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Hemming v Mundy

Hemming v Mundy

Case [2001] SASC 105 12 April 2001

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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…

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

AGLC: Hemming v Mundy [2001] SASC 105
Case: [2001] SASC 105
Decision Date: 12 April 2001

CaseChat Overview and Summary

The case of Hemming v Mundy involves an appeal against the decision of a Magistrate in the South Australian Magistrates Court. The respondent, Mundy, was charged with three offences under the Fisheries Act 1982, to which he pleaded guilty on one count and not guilty on the others, asserting a Proudman v Dayman defence. The Magistrate rejected the defence and found Mundy guilty on two counts, imposing a fine of $800 without recording convictions. The appellant argues that the Magistrate erred in not recording convictions, resulting in the failure to impose the mandatory penalty under section 66 of the Fisheries Act. The appeal raises the issue of whether the Magistrate correctly exercised her discretion under section 16 of the Criminal Law (Sentencing) Act 1988 to impose a penalty without recording a conviction, particularly in light of the mandatory penalty prescribed by section 66 of the Fisheries Act.

The court examined the relevant statutory provisions and previous case law, particularly Glover v Haseldine and Glover v Romanowcyz, which held that section 16 of the Sentencing Act could not be used to avoid the mandatory penalty prescribed by section 66 of the Fisheries Act. However, the court noted the amendment to section 16 in 1991, which removed the words “but no other penalty” and added a reference to community service orders. This amendment suggested that Parliament intended to allow the operation of section 16 even when an additional penalty was imposed. The court concluded that the existence of a mandatory penalty should not prevent the operation of section 16, as long as the penalty proposed for the offence itself was within the prescribed constraints.

In evaluating the Magistrate’s decision, the court found that the Magistrate did not err in declining to record a conviction. While the court acknowledged that the Magistrate placed significant emphasis on the administrative arrangements under the Commonwealth regime, it held that this did not influence her decision improperly. Instead, the court interpreted the Magistrate’s remarks as emphasizing the extenuating circumstances of Mundy’s conduct, including his honest belief, efforts to comply with the law, and prompt notification to authorities. The court held that these factors could justify the exercise of the discretion under section 16, and it was not persuaded that the Magistrate misapplied the law or took into account impermissible factors.

The appeal was dismissed, affirming the Magistrate’s decision to impose a penalty without recording a conviction. The court emphasized that while leniency is the exception, the combination of extenuating circumstances in this case supported the Magistrate’s decision. The court did not find that the extent of the leniency was outside the range of her discretion.

Orders