Hemming v Mundy

HEMMING v MUNDY
[2001] SASC 105
Magistrate’s Appeal

MARTIN J. The respondent was charged with three offences against the Fisheries Act 1982. He pleaded guilty to one count and not guilty to the remaining counts on the basis that he had a Proudman v Dayman defence. The Magistrate rejected that defence and found the two charges proved. Her Honour declined to record convictions on any count and, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”), she imposed a single penalty, namely, a fine of $800. The appellant appeals on the basis that the Magistrate erred in failing to record convictions and, as a consequence, in failing to impose a mandatory penalty which is fixed by s 66 of the Fisheries Act. There is no appeal against the adequacy of the fine.
The respondent holds a Master Class 3 Skipper’s ticket. He was employed in that capacity by Australian Fishing Enterprises Pty Ltd (“AFE”). At the relevant time AFE had an agreement with a licensed fisher, Mr Makris, to fish his pilchard quota. AFE was able to lease the quota because Mr Makris had obtained an exemption which allowed someone other than him to fish for his quota of pilchards. The quota was fixed at 335.09 tonnes. The exemption stated that the fisher may transfer “uncaught units of quota” and a copy of the exemption was provided to the respondent.
Pursuant to the agreement and the exemption, AFE fished for pilchards with the respondent as skipper of the fishing vessel. At the time of the offences, only approximately 25 tonnes of the quota remained uncaught. On the occasion in question, the catch which was landed was the result of a third attempt at netting. It was only once the net had been pulled alongside the vessel that the respondent had an opportunity to view the catch and attempt an estimate of its size. It was readily apparent to him that the catch was well in excess of the remaining quota. He ordered that 25 tonnes be landed on the vessel and that the rest of the catch be left in the net alongside the boat. The respondent contacted a Mr Turner, the Manager of AFE, and sought advice as to what he should do with the excess catch. Shortly after that call, Mr Turner contacted the respondent by telephone and advised him that the catch should be landed as he had arranged for the excess to be taken under the quota of a Mr Lukin. Acting on that advice, the respondent completed landing the fish and proceeded to shore. Prior to landing the remaining fish, those fish were dead.
The advice given by Mr Turner was incorrect. The terms of the exemption did not permit the transfer of the balance of the catch to the quota of Mr Lukin. If the respondent had wished to be able to fish under the auspices of another quota, an exemption to that effect had to be obtained before the catch was landed.
After the respondent had landed the balance of the catch, he returned to Port Lincoln. On his way in he contacted a Pilchard Fishery Quota Monitor, Mr Rowlings. The respondent advised Mr Rowlings that he had 50 tonnes of pilchards on board and that he had been in touch with someone in Port Lincoln about the additional amount of the catch. He advised Mr Rowlings that he had been told that Mr Lukin would cover the extra and that he would be unloading at 6.30 am. Not surprisingly, when the respondent unloaded the catch Fisheries Compliance Officers became involved and the excess catch was seized.
The Magistrate accepted the evidence of the respondent that he believed the fish he landed were all covered by quota being either that leased by AFE from Mr Makris or that owned by Mr Lukin and transferred to AFE. He believed it was the practice in the industry that when a catch is landed which exceeds a quota, arrangements can be made for the excess to be covered by other quotas. The respondent conceded that he had not really understood the exemption which had been given to him and that he relied almost wholly on Mr Turner to deal with quota problems as and when they arose. Although he had been engaged in professional fishing in the tuna industry for about seven years, the fishing of Mr Makris’ quota had been his first experience of fishing for pilchards and his first experience of fishing in the State regulated portion of the industry.
The respondent was familiar with the Commonwealth management system which operates in the tuna industry. He gave evidence that it was the practice within that industry to cover a catch landed in excess of a quota by arranging for the excess to be absorbed by another quota. The Magistrate observed that within the Commonwealth controlled industry there exists a degree of practical commonsense which is exercised by the managing authority. Flexibility is permitted in order to ensure that catches can be covered by quotas held by other fishers provided that arrangements are made within a reasonable time. Although a catch in excess of a quota is illegal in the Commonwealth controlled industry, an opportunity is given within that industry to cover the excess by arrangements with other quota holders.
Against that background, penalty was to be imposed for three offences. The first offence was the contravention of a condition of the exemption through exceeding the quota by 19914 kilograms, contrary to s 59(4) of the Fisheries Act. The maximum penalty was a fine not exceeding $4000.
The second count also charged a contravention of the exemption. A notice of the exemption was published in the South Australian Government Gazette on 6 August 1999. The respondent breached the condition of the exemption that required him to have a copy of the notice in his possession and to produce that notice to a Fisheries Officer forthwith if requested to do so.
The third count charged the appellant with having in his possession for the purposes of sale fish taken in contravention of the Act contrary to s 44(2)(a) of the Fisheries Act. That charge related to the 19914 kilograms of pilchards taken in excess of the quota. The maximum penalty was a fine not exceeding $8000.
The wholesale value of the pilchards taken in excess of the quota was $12944.10. Section 66 of the Fisheries Act requires that if a person is convicted of an offence against the Act involving fish taken in contravention of the Act, in addition to any other penalty prescribed by the Act, the court must impose a penalty equal to five times the wholesale value of the fish or $30000, whichever is the lesser amount. If the appellant had been convicted of the third count, therefore, subject to the application of ameliorating provisions in the Sentencing Act, the court was required to impose an additional penalty of $30000.
The Magistrate accepted that the respondent was honest in his evidence. Her Honour took into account that the respondent has no prior convictions and is a professional fisherman who relies on the industry for his existence. She observed that, in hindsight, the respondent should have been more careful and that one would have expected AFE, being one of the biggest fishing enterprises in the Southern Hemisphere, to have been more careful. Her Honour remarked that if the respondent had been fishing under the Commonwealth regime, he would not have been prosecuted. She commented that within the Commonwealth industry there is “a far more practical commonsense attitude”. The Magistrate made the following observations:
“The state law, I am told, would have required Mr Mundy to simply dump the fish that were in excess of the quota. Dumping of dead fish would have meant that they would have just followed the tide, as Mr Coates said, and ended up on a beach somewhere causing significant panic within the community.
What Mr Mundy did was sensible, practical, covered quotas, did not result in any damage whatsoever to the pilchard industry at the time, which I am assured had been under-fished, and he did something which he in all honesty assumed was the way the system worked.
Unfortunately for him, the State system does not work in the sensible, logical way that the Commonwealth authorities have obviously been operating for some time.”
Those remarks were followed with an observation that the State system which would require the obtaining of an extra quota prior to setting out to sea in order to cover any potential excess fish is a “very convoluted way of going about what the Commonwealth have done in a very simple, straightforward and apparently effective manner.”
The Magistrate found that the respondent had “been brought to earth with a thud in relation to this prosecution” and that the respondent was the sort of person who would never repeat this sort of mistake. After noting that the respondent has no prior convictions, her Honour concluded that “all this” amounted to “sufficient justification” for not recording a conviction.
As mentioned, relying on s 16 of the Sentencing Act, the Magistrate declined to record a conviction. Section 16 is in the following terms:
“Imposition of penalty without conviction
16.    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.”
In the proceedings before the Magistrate, it appears to have been assumed that if the conditions in s 16(a) and (b) were satisfied, the power to impose a penalty without recording a conviction was enlivened. In this Court, however, the Crown submitted that s 16 had no application and argued that the power in s 16 cannot be used to avoid the operation of s 66 of the Fisheries Act. In substance, counsel contended that the additional penalty imposed by virtue of s 66 does not amount to a fine for the purposes of s 16 of the Sentencing Act. In those circumstances, because s 66 of the Fisheries Act requires that, on conviction, the court impose a penalty other than a fine or sentence of community service, s 16 was inapplicable.
The application of s 16 of the Sentencing Act in view of the additional penalty fixed by s 66 of the Fisheries Act was considered by Jacobs J in Glover v Haseldine (1990) 48 A Crim R 118. At that time the wording of s 16 was different. It was in the following terms (and I have highlighted the words that were deleted in 1991):
“16. Where a court finds a person guilty of an offence for which it proposes to impose a fine (but no other penalty) and the court is of the opinion ...”.
Jacobs J said (p 121):
“That section [section 16] in my judgment can only be invoked when the penalty to be otherwise imposed for the offence in question is a fine, but no other penalty, and it is in my judgment impossible to characterise the additional penalty imposed by s 66 of the Fisheries Act simply as a fine.”
His Honour then set out s 66 of the Fisheries Act which refers to the mandatory amount to be paid as a “penalty”. Jacobs J continued (p 122):
“The use of the word “penalty” in that section is not synonymous with the word “fine”. No doubt it includes a fine but the Fisheries Act prescribes other penalties as well, e.g. the forfeiture of the fish illegally taken, or forfeiture of a licence. The payment to be ordered under s 66 is in short not a fine, but an additional penalty on conviction, and the power in s 16 of the Sentencing Act to impose a fine without conviction is only available when the offence carries no other penalty in addition to the fine.”
Jacobs J maintained that view in Glover v Zouroudis (1990) 54 SASR 200. His Honour’s reasoning and conclusion were approved by White J in Glover v Romanowcyz (1991) 55 SASR 524. White J said (p 527):
“With respect, I agree with his Honour’s reasons. Section 16 of the Sentencing Act speaks in terms of what “it” (the court) proposes to do by way of sentencing the offender. It is implicit in what Jacobs J was saying that a court would not be exercising a proper judicial discretion if it “proposes” to ignore the planned legislative intention to insist, within reason, on the penalty [fixed by section 66] totalling five times the value of the catch and forfeiture of the equipment such as a boat and craypots when an offence has been committed. Section 16 cannot be used as a device for “proposing” to not record a conviction under section 16 of the Sentencing Act.”
The decisions in Glover v Haseldine and Glover v Romanowcyz had the effect of strictly circumscribing the ambit of the operation of s 16. Not only did mandatory additional penalties, including additional monetary penalties, licence disqualification and forfeiture, prevent the operation of s 16, but if the court imposed an additional penalty of any description in the exercise of the sentencing discretion, s 16 was inapplicable.
Section 16 of the Sentencing Act was amended by the Statutes Amendment (Criminal Law Sentencing) Act 1991. The words “(but no other penalty)” were deleted and the words “a sentence of community service, or both” were inserted. In Clark v Glover (1992) 58 SASR 571 Perry J observed that, in view of the amendment, the decisions in Glover v Haseldine and Glover v Romanowcyz must now be regarded as open to question in so far as they might be thought to govern the operation of s 16 vis-a-vis s 66 of the Fisheries Act. In the absence of submissions concerning the authorities, in Hemming v Perkins (1990) 74 SASR 307 at 325 I indicated that I shared the reservations expressed by Perry J.
In my opinion, the deletion in 1991 of the words “but no other penalty” is significant. In its original form, the words “but no other penalty” in s 16 encompassed a penalty additional to the penalty prescribed for an offence. If Parliament had intended in 1991 to widen the operation of s 16 only to the extent of including those matters in which a sentence of community service was imposed, the mere addition of reference to community service orders would have achieved that limited purpose. In that event it would have been unnecessary to remove the words “but no other penalty”. In choosing to delete the words “but no other penalty”, in my opinion Parliament evinced an intention that the imposition of a penalty additional to the penalty prescribed for an offence should not prevent the operation of s 16.
It is necessary to have regard to the scheme of the relevant provisions of the Sentencing Act and the particular purpose of s 16. Division 2 of the Sentencing Act is concerned with general sentencing powers. Sections 15-18 are ameliorating provisions which enable the court in identified circumstances to extend leniency. The power to extend leniency is circumscribed by s 20 which provides that nothing in Division 2 derogates from a provision of a special Act that expressly prohibits the reduction, mitigation or substitution of penalties or sentences. There is no provision in the Fisheries Act that contains such an express prohibition.
Section 15 enables a court to dismiss a charge without recording a conviction if the court is of the view that the offence is so trifling that it is inappropriate to impose any penalty. Section 17 empowers a court to reduce a penalty below the minimum prescribed for an offence if the court, having regard to matters identical to those specified in s 16(b), is of the opinion that good reason exists for reducing the penalty below the minimum. Section 18 is a general power that enables the court to depart from a penalty provided by a special Act if the court thinks that good reason exists for such a departure. The extent of the departure is identified, but no other criteria need to be satisfied before the power is enlivened.
A further power to decline to record a conviction and to sentence without imposing a penalty is found in s 39. The court may, if it thinks that good reason exists for doing so, discharge an offender with or without recording a conviction and without imposing a penalty upon condition that the offender enter into a bond. This power is circumscribed by s 37 which provides that the power in s 39 is not exercisable in relation to an offence in respect of which a special Act expressly prohibits the reduction, mitigation or substitution of penalties or sentences: Janz v Woolven (1990) 55 SASR 329.
Leaving aside Murder and Treason, the powers in ss 15-18 and s 39 are capable of being enlivened for any offence, regardless of the maximum penalty. However, when the provisions of the Sentencing Act are viewed in their entirety, Parliament appears to have had the gravity of the criminal conduct in mind when providing courts with the power not to record a conviction. If the offence is so trifling that the court considers it is inappropriate to impose any penalty, the court may dismiss the charge without recording a conviction: s 15. The power in s 39 is enlivened if the court thinks that good reason exists for discharging an offender without imposing a penalty upon condition that the offender enter into a bond. Thus it is only in respect of matters in which the gravity of the criminal conduct permits a discharge without imposing a penalty that the court could exercise the power in s 39 not to record a conviction.
Section 16 permits the court to exercise the power not to record a conviction in circumstances where the court proposes to impose a fine or community service or both for the particular offence. This allows for the exercise of the power where the gravity of the offending is more serious than the offending which would permit the use of the power in either of ss 15 or 39. Viewed in this way, the operation of s16 is circumscribed by the gravity of the offending as reflected in the penalty of a fine or community service or both.
Section 16 is one of a number of remedial provisions and it should be construed beneficially: Bull v Attorney-General (NSW) (1913) 17 CLR 370 at 384. The first question to be asked is whether s 20 prevents the operation of s 16. If the answer to that question is in the negative, the court must then consider the penalty that it proposes to impose for the offence of which the person has been found guilty. The penalty the Court “proposes” to impose for that offence is the penalty fixed within the constraints of the maximum penalty prescribed for that particular offence. The possibility of a penalty additional to that prescribed for the offence is irrelevant in determining the penalty the Court “proposes” to impose for the offence, regardless of whether the additional penalty must be imposed by force of legislation or is an additional penalty that the court imposes by way of discretion.
In my view, this interpretation accords with the ordinary and natural meaning of the words and best achieves the remedial objects of s 16. It is an interpretation that accords with the 1991 removal from s 16 of the words “but no other penalty”. On the other hand, if the alternative view was correct, the existence of a mandatory penalty such as that prescribed by s 66 of the Fisheries Act or a decision to impose an additional penalty by way of licence disqualification or forfeiture would dictate that s 16 was inapplicable. This interpretation would unduly restrict the ambit of the operation of s 16 and it would work injustice. For example, a relatively minor offence might attract a mandatory additional penalty or a discretionary additional penalty such as forfeiture and, notwithstanding the minor nature of the offence, the court would be obliged to record a conviction.
During submissions, reference was made to Janz v Woolven. The Full Court held that, by virtue of ss 20 and 37 of the Sentencing Act, ss 16 and 39 were inapplicable in respect of a minimum penalty of licence disqualification prescribed by the Road Traffic Act 1961. Sections 20 and 37 prevented the operation of ss 16 and 39 because the Road Traffic Act specifically provided that the minimum period of disqualification could not be reduced or mitigated or substituted by any other penalty unless the court was satisfied, by evidence given on oath, that the offence was trifling. There is no such prohibition in the Fisheries Act. Sections 20 and 37 are, therefore, inapplicable and the reasoning in Janz v Woolven has no application to the circumstances of the respondent.

In the matter under consideration, the power in s 16 was enlivened. Did the Magistrate err in exercising that power?
The Magistrate found that the respondent is unlikely to commit such an offence again. The respondent is undoubtedly a person of good character. However, these matters are no more than conditions precedent to the exercise of the discretion given under s 16. They did not give the respondent a right to leniency in this regard: Piva v Brinkworth (1992) 59 SASR 92 at 96. In addition, the power found in s 16 has a restricted application in respect of regulatory offences and breaches of social legislation: Hemming v Lukin (1996) 67 SASR 248 at 251; Hemming v Perkins at 320.
Counsel for the appellant submitted that the Magistrate erred in failing to have proper regard to the fact that the offending was a breach of regulatory legislation. However, I am not prepared to draw that inference. While her Honour did not specifically refer to this issue, it does not follow that she disregarded it. The significance of the regulatory nature of offences for the purposes of sentence has been emphasised in numerous authorities over many years. Her Honour is an experienced Magistrate and this is not the first occasion on which she has dealt with breaches of the Act. The failure to mention this issue does not justify an inference that her Honour failed to have regard to it.
The appellant submitted that the Magistrate erred in allowing herself to be influenced by what she perceived was the cumbersome and impractical nature of the State arrangements in comparison with those operating under the Commonwealth regime. Her Honour was clearly unimpressed with the State arrangements. She specifically took into account that although the respondent would have committed an offence under Commonwealth law, he would not have been prosecuted because of the practical administrative arrangements that are in place.
If the Magistrate had allowed her adverse view of the administration of the State laws to influence her decision, she would have been in error. The emphasis which she gave to this issue has caused me some concern. However, her Honour’s remarks are to be viewed against the background of the respondent’s understanding of the manner in which the Commonwealth system is administered. His understanding in that regard, and the similar understanding possessed by the Manager of AFE, resulted in the respondent making the mistake of landing the additional fish. In my opinion, while it would have been preferable if her Honour had not given so much emphasis to her adverse view of the State administrative arrangements, she was not indicating that her adverse view was significant in fixing the penalty. Her Honour compared the State and Commonwealth arrangements in order to emphasise the extenuating circumstances attaching to the respondent’s unlawful conduct. I am not prepared to infer the error for which the appellant contended.
In my opinion, when the Magistrate spoke of “all this” as sufficient justification for not recording a conviction, her Honour had in mind not only the prior good character of the respondent and her view that he was unlikely to commit another offence, but also the extenuating circumstances attaching to the unlawful conduct of the respondent. Her Honour acknowledged the difficult situation in which the respondent was placed. It was proper to do so. In the comfortable surroundings of a court, it is not always easy to appreciate the difficulty faced by those on the ocean in the middle of a fishing operation. The respondent was not able to determine the size of the catch until it was alongside the vessel. When he realised that he had a catch in excess of the quota, he sought advice and relied upon the erroneous advice he was given. The respondent did not deliberately take fish in contravention of the Act. The respondent’s unlawful conduct in landing the balance of the catch did not cause any further damage to fishing stocks than had already been caused through catching the fish in the net. Importantly, the respondent advised the authorities of the circumstances prior to returning to Port Lincoln.
The attempts by the respondent to comply with the law are to be contrasted with the lack of effort by the offender in Hemming v Lukin. The efforts by the respondent, together with his belief and advice to the authorities, amounted to extenuating circumstances that could properly be taken into account by the Magistrate in determining whether good reason existed for not recording a conviction. I interpret her remarks as meaning that she had regard to those matters.
Those working within the fishing industry must understand that they have a responsibility to ensure that they are fully aware of the conditions under which they are permitted to operate. It is not sufficient to merely plead ignorance of those conditions when offences are committed. The importance of protecting a most valuable resource and the strictness of the liability that attaches to those who operate pursuant to licences and exemptions should not be underestimated. Leniency is the exception.
In the matter under consideration the Magistrate extended considerable leniency to the respondent. I doubt that I would have extended the same leniency, but that is not the test on appeal. I am not satisfied that her Honour misapprehended any relevant principle or fact or that she took into account a matter to which she was not entitled to have regard. If her Honour had allowed the existence of the mandatory penalty required by s 66 in the event of a conviction to influence her decision not to impose a conviction, she would have been in error. Such consequences are irrelevant in determining whether it is appropriate to exercise the power in s 16. However, there is nothing in the material before me to suggest that her Honour allowed that consequence to influence her.
In my view, the combination of circumstances to which I have referred was capable of supporting a finding that good reason existed for not recording a conviction. I am not satisfied that the extent of the leniency exercised by her Honour was outside the range of her Honour’s discretion.
The appeal is dismissed.

[2001] SASC 105

12 April 2001