Lange v Pricket

[2009] QDC 224

[2009] QDC 224

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE RAFTER SC

No 440 of 2009

GARY IAIN LANGE	Appellant
and
DAVID JAMES PRICKET	Respondent
and

No 446 of 2009
CHRISTOPHER BRUCE TOSHACH Appellant
and

DAVID JAMES PRICKET Respondent

BRISBANE

..DATE 20/07/2009

ORDER

1-1

HIS HONOUR: On 20 January 2009, the appellants each pleaded

1

guilty to one charge of possessing filet from coral reef fin
fish less than 40 cms long when on a boat, but not commercial
fishing tour or on a tour less than consecutive 48 hours
contrary to Section 134 of Chapter 4, Fisheries (Coral Reef

Fin Fish) Management Plan 2003.	10
The appellants were each fined $500 and a conviction was recorded in each case. They were also ordered to pay $66.50 costs of Court.
20
The appellants have appealed against the Magistrate's order recording convictions.
The appellants were on a recreational fishing trip. They were
required to keep reef fish whole for the duration of the trip.	30
The fish were definned, gutted and kept whole for a large part of the trip. However, the refrigerator failed to freeze the fish. To avoid the fish perishing, they were filleted and stored in a suitable freezer.
40
The appellants apparently made every effort to comply with the
legislative requirements. However, the Acting Magistrate was
sceptical of the appellants' claims as to their reasons for filleting the fish. The Magistrate said, "I have suspicion about it, but inadequate information from which to determine	50

that. The information that you have provided through your solicitors is inherently unreliable. It is, however in my view, tainted by your own behaviour in doing something you 1-2 ORDER 60

1

knew that you were not permitted to do."

The purpose of the legislation is plainly to facilitate the checking of the size of fish by the Fisheries authorities.

10

In this case, the prosecution did not challenge the
explanation put forward on behalf of the appellants by their
solicitor. In those circumstances, it was not open to the
Acting Magistrate to doubt the veracity of that claim unless,

of course, the appellants were afforded an opportunity to lead	20
evidence and explain their reasons for filleting the fish.
The appellants' antecedents are as follows. At the time of
sentence, Mr Toshach was 48 years old. Mr Lang was 39 years
old. Neither had any prior criminal history. There were	30
character references tendered on behalf of each of the appellants.
The comparable cases given to the Acting Magistrate provided
illustrations of convictions not being recorded in similar	40
circumstances. The solicitor for the appellants submitted to
the Magistrate that convictions should not be recorded.
However there was no suggestion that convictions would impact
upon their economic or social wellbeing, or their chances of
finding employment. Nevertheless they are just some aspects	50

of the matters that required consideration under Section 12(2)
Penalties & Sentences Act 1992.
The Acting Magistrate was also required to have regard to the 1-3 ORDER 60

1

nature of the offence and the appellants' character and age.
The Acting Magistrate gave no reasons for recording
convictions. There was no reference to Section 12(2)

Penalties & Sentences Act.

10

Ms Muir for the appellants submits that convictions ought not
to have been recorded. Ms Condon for the respondent neither

supports nor opposes the appeal. However, she very fairly pointed to factors in favour of not recording convictions. Ultimately she submitted that it was a matter for this Court	20
to determine the way in which the exercise of discretion should be approached.
Having regard to the factors outlined in Section 12(2)
Penalties & Sentences Act, particularly the circumstances of	30
the offence and the appellants' prior good character, the proper exercise of discretion required that convictions not be recorded. Ms Muir for the appellants does not seek an order for costs.
40
Accordingly the orders in each case are as follows:
1. Allow the appeal.
2. Set aside the order of the Magistrates Court at Brisbane	50
on 20 January 2009 recording a conviction.
3. Instead, order that a conviction not be recorded.

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