Hemming v Dale No. Scciv-02-29 - [2002] SASC 40

HEMMING v DALE
[2001] SASC 40
Magistrates Appeals: Criminal (ex tempore)

DOYLE CJ: This is an appeal against sentence. The respondent pleaded guilty to a charge on complaint alleging that he engaged in a fishing activity of a prescribed class, namely, an activity described in para.42 of Schedule 1 of the Fisheries (General) Regulations 2000, contrary to s41 of the Fisheries Act and regulation 5 of the Regulations referred to.
In simple terms, the respondent was found at sea fishing for shark with a net about 2,115 m long, which was about 315 m longer than the permitted length. The Magistrate did not record a conviction, exercising his power not to do so, under s16 of the Criminal Law (Sentencing) Act (“the CSA”). He fined Mr Dale $500 and ordered forfeiture of the net and of the sharks, worth about $310, that were in it.
Recording a conviction would have had a certain consequence. The respondent would then have been liable to a further penalty of five times the value of the shark in the net - namely, $1550. It seems the Magistrate was told that the conviction would be recorded also on the licence of the owner of the boat, or the licence for the boat. It must have been a reference to the licence of the owner of the boat, because I am told now that the owner of the boat was, in fact, the respondent. The Magistrate was also told that this would reduce the value of the holder’s licence because of penalties that apply if three convictions are recorded against a licence.
It appears that that submission was in error, and that this particular consequence of a conviction did not, in fact, exist. I refer, in that context, to the provisions of s56(2) of the Fisheries Act.
The Magistrate apparently gave brief reasons for his decision, but these have not been recorded by the Magistrates Court. From what I am told, it is likely that the Magistrate made a number of comments in the course of submissions that would have given some insight into his reasoning, and then made some closing remarks.
The decision to record, or not to record, a conviction, in matters under the Fisheries Act, is a significant one. It is desirable that Magistrates have their reasons for such decisions recorded, even though the reasons may be quite brief. I should add that solicitors and counsel appearing before Magistrates in cases like this should also make a proper note of the Magistrate’s reasons, in case they are not recorded officially, if it seems there is a risk that the reasons will not be recorded.
The affidavit filed by counsel who appeared for the appellant before the Magistrate identifies two matters as having been referred to by the Magistrate when he apparently gave some concluding reasons. They are that the respondent had no intention to catch more fish than he should have caught, and the adverse effect on the boat owner if…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2002] SASC 40
Decision Date: 7 February 2002

CaseChat Overview and Summary

In the case of Hemming v Dale, the appellant, Hemming, appealed against the sentence imposed on the respondent, Dale, by the Magistrate. The respondent was found guilty of fishing for shark with a net that was significantly longer than the permitted length, in violation of the Fisheries (General) Regulations 2000. The Magistrate fined Dale $500 and ordered the forfeiture of the net and the sharks caught, but chose not to record a conviction. The appeal focused on whether the Magistrate’s decision not to record a conviction was lawful and appropriate.

The legal issue at the heart of this appeal was whether the Magistrate had the authority to exercise discretion under s16 of the Criminal Law (Sentencing) Act to impose a penalty without recording a conviction, and if so, whether the Magistrate correctly applied this discretion. The relevant statutory provision allows for a conviction not to be recorded if the court is satisfied that the offender is unlikely to commit the same offence again and that there are extenuating circumstances justifying leniency.

The court examined whether the Magistrate’s decision to not record a conviction was based on proper grounds. The Magistrate mentioned that Dale had no intention to catch more fish than permitted and considered the potential adverse impact on the boat owner's licence. However, the court found that the intention not to catch more fish was irrelevant, as the offence hinged on the length of the net used. Additionally, the impact on the boat owner's licence was deemed an improper consideration, as it was a consequence of the decision rather than a factor in determining the penalty.

The court concluded that the Magistrate's decision could be supported if it was based on the respondent's good character and financial difficulties. The court found that these factors were relevant and could justify the decision not to record a conviction. The appeal was dismissed because it was plausible that the Magistrate had exercised his discretion correctly by considering appropriate factors. The court underscored the importance of recording reasons for significant decisions, both by the court and legal representatives.

Orders