Howard v DIETMAN - [2011] SASC 51

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HOWARD v DIETMAN
[2011] SASC 51
Judgment of The Honourable Justice Sulan
11 April 2011
PRIMARY INDUSTRY - FISH - OFFENCES - TAKING OR POSSESSING UNDER PRESCRIBED WEIGHT OR SIZE
PRIMARY INDUSTRY - FISH - SHELLFISH
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appellant pleaded guilty to two offences of selling undersized southern rock lobster - appeal against sentence - whether the penalties imposed in their totality were manifestly excessive - whether the Magistrate erred in treating both offences as equally serious - whether the Magistrate erred in refusing the appellant's application not to record a conviction - offences were not equally as serious - overall penalty manifestly excessive.
Fisheries Management Act 2007 (SA) s 72(2), s 72(2)(c), s 100, s 110(3); Criminal Law (Sentencing) Act 1988 (SA) s 16, s 18A; Fishers Act 1992 (SA) (repealed); Expiation of Offences Act 1996 (SA) s 15(4), referred to.
Piva v Brinkworth (1992) 59 SASR 92; Cutting v Glover (1987) 135 LSJS 35, considered.

HOWARD v DIETMAN
[2011] SASC 51
Magistrates Appeal: Criminal

SULAN J: This is an appeal against sentence.The appellant, John Robert Howard, pleaded guilty to two offences of selling undersized lobster, in contravention of section 72(2)(c) of the Fisheries Management Act 2007 (SA). Section 72(2) of the Act prescribes a maximum penalty of $50,000 for each offence, or imprisonment for four years. The offences occurred on 28 April 2009 and 12 May 2009. Section 100 provides that a person convicted of an offence against the Act is subject to additional penalties, including suspension of any licence that the person may hold, or prohibition from engaging in a fishing activity or being in or on a specified boat, or boats of a specified class, or boats carrying devices of a specified class. Section 90(1)(b) empowers the Court to order forfeiture of items seized from a defendant who breaches the Act. Section 110(3) provides that a person convicted of an offence involving a sale, purchase or possession of undersized fish is liable to an additional penalty of five times the amount of the wholesale value of the fish, or $100,000, whichever is the lesser amount.
The sentencing Magistrate imposed one sentence for both offences, pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA). On 11 November 2010, the Magistrate convicted the appellant of both offences and imposed a fine of $20,000. In addition thereto, it was agreed that five times the value of the lobster the subject of the offences, was $4965. The Magistrate, having regard to the principle of totality, reduced that amount to $3000. He also ordered that two tags issued by the Department of Primary Industries and Resources SA Fisheries and two rock lobster measuring devices be forfeited. He confirmed the confiscation of 28 southern rock lobsters which were the subject of the charges. Pursuant to section 100, in addition to the penalties imposed, he ordered that the appellant be disqualified from holding or obtaining an authority of any class including, but not limited to, registration as a master of any boat to be used pursuant to a licence or permit with respect to the fishery for a period of two calendar months, and that the appellant be prohibited from engaging in a fishing activity of a specified class, namely rock lobster fishing, for two calendar months, and that he be prohibited from being on any vessel carrying any device used for the taking of rock lobster, including but not limited to a device commonly known as the rock lobster pot for a period of two months.
Background
The appellant is 34 years old and has lived in the Port MacDonnell area for his entire life. His family has been involved in the rock lobster fishing industry for over 40 years. After he left school, the appellant joined and worked in the family business. He is a certified master and skipper and had been skippering fishing boats for approximately seven years at the time of these offences. The business is a significant business and the appellant has been involved in catching crayfish since 2004. Over the years, it is estimated that he has caught over 91,000 crayfish on boats upon which he has been the skipper. The appellant’s family is a well-respected family in the south-east. The Magistrate received a number of character references which confirmed that the appellant is of a good reputation.
On 28 April 2009, the appellant sold 60 southern rock lobster to Fitzgerald’s Fish Sales Pty Ltd. Upon examination, officers of the Department of Primary Industries and Resources SA, Fisheries Division, concluded that 25 of these lobster were undersized. The appellant was charged in relation to the sale of those undersized lobster. The Fisheries officers observed that in that catch it was obvious to them that some of the lobster were undersized.
On 12 May 2009, the appellant again sold 25 southern rock lobster to Fitzgerald’s Fish Sales Pty Ltd. Upon examination, it was determined that three of those rock lobster were undersized. In each of the three undersized lobster, it is accepted that those lobster were .05 centimetres below the maximum size, which is 9.85 centimetres. As to the larger catch, the size varied between 9.52 centimetres and 9.82 centimetres. Thirteen of the 25 crayfish were 0.1 centimetres or less undersize.
On 28 April 2009, the weather and seas in which the appellant had been fishing were rough. The appellant was unwell. Further, one of his deck hands was required to leave work early. In the circumstances, the appellant submitted to the Magistrate that the care and control that he usually undertook in relation to ensuring that his lobster catch was not undersized had not been taken. He was frank with the Fisheries officers and admitted he was negligent in not identifying the undersized lobster.
As to the offence on 12 May 2009, it was accepted that the appellant was negligent, but it was submitted on his behalf, and was not disputed, that the three undersized lobster were 5 millimetres or less undersize. It was not apparent, as in the case of the first catch, that the three lobsters were undersize. The appellant had inaccurately measured them.
The sentence
The Magistrate referred to the seriousness of the offences. They involved a priority species, southern rock lobster, which is a valuable and fragile resource. It is not disputed that commercial fishermen, such as the appellant, know the importance of not selling undersized lobster. The appellant had previously been warned in relation to breaches and was, therefore, aware of the importance of complying with the legislative requirements.
The prosecutor tendered expert evidence which explained the importance of ensuring that undersized lobster were permitted to grow to full size and were not fished. That evidence explained that even a small difference in size is significant in terms of a female, because of their ability to reproduce. Fishermen are provided with, or required to have, measuring devices which accurately measure the size of the fish. The Magistrate correctly concluded that the southern rock lobster fishery is a fragile resource, that it has been in decline and in need of protection. It depends upon the cooperation of those exploiting the resource.
The Magistrate had regard to the appellant’s prior good character and the fact that he had been a professional fisherman for a number of years, had caught many lobster and that he had no prior convictions. The Magistrate did, however, refer to a prior occasion when the appellant had been warned about undersized lobster. On another occasion, the appellant had received an expiation notice. The Magistrate said:
Lastly I bear in mind you have a record of breaches. You were cautioned in October 2004 and you had an offence expiated in March of 2005. So you have an even stronger reason to be particularly vigilant. I think you either knew the lobster were undersize or you were negligent. You are a professional fisherman, you have been in the industry for many years, you should know better. Your licence is a privilege and you have abused the privilege.
That passage of the Magistrate’s reasons is the subject of a complaint. I shall return to it in due course.
The Magistrate, in sentencing the appellant, said:
Were it not for your plea today and if there was only one charge I would have imposed a fine of $15,000 for that one charge. There are however two charges and so the overall penalty for each offence will be reduced. In addition you are entitled to a discount for your plea. It makes little difference that the number of undersized lobsters on one charge was 25 and on the second charge was only three. I treat both of them as equally serious. I think the appropriate reduction for your plea would be a penalty in the region of $12,000 for each and because I propose to sentence you pursuant to s.18A of the Criminal Law (Sentencing) Act I think the appropriate penalty is $20,000. You will be convicted pursuant to s.18A and you will be fined the amount of $20,000.
The appeal
The appellant complains that the penalties imposed in their totality were manifestly excessive. Mr Henchliffe, who appeared for the appellant, submits that the Magistrate was in error in categorising the second offence as equally serious as the first offence. The Magistrate’s observation that the undersized rock lobsters sold on 12 May 2009 constituted a significant portion of the catch on that day was an error. Mr Henchliffe submits that a total of three out of 25 is not a significant portion of the catch. Further, he says that when considering the size of each of the undersized lobster the subject of the second count, the fact that in each case the lobster was less than .05 of a centimetre undersize also supports his contention that the Magistrate mischaracterised the seriousness of that offence.
Ms Harris, who appeared for the respondent, submits that no error has been demonstrated. She submits that the term “significant”, as used by the Magistrate, was in the context of the number of fish compared with the total, and it cannot be said that three undersized fish in a catch of 25 is insignificant.
Mr Henchliffe further complains that the Magistrate was in error in concluding that, for a fisherman of the appellant’s experience, a difference in the size of a rock lobster of only a millimetre or two would have been obvious and that the undersized lobster should have been apparent to the appellant. Ms Harris submits that it was open to the Magistrate to infer that, for an experienced fisherman, it would have been obvious that the rock lobster caught was small and required measurement.
In my view, in relation to the larger catch the subject of the first count, the Magistrate’s observations were accurate. However, there is some force in the submission in respect of the smaller catch. It is accepted that the three undersized lobster in the second catch were just below the minimum size. In those circumstances, it would have been difficult, even for an experienced fisherman, to see that they were undersized lobster.
Mr Henchliffe complains that the Magistrate did not clearly articulate whether he was sentencing the appellant on the basis that the appellant was negligent or on the basis that his conduct was deliberate. The Magistrate referred to the appellant’s state of mind as either having knowledge that the lobsters were undersized or being negligent. He did not specifically conclude upon which basis he was sentencing the appellant. Nevertheless, reading the sentencing remarks as a whole, I am satisfied that the Magistrate dealt with the appellant on the basis that his conduct was negligent.
Mr Henchliffe’s main complaint, however, is that the Magistrate was in error in treating both offences as equally serious. As to the first offence, there were 25 undersized lobster, being 40 per cent of the overall catch. As to the second offence, there were three which were just undersize, which constituted 13 per cent of the catch.
Ms Harris submits that the Magistrate did not fall into error as, in considering offences, it is important to have regard to the purpose of the legislation and its scheme. The offences are strict liability offences. The appellant is a commercial fisherman. The rock lobster industry is a valuable and vulnerable industry which requires protection. As to the offence on 12 May, the appellant was well aware of the seriousness of this offending, he having been caught only two weeks before with a substantial number of undersized lobster. In the circumstances, Ms Harris submits, the Magistrate did not err in treating the two offences as equally serious.
The final submission is that the Magistrate erred in refusing the appellant’s application not to record a conviction. Mr Henchliffe submits that, in all the circumstances, the Magistrate should have exercised his discretion pursuant to section 16 of the Criminal Law (Sentencing) Act 1988, and declined to convict the appellant. Mr Henchliffe submits that, having regard to the appellant’s good record, and having regard to the unlikelihood that the appellant will offend again in the future, the Magistrate erred in recording a conviction.
Discussion
The Act is an act which provides for the conservation and management of the aquatic resources of the State, including the management of fisheries, the regulation of fishing and to protect and preserve aquatic resources. It is regulatory legislation which has as a prime object to preserve and protect species which may be at risk if they are over-fished. The arrangements which were put in place to manage fisheries are established to control the level of exploitation of the fish population.
In relation to rock lobster, the particular concern is to manage adult mortality. In the case of female lobsters, a small difference in size is significant in terms of whether a female is sexually mature or not. It is important for the future of the industry that undersized lobster are preserved so that the system can be managed. The industry is an important industry to South Australia and must be carefully managed.
It follows, therefore, that penalties for breaches of the Act must not only reflect the seriousness of those breaches, but also act as a deterrent to those who may be minded to break the law.
Having made those observations, I consider that the Magistrate did fall into error. To treat both offences as equally serious is a significant error. Even having regard to the matters referred to by Ms Harris, I am of the view that there is a substantial difference between the two offences. In the case of the offence committed on 28 April, there were a significant number of undersized lobster forming a significant proportion of the overall catch. Further, it would have been obvious, particularly to a professional fisherman with the experience of the appellant, that some of the lobster were undersized. Even having regard to the fact that the appellant was unwell and perhaps under pressure because one of his deckhands needed to leave early, I consider that he should have, at the very least, observed that a substantial proportion of his catch was undersize.
As to the offence on 12 May 2009, that involved three lobster out of a total of 25. The undersize was not immediately apparent on sight, and the three undersized lobster were very close to the limit. I consider that the Magistrate erred in treating the two offences as equally serious. It follows that I should reconsider the sentence.
Mr Henchliffe submits that in referring to the appellant having received an expiation notice in March 2005, the Magistrate contravened the prohibition upon a court in treating an expiation notice as a prior breach of the Act.
Section 15(4) of the Expiation of Offences Act 1996 (SA) is as follows:
(4)The expiation of an offence under this Act (or an application for relief under this Act) –
(a)does not constitute an admission of guilt or of any civil liability; and
(b)will not be regarded as evidence tending to establish guilt or any civil liability; and
(c)cannot be referred to in any report furnished to a court for the purposes of determining sentence for any offence.
Subsection (4) prohibits a court from receiving a report which refers to prior breaches of the law resulting in the issue of an expiation notice. The effect is that the payment of an expiation notice is not an admission of any offence. The usual report, referred to in subsection (4)(c), which is tendered to the court is an antecedent report which lists prior convictions. The reference by the Magistrate to the appellant having an offence expiated suggests that he considered the appellant had committed a prior breach of the Act. The Magistrate was in error in referring to the occasion of an expiation notice as a breach of the Act.
Ms Harris submits that section 15(4) does not exclude the sentencing court having regard to the fact of the issue of an expiation notice. She submit that a sentencing court may have regard to that fact to establish that a defendant had been warned about the offence previously and had actual knowledge that certain behaviour was illegal. She submits that the fact of prior cautions are relevant to the appellant’s culpability in that he should have been aware of his obligation to carefully measure fish before taking them.
In my view, that submission must be rejected. Section 15(4)(c) prohibits any reference to a report furnished to the court for the purpose of determining sentence for any offence. The provision is intended to prohibit an allegation that an offence is aggravated because a defendant has previously contravened the Act and, although not convicted of any offence, has been served with an expiation notice and paid an expiation penalty. That is, it cannot be regarded as an aggravating feature of an offence that a person has breached the Act in the past.
The only relevance of referring to a person’s prior knowledge of the provisions of the Act in sentencing is to establish an aggravating factor of the conduct, that being that, because the appellant had in the past contravened the Act, he should have been more cautious and more alive to the need to ensure that his catch was not undersize.
The section is clear. A purpose of enacting the prohibition is that relatively minor breaches of an Act which are not contested can be dealt with by payment of a fixed penalty. The expiation notice system enables persons to avoid a court hearing by payment of an administrative fee. If payment of an expiation penalty were to be regarded in the same way as a prior conviction, then the purpose of the legislation would be defeated.
Resentencing
I deal first with the submission that this was a case in which I should not record a conviction. It is accepted by both counsel that the Court has a discretion to impose a penalty without recording a conviction. Section 16 of the Sentencing Act provides that if a court is of the opinion that a defendant is unlikely to commit a similar offence again and that, having regard to factors such as the character and antecedents of the defendant, and good reason exists for not recording a conviction, the court may impose a penalty without recording a conviction.
In Piva v Brinkworth,[1] Duggan J considered when it might be appropriate to invoke section 16 in a case of offences of a regulatory nature. Duggan J accepted that there may be cases where it is appropriate to proceed without conviction. However, he considered that such an option can have only limited application to regulatory offences.
[1] (1992) 59 SASR 92.

In cases such as this, the deterrent aspect of punishment is paramount. In 2007, the Act repealed the Fisheries Act 1992 (SA). The penalties for selling or purchasing undersized fish were substantially increased. In the 1992 Act, the maximum penalty for this type of offence was $8000 and two years’ imprisonment. That penalty is now $50,000 and four years’ imprisonment, which demonstrates how seriously Parliament regards this offending. The industry is a significant and important industry for the economy of South Australia, and penalties for breach of the Act must have a deterrent effect.
In this case, there were two offences committed two weeks apart. I cannot be satisfied that the appellant is unlikely to offend again in the future or, even if I were to arrive at that conclusion, I am not satisfied that the offending was of such a nature that I should exercise my discretion not to record a conviction, and I refrain from doing so.
I now turn to the penalty. In considering the penalty, I have regard to the comments of Olsson J in Cutting v Glover.[2]Olsson J was concerned with the scheme of the Fisheries Act as it then was. The penalty, as is the case under the present Act, included additional penalties, including the power to seize equipment and boats. Olsson J said:
It is to be remembered that the power is enormously wide and potentially draconian in its effect. In theory an offender is liable not only to specific prescribed penalties and (where applicable) a severe so-called “additional penalty” under s66 but he may also have had fish, valuable equipment or even his boat seized. Great care therefore needs to be taken to ensure that there is (in de facto terms) no undue double counting as to penalty and that, in totality, the orders made constitute a reasonable reflection of the total degree of criminality involved in the offending.[3]
[2] (1987) 135 LSJS 35.
[3] Ibid 5.
It follows that, in this case, I have regard to the fact that the appellant has already served six weeks’ suspension and has been unable to participate in his business over that period. No financial cost can be put upon that penalty, but the appellant was precluded from conducting his business for six weeks. That in itself is a substantial penalty. The appellant has completed that part of his sentence. There is no complaint about the penalty in respect of the value of the lobster, and I do not interfere with it.
I accept that severe penalties must flow from this offending. I have regard to the age of the appellant, the fact that he has been a skipper of a boat for seven years and has caught a great number of lobster. He has no prior convictions for offences of this nature.
As to the first offence, for the reasons I have given I would impose a fine of $7000. As to the second offence, I would impose a fine of $3000.
The orders of the Court are as follows:
1.Appeal against sentence allowed.
2.As to count 1, the appellant is fined $7000.
3.As to count 2, the appellant is fined $3000.
4.The order that the appellant pay $3000 in addition to any fine, that amount relating to the value of the undersize lobster is confirmed.
5.The orders of the Magistrate forfeiting the catch and other equipment is confirmed.
6.The orders of disqualification, suspension and prohibition, pursuant to section 100 of the Act, are confirmed.