner with which he deals with traditional Aboriginal people. He has respect for his elders. He has enjoyed employment in the past and has the prospect of resuming employment with a previous employer in Ceduna once this matter were to be resolved. In my view, Mr O’Loughlin’s circumstances are such as to call for a merciful intervention by the Court. To require him to spend six months or even a lesser period in custody now would be highly likely to cause significant damage to his employment prospects and to seriously retard his continued rehabilitation and prospects for leading a law abiding life into the future. When these matters are weighed against the seriousness of the offending, as properly to be understood, and the important role of personal and general deterrence, I am satisfied that there is good reason to suspend Scott O’Loughlin’s prison term. I propose to do so provided he were to enter into a bond to be of good behaviour for two years in the sum of $500.
I am satisfied that the imposition of suspended prison sentences, even of relatively short duration, and of the additional penalties in the amounts that I have ordered will have a significant personal and general deterrent effect with respect to all appellants. In the circumstances of this matter, it would be quite counter-productive to order the imprisonment of any of the five appellants some four and a half years or more after the offences were committed.
Conclusion
I make the following orders. In doing so, I note that there has been no appeal against, and no occasion to interfere with the Magistrate’s sentence, with respect to the earlier offence committed by Scott O’Loughlin dealt with following the breach of bond.
1.The time for each appellant to appeal against his conviction and against his sentence is extended, in the cases of Scott O’Loughlin, Robin Wanganeen and Edgar Wanganeen until 29 January 2016 and in the cases of Gregory Wanganeen and Phillip Dudley until 16 February 2016.
2.The appeals against conviction by all appellants are dismissed.
3.The appeals against sentence by all appellants are allowed and the sentences imposed by the Magistrate are set aside.
4.A conviction is to be recorded with respect to each appellant.
5.The appellant, Phillip Dudley, is resentenced as follows:
5.1imprisonment for three months to be suspended upon his entering into a bond to be of good behaviour for two years in the amount of $500;
5.2an additional penalty pursuant to section 110 of the Fisheries Management Act of $8,000; and
5.3the victims of crime levy, prosecution costs of $1,095 and forfeitures ordered by the Magistrate are confirmed.
6.The appellant, Greg Wanganeen, is resentenced as follows:
6.1imprisonment for three months to be suspended upon his entering into a bond to be of good behaviour for two years in the amount of $500;
6.2an additional penalty pursuant to section 110 of the Fisheries Management Act of $8,000; and
6.3the victims of crime levy, prosecution costs of $1,095 and forfeitures ordered by the Magistrate are confirmed.
7.The appellant, Robin Wanganeen, is resentenced as follows:
7.1imprisonment for four months to be suspended upon his entering into a bond to be of good behaviour for two years in the amount of $500;
7.2an additional penalty pursuant to section 110 of the Fisheries Management Act of $5,000; and
7.3the victims of crime levy, prosecution costs of $1,095 and forfeitures ordered by the Magistrate are confirmed.
8.The appellant, Edgar Wanganeen, is resentenced as follows:
8.1imprisonment for five months to be suspended upon his entering into a bond to be of good behaviour for two years in the amount of $500;
8.2an additional penalty pursuant to section 110 of the Fisheries Management Act of $5,000;
8.3the victims of crime levy, prosecution costs of $1,095 and forfeitures ordered by the Magistrate are confirmed; and
8.4prohibited from fishing for or gathering abalone for a period of five years from today, 2 September 2016.
9.The appellant, Scott O’Loughlin, is resentenced as follows:
9.1imprisonment for six months to be suspended upon his entering into a bond to be of good behaviour for two years in the amount of $500;
9.2an additional penalty pursuant to section 110 of the Fisheries Management Act of $8,000;
9.3the victims of crime levy, prosecution costs of $1,095 and forfeitures ordered by the Magistrate are confirmed; and
9.4prohibited from fishing for or gathering abalone for a period of ten years from today, 2 September 2016.