Hemming v Dale No. Scciv-02-29

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 a conviction were recorded. Again, it may be the adverse effect on the licence holder, rather than the boat owner. For clarity, I add here that the respondent was using, quite legally as I understand it, another person’s licence.
Section 16 of the Sentencing Act provides as follows:
“Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both, and the court is of the opinion-
(a)     that the defendant is unlikely to commit such an offence again, and
(b)     that, having regard to-
(i)     the character, antecedents, age, or physical or mental condition of the defendant; or
(ii)    the fact that the offence was trifling; or
(iii)   any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.”
I should add that the solicitor who appeared before the Magistrate for the respondent has filed an affidavit setting out in detail the submissions made in mitigation, and counsel who appeared for the appellant has also filed an affidavit outlining his submissions. I am therefore satisfied that I have before me, in substance, all of the material that the Magistrate had before him.
Section 16 could apply only if the Magistrate was satisfied that the respondent was unlikely to commit such an offence again. On the information before him, which I will not repeat, it was open to the Magistrate to so find. I consider that I would have made the same finding. The Magistrate then had to consider the matters set out in sub-para (b).
The respondent had been fishing for about 20 years and had no recorded convictions. In light of this, the Magistrate could readily have decided that the respondent was a man of good character, and that this good record entitled him to consideration for leniency. There were also character witnesses present in court before the Magistrate who, I understand, were not called because the complainant acknowledged that the respondent was a man of good character. Accordingly, this particular requirement, the relevant requirement of character, in the sense of good character, was made out.
I do not consider that the offence could have been regarded as trifling.
I do consider that the Magistrate was entitled to find that there were extenuating circumstances. The respondent’s submission, which it appears the Magistrate accepted, was that the respondent was in the course of removing a defective section of net. Unwisely, knowing that the section of the net was defective, instead of returning to shore and doing this on dry land, the respondent did it while fishing. I am prepared to assume that returning to shore, which was obviously the wiser course, would have been at some cost to the respondent and considerable inconvenience.
Instead, what the respondent did was to attach a new length of net before he removed the defective section. Assuming the Magistrate accepted this submission, it indicates that the damaged section of net would have been removed, once the net was re-wound back on to the boat. There would have been only a temporary use of the excessive length, although Ms Cole quite rightly points out that, even if the approximately 200 m of damaged net were removed, the net apparently still would have been 100 m over. However, again I note Mr Edwardson’s submission that the measurements with which I am dealing are not precise, and this should not be treated as necessarily the case.
I do not have any information in the affidavits about the relative cost of returning to shore, nor is it clear to me why the respondent did not, before travelling any distance from Port Lincoln, engage in a similar process in the water. I appreciate that, technically, that would still be fishing, but one would think under such circumstances it is unlikely there would have been a prosecution.
Apart from all that, the Magistrate was entitled to find, on the submissions before him, that the respondent was in very difficult financial circumstances. This was relevant, although I consider not of much weight at all. It follows that there were matters that gave a basis for a decision not to record a conviction.
It does not follow that that decision was the right decision. If the qualifying factors are present, it is then a matter of weighing up all relevant matters and coming to a balanced decision. In this respect, I respectfully agree with and adopt the approach taken by Martin J in Hemming v Mundy [2001] SASC 105 and, in particular, at [30]-[33].
As I mentioned, the appellant’s affidavit refers to two matters relied on by the Magistrate. I do not regard the intention not to catch more fish than the respondent should have caught as of any weight at all. For good reason, the regulations specify a maximum length for a net, and the offence lies in the failure to observe the limit. The longer the net, the greater the catch is likely to be. The subjective intention of the fisherman is neither here nor there.
I also consider, although I do not have to decide it, that the impact on another person’s licence probably should also have been ignored. The impact, if it occurs, would be a consequence of the decision made in relation to the respondent. It is a consequence dictated by the Fisheries Act. It would confuse the sentencing process if the consequences for another person being a licence holder were taken into account. But, as I said, I do not have to decide this point, because it is common ground that it was an error to tell the Magistrate that this particular consequence would occur.
To my mind, the decision in relation to the respondent must be based on matters affecting him, and not on the impact of the result on another licence holder.
I now summarise the position.
There were grounds on which the Magistrate was entitled to decide as he did, and if he relied on what I will call the positive matters that I have identified, he would not have erred. Despite the caution called for before using s16 in a fisheries case, at least in relation to a regulatory offence, as to which I refer to my own decision in Hemming v Lukin (1996) 67 SASR 248 at 251, a decision based on these matters could not be said to be wrong. On the other hand, if the Magistrate relied wholly or substantially on the matters just dealt with by me as not being relevant, it was in error, and I would then have to consider the matter afresh.
In the circumstances, I will take the merciful course and assume that the Magistrate relied mainly on the matters on which he was entitled to rely. It would be hard on the respondent to assume that the two matters identified by the respondent, and which I have found to be inadequate to support the decision, were the only matters relied on, or the main matters relied on.
It seems fairer, as no-one has been able to provide a summary of the reasons, to consider whether there were grounds on which the Magistrate’s decision could be supported, and whether these are, putting it broadly, grounds of substance. I am looking at all of the matters before the Magistrate and asking myself whether, if he reached his decision on the matters that I regard as relevant matters, the decision could be said to be wrong.
In my opinion, if the Magistrate had come to his conclusion on the matters that I have identified as being relevant, it could not be said that the decision was wrong. It is not, of course, for me to exercise the discretion afresh at this stage, but to consider whether, on the basis of the matters identified before me, it was open to the Magistrate to reach the decision that he did. In my opinion, it was open to him to reach that decision.
For that reason, I dismiss the appeal. I again emphasise the desirability of a Magistrate making a record, even a brief record, of reasons for decision when matters of significance are being decided, and I also emphasise the desirability of legal representatives doing so, if it is uncertain whether the reasons will be recorded. Accordingly, the appeal is dismissed.
I order that the appellant pay the respondent’s costs of the appeal, fixed at $150.

[2002] SASC 40

7 February 2002