Pennings v Maryan

[2000] WASCA 172

PENNINGS -v- MARYAN [2000] WASCA 172

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 172
Case No:	SJA:1025/2000	Heard:	25 MAY 2000
Coram:	HASLUCK J	Delivered:	23/06/00
No of pages:	21	Judgment Part:	1 of 1
Result:	Appeal dismissed
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Parties:	PETER ADRIAN JOSEPH PENNINGS BRADFORD MARYAN
Catchwords:	Wildlife Conservation Act Sentencing Act Appeal against sentence under Justices Act Taking and being in possession of protected fauna Keeping fauna in confinement Snakes and snake eggs kept for scientific purposes Conditional release orders made Suitability of spent conviction orders
Legislation:	Criminal Code Federal Court of Australia Act 1976 Justices Act 1902, s 186, s 196, s 199, Sentencing Act 1995, s 6, s 7, s 8, s 9, s 12, s 39, s 44, s 45, s 46, s 47, s 53, s 54, s 59 Spent Convictions Act 1988, s 3, s 6, s 7, s8 Supreme Court Rules, O 63 r 2, O 65 r 10, O 65A r 3 Wildlife Conservation Act 1950, s 6, s 14, s 16(1), s 16A(1), s 26, s 27 Wildlife Conservation Regulations 1970, reg 28
Case References:	Bembridge v G-K-R Karate Australia Pty Ltd (1998) 103 A Crim R 363 Coughran v Newing, unreported; SCt of WA; Library No 930720; 17 December 1993 House v The King (1936) 55 CLR 499 Langridge v The Queen (1996) 17 WAR 346 Laporte v The Queen [1970] WAR 87 Lowndes v The Queen (1999) 73 ALJR 1007 Neale v Sloan (1997) 27 MVR 246 R v Grein [1989] WAR 178 R v Starr [1999] WASCA 119 R v Tait (1979) 46 FLR 386 R v Tognini [2000] WASCA 31 Everett & Anor v The Queen (1994) 181 CLR 295 Harvey v Robertson [1999] WASCA 120 Leucas v R (1995) 78 A Crim R 40 R v Scidone, unreported; CCA SCt of WA; Library No 990081; 8 February 1999 Sgroi v The Queen (1989) 40 A Crim R 197

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : PENNINGS -v- MARYAN [2000] WASCA 172 CORAM : HASLUCK J HEARD : 25 MAY 2000 DELIVERED : 23 JUNE 2000 FILE NO/S : SJA 1025 of 2000 BETWEEN : PETER ADRIAN JOSEPH PENNINGS

Appellant

AND

BRADFORD MARYAN
Respondent

Catchwords:

Wildlife Conservation Act - Sentencing Act - Appeal against sentence under Justices Act - Taking and being in possession of protected fauna - Keeping fauna in confinement - Snakes and snake eggs kept for scientific purposes - Conditional release orders made - Suitability of spent conviction orders

Legislation:

Criminal Code

Federal Court of Australia Act 1976
Justices Act 1902, s 186, s 196, s 199,
Sentencing Act1995, s 6, s 7, s 8, s 9, s 12, s 39, s 44, s 45, s 46, s 47, s 53, s 54, s 59
Spent Convictions Act 1988, s 3, s 6, s 7, s8
Supreme Court Rules, O 63 r 2, O 65 r 10, O 65A r 3
Wildlife Conservation Act 1950, s 6, s 14, s 16(1), s 16A(1), s 26, s 27
Wildlife Conservation Regulations 1970, reg 28

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Result:

Appeal dismissed

Representation:

Counsel:

Appellant : Ms J C Pritchard
Respondent : Mr R A Mazza

Solicitors:

Appellant : State Crown Solicitor
Respondent : Mazza & Mazza

Case(s) referred to in judgment(s):

Bembridge v G-K-R Karate Australia Pty Ltd (1998) 103 A Crim R 362
Coughran v Newing, unreported; SCt of WA; Library No 930720; 17 December 1993
House v The King (1936) 55 CLR 499
Langridge v The Queen (1996) 17 WAR 346
Laporte v The Queen [1970] WAR 87
Lowndes v The Queen (1999) 73 ALJR 1007
Neale v Sloan (1997) 27 MVR 246
R v Grein [1989] WAR 178
R v Starr [1999] WASCA 119
R v Tait (1979) 46 FLR 386
R v Tognini [2000] WASCA 31

Case(s) also cited:

Everett & Anor v The Queen (1994) 181 CLR 295
Harvey v Robertson [1999] WASCA 120
Leucas v R (1995) 78 A Crim R 40
R v Scidone, unreported; CCA SCt of WA; Library No 990081; 8 February 1999
Sgroi v The Queen (1989) 40 A Crim R 197

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1 HASLUCK J: The appellant, Peter Pennings, obtained leave to appeal from a sentencing decision of Mr Cockram SM in respect of 13 charges arising under provisions of the Wildlife Conservation Act 1950. The complaint concerned two counts of taking protected fauna without a licence contrary to s 16(1) of the Wildlife Conservation Act, four counts of being in possession of protected fauna without a licence contrary to s 16A(1) of the Act and seven counts of keeping fauna in confinement without a licence contrary to reg 28 of the Wildlife Conservation Regulations 1970. The respondent had entered a plea of guilty to each of the counts.

2 The appellant had brought the complaint as a person duly authorised to do so by the executive director of the Department of Conservation and Land Management. At the hearing before the Magistrate on 27 January 2000 counsel for the appellant commenced by providing an overview of the matters in issue. She said that on 7 January 1999 wildlife officers executed a search warrant at premises occupied by Mr Maryan, who is the respondent in this appeal. She went on to say that as a result of the search 17 unlicensed snakes were discovered on the premises. Seven snake eggs were also seized, but were not actually removed from the respondent's premises until they had hatched. A few days later the wildlife officers returned to the same premises, being the respondent's domestic residence at Mount Hawthorn, and seized another unlicensed snake. Counsel said that the respondent was co-operative throughout the course of the search and seizure.

3 It is apparent from the transcript of the hearing that other facts and matters relevant to the process of sentencing were put up for consideration. Counsel for the appellant said that all the snakes the subject of the seizure were protected, although not all were indigenous to Western Australia. She referred to the fact that the snakes were kept in cages at the premises. The respondent did have a reg 16 licence that allowed him to keep snakes for educational and public purposes, but the snakes seized were not the snakes the subject of that licence. He also had a reg 17 licence that allowed him to take fauna for specifically stated scientific purposes, but that licence did not apply to the snakes that were ultimately seized. The respondent admitted that the snakes the subject of the seizure were being held unlawfully. Reference was made to the fact that he had made applications for extra licences, but without disclosing that in some cases he already held the snakes the subject of the application so that, in effect, he was trying to obtain an approval retrospectively for snakes already held unlawfully. She drew attention to the penalties

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prescribed by the Wildlife Conservation Act. I will return to that aspect of the matter in due course.

4 In the course of her address, counsel for the appellant also informed the learned Magistrate that the respondent was a member of the Western Australian Society of Amateur Herpetologists. He had been employed by the Perth Zoo and was currently employed by the WA Museum. She acknowledged that as a senior office bearer of the Herpetologists' Society the respondent had been involved in a consultative process concerning the drafting of legislation to revise the system for keeping reptiles, but suggested that the relevance of this was marginal. His involvement in that regard simply indicated that he was in a better position than most to know that he was breaking the law as it stood at the time the offences were committed. She confirmed that the respondent had no prior convictions for offences of the kind under consideration. The snakes were well cared for while they were in the defendant's possession and they were in good condition when they were seized. She drew attention to the fact that some of the snakes had been held by the respondent since 1992. In effect, in the course of building up a collection of snakes for his own private interest, the respondent had deliberately flouted the law over a long period.

5 It was against this background that counsel for the appellant submitted that a fine would be the appropriate disposition, without any spent conviction order, to act as both a personal and as a general deterrent, bearing in mind that the respondent was a highly-placed member of the Herpetologists' Society and had ignored the conditions of his licences. His actions in pleading guilty at a late stage were said to demonstrate a lack of remorse or a sense of responsibility for his actions. It would be difficult for the court to form a view that he would not reoffend because he had been breaching the law in relation to the offences for some time. Finally, she made an application pursuant to s 27 of the Wildlife Conservation Act in relation to any reptiles seized which were not already property of the Crown and as to various housing cabinets, storage boxes, water containers and glass aquariums used to house the snakes. The legal costs sought to be recovered from the respondent amounted to $3,807.50.

6 Counsel for the respondent informed the Magistrate that the respondent was 33 years of age, he was a single man, he lived by himself at the address in Mount Hawthorn where the reptiles were found. Since February 1998 he had been working at the WA Museum as a technical officer where he was currently undertaking audit work in respect of the museum's amphibian and reptile collection. Prior to working at the museum, he had worked for 11 years as a zookeeper at the South Perth

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Zoo. He did not have formal tertiary qualifications, having left school at the age of 15, but had basically devoted his adult life to the study of herpetology. He was said to be earning $400 net per week.

7 Counsel went on to say that the respondent was currently vice-president of the Herpetologists' Society, having had a passionate interest in herpetology since he was a boy. He was interested in the conservation of reptiles and had never bred reptiles and sold them for profit. Reference was also made to the fact that the respondent had provided services to the community by publishing papers relating to his field of knowledge and by acting as a "Snake Buster", meaning a person engaged to rid properties of venomous snakes. With two other authors he had written the definitive field guide for herpetologists called Reptiles and Frogs of the Perth Region. As a consequence of these various activities, he was acutely aware of the principles of wildlife conservation. The purpose of keeping the snakes the subject of the seizure was purely for scientific observation without any intention to sell or export. Counsel also referred to the respondent's participation in the preparation of new legislation and some of the frustration experienced by the respondent in the course of that process.

8 Counsel for the respondent submitted to the court various references as to the good character of his client and his standing within the scientific community. One of these references was provided by Dr Kenneth P Aplin, curator of herpetology at the WA Museum. Dr Aplin also appeared in person and gave evidence to the effect that the respondent was recognised nationally and internationally as an authority upon the reptiles of Western Australia. Dr Aplin referred to an occasion, not long before the seizure, in which the respondent indicated a concern about the fate of certain animals in his possession which were held by him "off licence". According to Dr Aplin the respondent had in mind that he would go to CALM as the relevant licensing group so as to "come clean" about the situation. Under cross-examination, Dr Aplin confirmed that he could not condone any infringement of the licensing provisions. He accepted that a licensing regime to control the activities of amateur herpetology was necessary and beneficial for the State.

9 Having heard from counsel on both sides, the learned Magistrate then adjourned in order to consider what sentence or sentences should be imposed. His reasoning is reflected in the outline set out below.

10 The learned Magistrate began by asserting that each one of the charges concerned a serious offence, this being apparent from the fact that

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the seven charges under reg 28 allowed a maximum fine of $2,000 ("the reg 28 charges") and the six charges brought pursuant to s 16 or 16A of the Act allowed for a maximum fine of $4,000 ("the taking/possession charges"). Aggravating features of the respondent's conduct included the number of snakes and eggs involved and the respondent's knowledge that what he was doing was unlawful, with the offending behaviour being continued over a number of years.

11 The learned Magistrate observed in passing that it did not assist the respondent to argue that the Act and Regulations, or CALM's implementation of the same, were in need of reform, because members of the community generally were obliged to confine themselves to legal ways of implementing change. Mitigatory factors included the respondent's lack of any prior record, the fact that the reptiles and eggs in question were cared for and in good condition, the offences were not committed for profit, the respondent was generally a person of good character who had made a significant contribution to the study of reptiles and had used his knowledge in that regard for the benefit of the community. Reference was also made to the fact that he had co-operated fully with the officers executing the search warrant and the fact that he had pleaded guilty, although the discount effect of the latter event was reduced by the lateness of the plea. He mentioned Dr Aplin's evidence that the respondent had given consideration to advising CALM of his possession of the reptiles.

12 The learned Magistrate went on to say that there was a need for any disposition to contain an element of general deterrence so as to convey to the public that the conduct in question was not acceptable. There should also be an element of personal deterrence. He noted that the respondent did not have the capacity to meet fines which would adequately reflect all the appropriate sentencing principles. It was against that background that he turned to s 47 of the Sentencing Act which provides for a conditional release order if the court considers there are reasonable grounds for expecting that the offender will not reoffend during the term of the CRO and does not need supervising. The learned Magistrate was satisfied that these requirements had been met in the circumstances of the present case. He noted also that it had been a sobering experience for the respondent to be charged and brought before the court. He concluded that the respondent should be placed on a conditional release order to be of good behaviour for a period of 18 months, secured by the sum of $500, in respect of each of the reg 28 charges. He should be placed on a conditional release order to be of good behaviour for a period of 18 months, secured by the sum of $750 in respect of each of the

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taking/possession charges. He was not prepared to make an order for forfeiture of the equipment used by the respondent.

13 The learned Magistrate then turned to s 45 of the Sentencing Act and the question whether a spent conviction order should be made in respect of the various offences. In order to appreciate the effect of the learned Magistrate's reasoning, it will be useful to refer briefly to various statutory provisions concerning spent convictions.

14 The long title to the Spent Convictions Act 1988 reveals that it is an Act to make provision for a person who has been convicted of an offence to be rehabilitated by limiting the effects of the conviction. By s 3 a "spent conviction" means a conviction that is spent under s 6, s 7 or s 8 of the Act or that is spent by virtue of a spent conviction order made under s 39 of the Sentencing Act1939. It is apparent from subsequent provisions of the Act that generally a reference to a conviction of a person for an offence does not include a reference to a spent conviction. Questions about a convicted person put to that person, or any other person, should not be taken to relate to a spent conviction or the charge to which the conviction relates. Further, it is unlawful to discriminate against a person on the ground of a spent conviction.

15 Section 39(2) of the Sentencing Act provides that subject to s 41 to s 45, a court sentencing an offender may, with or without making a spent conviction order, impose no sentence and order the release of the offender; impose a conditional release order, or CRO, and order the release of the offender; impose a fine and order the release of the offender; impose a community-based order, or CBO, and order the release of the offender. Importantly, by s 39(3) a court must not use a sentencing option of the kind just mentioned unless satisfied, having regard to the sentencing principles set out in Div 1 of Part 2 of the Sentencing Act, that it is "not appropriate to use any of the options listed before that option."

16 Section 45(1) of the Sentencing Act is in these terms:

"(1) Under section 39(2), a court sentencing an offender is not to make a spent conviction order unless —

(a) it considers that the offender is unlikely to commit such an offence again; and

(b) having regard to —

(i) the fact that the offence is trivial; or

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(ii) the previous good character of the offender,

it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender."

17 The learned Magistrate, after reviewing the evidence in the light of the criteria contained in s 45, was prepared to hold that the circumstances of the case fell within s 45(1) of the Sentencing Act in that the offender was unlikely to commit an offence of the same kind again, and he was a person who should be relieved immediately of the adverse effect that the conviction might have upon him. It is significant that he was not prepared to make a finding that the offences were "trivial".

18 I note in passing that by s 46 an offender can only be released without sentence if the circumstances of the offence are thought to be trivial or technical. Such a result was not and is not open in the circumstances of the present case in circumstances where the learned Magistrate was clearly not prepared to hold that the circumstances were trivial or technical. I note also that by s 45(4) a spent conviction order is to be taken as part of the sentence imposed.

19 Finally, after taking account of the fact that the respondent's net income was $400 per week and his savings were said to be no more than "$2000 or $3,000", the learned Magistrate awarded costs against the respondent of $3,807.50 upon the basis that he had the capacity to pay the costs.

20 The Crown Solicitor applied for leave to appeal this decision pursuant to s 186 of the Justices Act 1902. That provision allows for leave to appeal on the grounds that a Magistrate made an error of law or fact (or of both law and fact), acted without or in excess of jurisdiction, imposed a sentence that was inadequate or excessive or that there is some other reason that is sufficient to justify a review of the decision. Leave was obtained on the basis that the appeal was to be heard by a single Judge.

21 The effect of s 196 is that the appeal shall be determined on the material that was before the Magistrate and on such further evidence as the court thinks fit to receive. The powers of the court upon the hearing of an appeal are set out in s 199 and include powers to dismiss the appeal, or set aside, quash or vary the decision of the Magistrate and to substitute a decision that ought to have been made. There is also power to remit the case for rehearing by the Magistrate with or without any direction to him.

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The court is not required to set aside, quash or vary a decision because the Magistrate omitted to make any necessary finding if the facts or evidence in substance support the decision or justify the finding. Accordingly, in this context, and bearing in mind that this is an appeal by the Crown, it will be useful to look briefly at a number of principles relevant to the sentencing process before turning to the grounds of appeal and circumstances of the present case.

22 The Sentencing Act1995 is described as an Act to consolidate and amend the law relating to the sentencing of offenders. I have already noticed that various sentencing principles are reflected in Div 1 Part 2 of the Act. More specifically, s 6(1) provides that a sentence imposed on an offender must be commensurate with the seriousness of the offence. This is to be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, any aggravating factors and any mitigating factors. A court must not impose a sentence of imprisonment unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it. A court sentencing an offender must take into account any relevant guidelines in a guideline judgment given by the Full Court of the Supreme Court or the Court of Criminal Appeal containing guidelines to be taken into account by courts sentencing offenders.

23 Aggravating factors are referred to in greater detail in s 7 of the Act being factors which, in the court's opinion, increase the culpability of the offender. Section 8 provides that mitigating factors are factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which he or she should be punished. Such factors include a plea of guilty upon the basis that the earlier in proceedings it is made, the greater the mitigation. By s 9, if the statutory penalty for an offence specifies a maximum penalty, the penalty to be imposed must be not more than that maximum. By s 12 the jurisdiction at common law to require an offender to enter into a bond, a recognisance, or a surety, to be of good behaviour or to keep the peace, or to appear for sentence when called upon, is abolished.

24 Academic commentators have observed that sentencing provisions often reflect a degree of tension between a sentence reflecting the offender's culpability, which may act as a general deterrent, and measures designed to assist the offender to regulate his behaviour in the future, although measures of this latter kind may sometimes be thought to

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diminish the gravity of the offence and weaken the deterrent effect of the law on potential offenders.

25 Fines are generally used in cases where a deterrent or punitive sentence is necessary, but either the inherent gravity of the offence is insufficient to justify a sentence of imprisonment, or the presence of mitigating factors justifies the sentencer in avoiding a sentence of imprisonment. A fine should not normally be imposed without an investigation of the offender's means. The amount appropriate to the offence considered in the abstract should be reduced, where necessary, to an amount which the offender can realistically be expected to pay: Thomas, Principles of Sentencing (2nd ed, 8 and 318).

26 The nature of the legislation under which charges are brought must also be taken into account. In Bembridge v G-K-R Karate Australia Pty Ltd (1998) 103 A Crim R 362, a case concerning charges brought pursuant to the Door to Door Trading Act 1987, Miller J considered that the offences in question were breaches of "social legislation" where the preventative and deterrent aspects of punishment assumed greater prominence than might otherwise have been the case. This could also be said of offences arising under the Wildlife Conservation Act.

27 A number of decided cases deal with the manner in which an appeal court should review the exercise of a discretion as to sentence in the court below. In House v The King (1936) 55 CLR 499 a majority of the High Court indicated that it is not enough that the Judges composing the appellate court consider that they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. Further, in some cases, although the nature of the error may not be discoverable, the appellate court may infer that there has been a failure properly to exercise the discretion if the result is unreasonable or plainly unjust.

28 More recently, in Lowndes v The Queen (1999) 73 ALJR 1007, a case in which the provisions of the Sentencing Act1995 (WA) were under consideration in regard to the conviction of an offender for indecent dealing in the District Court, the High Court held that a Court of Criminal Appeal may not substitute its own opinion for that of a sentencing Judge

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merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion. Accordingly, as the reasoning of the Court of Criminal Appeal in this State had identified no failure on the part of the sentencing Judge to advert to any material consideration, no taking into account of any immaterial consideration, and no error on the part of the sentencing Judge which justified setting aside his exercise of discretionary judgment, an appeal against the ruling of the Court of Criminal Appeal should be allowed.

29 These precepts, however, have to be read in the light of the statutory provisions governing the particular appeal. It is apparent from various decided cases that in circumstances where sentences imposed for summary offences are to be reviewed by way of rehearing, the error principle will not necessarily be decisive: see Fox & Freiberg: Sentencing (2nd ed par 13.105). In the present case, however, the provisions of the Justices Act, although allowing broad powers to the appeal court upon the hearing of the appeal to substitute a decision that ought to have been made by the Magistrate in the court below, clearly contemplate that the appeal can only be prosecuted where an identifiable error has been made. It is true that O 63 r 2 and O 65 r 10 of the Supreme Court Rules indicate that appeals to the Supreme Court are by way of rehearing. Indeed, it is for this reason, presumably, that under O 65A r 3 there is power to admit further evidence. Nonetheless, s 186 of the Justices Act, which requires that leave to appeal can only be obtained upon specified grounds, suggests that where the matter is referred to a single Judge, as in the circumstances of the present case, the appeal should only be allowed where an error in the exercise of the Magistrate's discretion has been identified: Neale v Sloan (1997) 27 MVR 246.

30 This brings me to the further question of whether a Crown appeal raises special considerations which are not present in an appeal by an appellant seeking a reduction in his sentence. Crown appeals have been described by some commentators, and in some previously decided cases, as cutting across the principle that the defendant should not be exposed to double-jeopardy.

31 In R v Grein [1989] WAR 178 Malcolm CJ said that the principles applicable to an appeal by the Crown against sentence under the Criminal Code are now well-settled. He cited with approval the views of the Federal Court in R v Tait (1979) 46 FLR 386, where it was said that the Crown's appeal against sentence pursuant to provisions of the Federal Court of Australia Act 1976 was to be decided by the same general

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principles as applied by the court in an appeal against sentence by a defendant. The appellate court only interfered if it was shown that the sentencing Judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient features of the evidence. However, there would be few cases where the appellate court would interfere if the Crown had not done what was reasonably required to assist the sentencing Judge to avoid error. See also R v Starr [1999] WASCA 119.

32 Generally, it is for the sentencing judicial officer to decide what view of the facts he should take for sentencing purposes: Laporte v The Queen [1970] WAR 87, 89. It now appears to be clear, however, that upon a plea of guilty it is for the Crown to prove beyond reasonable doubt the facts going to sentence which, if found, would be likely to result in a more severe sentence than otherwise would be the case: Langridge v The Queen (1996) 17 WAR 346. Also see Fox & Freiberg: Sentencing (supra) at par 2.304.

33 It is against this background that I turn to the relevant provisions of the Wildlife Conservation Act and the Sentencing Act.

34 Section 14 of the Wildlife Conservation Act provides that all fauna is wholly protected throughout the whole of the State at all times. By s 6 "fauna" means any animal indigenous to any State or Territory of the Commonwealth or any animal that periodically migrates to and lives in any State of the Commonwealth. The term "animal" means any living thing that is not a human being or a plant and includes, in relation to any such animal, the eggs, larvae or semen.

35 Section 16 provides that any person who infringes the protection conferred by s 14 by taking fauna while protected otherwise than by the authority of a licence issued pursuant to provisions of the Act commits an offence. Section 16A provides that a person who has in his possession any protected fauna or the skin or carcass of any protected fauna, except where the fauna was lawfully taken, commits an offence against this Act. Section 28 confers a power to make regulations. Regulation 28 is in these terms:

"(1) A person shall not keep any fauna in captivity or confinement except under the authority of a licence issued in accordance with these regulations.

(2) The provisions of subregulation (1) do not operate so as to prohibit any person who is not the holder of a licence

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issued under these regulations from temporarily caring for sick, diseased, injured or derelict fauna until such time as it can be released in the wild, humanely destroyed by an authorized person, or handed to an authorized wildlife officer."

36 Section 26 of the Act provides that any person who contravenes or who fails to comply with any provisions of this Act or the Regulations is guilty of an offence against this Act and is liable, if no other penalty be prescribed, to a maximum penalty of $4,000 in the case of a contravention or failure to comply with a provision of the Act and of $2,000 in the case of a contravention or failure to comply with a provision of a Regulation. All proceedings for offences against the Act shall be disposed of summarily before a Court of Petty Sessions.

37 In looking at the provisions of the Sentencing Act I have already drawn attention to the sentencing principles set out in Div 1 of the Act. Section 39 sets out various sentencing options in regard to sentences for a natural person. I am reminded that a court must not use one of the listed sentencing options unless satisfied, having regard to the prescribed sentencing principles, "that it is not appropriate to use any of the options listed before that option." This suggests that the sentencing option should be regarded as a hierarchy commencing at the lowest end of the scale with the provision in s 39(2)(a) to impose no sentence and order the release of the offender with or without making a spent conviction order. On that view of the matter, the order made by the Magistrate represented the next option, that is to say, to impose a CRO and order the release of the offender with or without making a spent conviction order. The option after that, in s 39(2)(c), is to impose a fine and order the release of the offender with or without making a spent conviction order.

38 I have already set out the terms of s 45(1) concerning the making of spent conviction orders. Section 44 provides that if the statutory penalty for an offence is a fine only, a court sentencing an offender for the offence may, if the offender is a natural person, use any one of the sentencing options in s 39(2)(a), (b) and (c).

39 Part A to the Sentencing Act deals with the subject of fines more specifically. By s 53, subject to the sentencing principles in Div 1 of Part 2, if a court decides to fine an offender then, in deciding the amount of the fine, the court must, as far as is practicable, take into account (a) the means of the offender; and (b) the extent to which payment of the fine will burden the offender. By s 54, a court sentencing an offender for two

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or more offences that are founded on the same facts or form part of a series of offences of the same or a similar kind may impose a single fine for all of the offences. By s 59, if a superior court fines an offender, it may order that if the offender does not pay the fine before a date set by the court, the offender is to be imprisoned until the offender's liability to pay the fine is discharged by payment of the whole of the fine, or by the offender serving a designated period of imprisonment.

40 Counsel for the appellant submitted that in the circumstances of the present case, given that the relevant provisions of the Wildlife Conservation Act fix maximum penalties by way of fine and do not impose specific penalties, the sentencing options available to the learned Magistrate were, under and by virtue of s 44 of the Sentencing Act, the first three of the sentencing options listed in s 39(2) of the Sentencing Act. Counsel said, further, that these options represented a hierarchy, by reference to the seriousness of the options, with the result that a Magistrate was not at liberty to use a sentencing option unless satisfied that it was not appropriate to use any of the sentencing options listed before that option (emphasis added). Accordingly, counsel contended, the approach which the learned Magistrate should have adopted was to commence with the sentencing option in s 39(2)(a) and to consider, in light of the factors in Div 1 of Part 2 of the Act, whether that option was appropriate, and if not, then to consider the next option and so on.

41 In carrying out this assessment, counsel argued, the primary sentencing principle to be applied was that a sentence imposed on an offender must be commensurate with the seriousness of the offence. Counsel said, further, that the learned Magistrate approached the task in reverse order. That is, he first addressed the appropriateness of a fine, then turned to consider the application of a conditional release order only because he considered a fine was not feasible. He did not identify the sentencing option he considered appropriate by reference to the seriousness of the offences involved. Ultimately, he concluded that a conditional release order was the appropriate sentencing option by reference solely to the terms of s 47 of the Sentencing Act - whether there were reasonable grounds for expecting that the offender would not reoffend and that the offender did not need supervising during the term of the CRO. He did not give sufficient weight to the seriousness of the offences.

42 Counsel submitted further that, in addition to his error concerning application of the hierarchical list of sentencing options, the learned Magistrate found that the terms of s 47(a) of the Sentencing Act were

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made out on the basis of three factors only, namely, the sobering experience for the respondent of being charged and appearing in court, the absence of any prior record and the plea of guilty (albeit a late plea). However, counsel argued, there was material before the learned Magistrate which weighed against these factors. The respondent had committed the offences in question over a long period. The facts submitted by the appellant were that the respondent had acquired snakes and kept them unlawfully from as early as April 1993, notwithstanding that he was not apprehended and charged until early 1999. His conduct, generally, revealed a longstanding lack of respect for the licensing regime. In these circumstances, the imposition of a conditional release order was said to constitute an error by the learned Magistrate in the exercise of his discretion.

43 Counsel for the appellant submitted, further, that the learned Magistrate appeared to be of the view that a fine was appropriate, but then found that the respondent did not have the capacity to pay fines which would adequately reflect all the appropriate sentencing principles. In fact, counsel went on to say, the respondent had some capacity to pay a fine from his weekly net salary and from his savings of $2,000 to $3,000. Thus, it was argued, to the extent that he could be said to have found that the respondent had no capacity to pay a fine, the learned Magistrate erred. Further, the learned Magistrate failed to appreciate the fact that he could vary downwards the amount of any fine which was ordinarily appropriate, to take into account the respondent's ability to pay. In failing to adopt this course of action, the learned Magistrate was said to be in error also. In the alternative, counsel argued, the learned Magistrate failed to consider whether a fine was the appropriate sentencing disposition, having regard to the seriousness of the offences. Given the learned Magistrate's implicit conclusion in relation to the seriousness of the offences, a fine was the only appropriate sentencing option.

44 Counsel for the respondent advanced a case to the contrary. According to him, the structure of the learned Magistrate's reasoning revealed a rigorous application of the considerations prescribed by the Sentencing Act. In the manner contemplated by s 6, the learned Magistrate began by determining the seriousness of the offences and the nature of the statutory penalty. A review of the circumstances of the offences brought him to the aggravating factors and eventually to the various mitigating factors, and in each case, it was argued, the learned Magistrate's assessment of those features of the case was apt. He was clearly aware that s 44(a) of the Sentencing Act limited the options available to him so that he could only impose orders pursuant to s 39(1)(a)

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to (c) of the Sentencing Act. Having determined that the offences were serious, it was obviously not appropriate to impose no sentence in the manner contemplated by s 39(2)(a) and, therefore, his supposed failure to begin at the first rung of the hierarchy was illusory.

45 Counsel for the respondent went on to say that the learned Magistrate had determined correctly that a conditional release order (being the next rung in the hierarchy process) was the appropriate sentence. In arriving at that conclusion, he was clearly impressed by the mitigating factors. The character references established that the respondent had performed over many years valuable community service with respect to his voluntary work with reptiles. The learned Magistrate was entitled to come to the view that the respondent, as a first offender, had found the experience of being charged and appearing in court a sobering experience which had brought home to him that his actions were unacceptable. It was appropriate for the learned Magistrate to take account of the fact that the animals were kept in an appropriate and secure environment, they were healthy, the respondent was an expert in the care and study of reptiles, they were being kept for scientific observation and were not being kept for profit. The conditional release orders imposed had the effect of securing the respondent's future compliance with the law by making it clear that any reoffending would result in payment to the Crown of a total sum of $8,500 in addition to the penalty which would be imposed upon the respondent for any new offence.

46 Counsel for the respective parties also made submissions concerning the spent conviction orders. According to counsel for the appellant, s 45 of the Sentencing Act, in contrast to provisions of the Spent Convictions Act 1988, is aimed at relieving the offender of the adverse effect immediately following the conviction. It follows from the nature of the power, and the extent to which it interferes with the ordinary operation of the Spent Convictions Act 1988, that it should only be sparingly exercised in a clear case where, for cogent reasons, its exercise is seen to be desirable.

47 Counsel for the appellant went on to say that a spent conviction order cannot be made unless the preconditions set out in s 45 of the Sentencing Act are met. However, that is not the end of the matter. In R v Tognini [2000] WASCA 31, Murray J summarised the considerations, additional to the preconditions in s 45 of the Sentencing Act, which should be taken into account in determining whether a spent conviction order should be made. Put shortly, the court should have regard to the seriousness of the offence, to the circumstances of its commission and to the circumstances

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personal to the offender. Ordinarily, a conviction will be a matter of record. The court should see whether there is some particular circumstance to show that it would be desirable, from the point of view of the offender, and of the community, why the adverse effect of the conviction should be immediately set aside. The court may be aided to reach this conclusion if it thinks that there is no pressing public interest in being able to have access to the fact of conviction as part of the process of securing the protection of the community.

48 Against this background, counsel for the appellant contended, the learned Magistrate erred in making a spent conviction order in respect of each of the offences. While the learned Magistrate acknowledged that the factors outlined in s 45(1) of the Act were not the only considerations, he erred in the application of the criteria in s 45(1) and in his consideration of other matters apart from those listed in s 45(1). Counsel contended that the learned Magistrate gave undue emphasis to the sobering experience of being charged and attending court, and to the notion that the respondent had performed services which were beneficial to the community. He failed to give sufficient weight to the fact that the respondent had committed the offences over a considerable period of time and with the knowledge that he was in breach of the statutory provisions. Further, the learned Magistrate failed to give any or any sufficient weight to the exceptional nature of a spent conviction order, and to the ordinary rule that a conviction is a matter of record. Counsel argued that it was clear from the evidence of Dr Aplin that the respondent's convictions would not jeopardise his employment. In view of the references put before the learned Magistrate, there was no suggestion that the respondent's convictions would interfere in any way with his continuing research, nor would it affect his standing within the Society of Amateur Herpetologists. In these circumstances, the interests of the public did not warrant a spent conviction order being made.

49 Counsel for the respondent argued that the learned Magistrate did appreciate that the imposition of a spent conviction order involved more than compliance with the criteria referred to in s 45 of the Sentencing Act. He was intimately aware of the circumstances of the case and exercised his discretion to make a spent conviction order on proper grounds.

50 As both parties placed considerable reliance upon the decision of the Full Court in R v Tognini (supra), and especially the judgment of Murray J, albeit from their different perspectives, it will be useful to set out precisely what Murray J had to say at par 27 and par 28:

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"In my opinion it is appropriate to conclude that having regard to its effect on the ordinary operations of the Spent Convictions Act, the discretionary power to make a spent conviction order conferred by s 45 of the Sentencing Act should be regarded as being of an exceptional character. If the necessary pre-conditions are established, the court should go on to have regard to the seriousness of the offence before it in the circumstances of its commission and in the circumstances personal to the offender. It should take as the ordinary rule the fact that a conviction will be a matter of record with all the consequences that may entail into the future. It should therefore look to see whether there is some particular circumstance to show that it would be desirable, not only from the point of view of the offender but also, having regard to his or her rehabilitation, from the point of view of the community, why the adverse effect of the conviction should be immediately set aside.

That may often be found in the fact that the conviction, if not declared to be spent, might be a particular impediment to the offender following a particular career, practising a particular profession or undertaking particular employment. It may be that it will be the case that that would be productive of exceptional hardship to the offender and his family, or it may simply be that it can be seen that to relieve the offender of the adverse effects of the conviction will positively aid that person's rehabilitation in a way which may be seen to best accord with the interests of the community. The court may be aided to reach that conclusion if it thinks that there is no pressing public interest in being able to continue to have access to the fact of conviction as part of the process of securing the protection of the community."

51 In the present case, having examined the line of reasoning employed by the Magistrate, I am not persuaded that the appellant has identified errors of the kind referred to in the order for leave to appeal, or that the court at first instance has failed to properly exercise its sentencing discretion. Looked at in overview, I am satisfied that the Magistrate proceeded in the manner required by the Sentencing Act and the provisions of the Wildlife Conservation Act. He directed his attention to the seriousness of the offences and then moved to the circumstances of the offences and to the aggravating and mitigating factors. It is true that another mind may have placed greater emphasis upon one feature of the

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case, rather than those features highlighted by the Magistrate, but the considerations outlined by the learned Magistrate were undoubtedly relevant to the matters of discretion involved in the sentencing process. I am not satisfied that he failed to apply the sentencing options in the prescribed order or that he failed to give sufficient weight to the seriousness of the offences. Further, the Magistrate was clearly conscious that for an offender with bona fide scientific interests and a background of community service within his specialty, a criminal record could have an unduly adverse effect upon the offender's future prospects, and thus spent conviction orders were appropriate. It is against the background of these general observations that I proceed to the specific grounds of appeal.

52 The appellant contends in ground (a) that the learned Magistrate erred in law and in fact in imposing a conditional release order pursuant to s 47 of the Sentencing Act in relation to each offence when he found that the respondent would not reoffend without having sufficient regard to the number of offences, the prolonged period over which the offences were committed, the late plea of guilty and the content of the plea in mitigation. In regard to this ground, I am satisfied that the learned Magistrate gave sufficient weight to the seriousness of the offences and appropriate consideration to the aggravating and mitigating factors. In particular, he took account of the fact that the respondent did not commit the offences for profit and did not have any prior convictions. The deliberate nature of the respondent's actions was ameliorated to some extent by the context, namely, his commitment to research.

53 In ground (b) it is said that the learned Magistrate erred in law and in fact in finding that he could not impose a fine solely by reference to the respondent's capacity to pay a fine. In regard to this ground, it follows from my earlier observations that the learned Magistrate's stance concerning the fine, when viewed in context, was arrived at against the background of his earlier observations concerning aggravating and mitigating factors. The learned Magistrate recognised the reality that the court had before it 13 different offences and, in all the circumstances, a reasonably significant monetary penalty would be required in relation to each. It was against that background that the question of the respondent's capacity to meet the fines came under notice. Before arriving at any determination concerning the fine, the learned Magistrate reviewed those factors relevant to the imposition of a conditional release order and it was in that context, and after balancing the various considerations, that the learned Magistrate resolved that a fine was not appropriate. Accordingly, I am not persuaded to the view implicit in this ground of appeal that the

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decision not to impose a fine was made solely by reference to the respondent's capacity to pay.

54 By ground (c) the appellant contends, in the alternative, that the learned Magistrate erred in law and in fact in failing to impose a fine in relation to the offences, having regard to the serious nature of the offences, the maximum penalty for each offence, the need for specific and general deterrence and the capacity of the respondent to pay a fine. It follows from earlier discussion, that this ground of appeal fails. The imposition of a conditional release order was an option available to the Magistrate. The question then becomes whether he made some error in the exercise of his discretion. It follows from my earlier observations that an error of the kind required has not been demonstrated. The conditional release orders were accompanied by provision for security that would lead to payment of a significant financial penalty if the respondent reoffended.

55 The appellant contends in ground (d) that the learned Magistrate erred in law and in fact in granting a spent conviction order pursuant to s 45 of the Sentencing Act when there was insufficient evidence by which the court could be satisfied that the respondent was unlikely to commit such an offence again and that he should be relieved immediately of the adverse effect of the conviction. I am not satisfied that the appeal should succeed on this ground. It was an undisputed fact that the respondent had no prior record and this was known to and taken account of by the learned Magistrate. References were available testifying to the good character of the respondent and these references were supported by the evidence of Dr Aplin. The learned Magistrate was also entitled to take account of the community services rendered by the respondent on previous occasions.

56 It is apparent from the dicta of Murray J in R v Tognini (supra) that consideration should be given to ordering a spent conviction in circumstances where such a step may have the effect of relieving the offender of the adverse effects of the conviction so as not to impede his profession or employment and to aid that person's rehabilitation in a way which may be seen to best accord with the interests of the community. It seems to be implicit in the learned Magistrate's reasoning that the respondent's standing as a senior figure in the Herpetologists' Society could be prejudiced if he were burdened by previous convictions. There was no direct evidence that the respondent's employment would inevitably be prejudiced by a record of various convictions, but there was certainly a risk that he would be adversely affected. Accordingly, in the circumstances, I am not satisfied that the learned Magistrate erred in granting a spent conviction order in the circumstances of the present case.

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57 The appellant contends in ground (e) that the learned Magistrate erred in law in failing to grant an order of forfeiture pursuant to s 27 of the Wildlife Conservation Act in relation to the items of equipment seized by wildlife officers. On the hearing of the appeal, the respondent's position was that in light of the reasoning of Owen J in Coughran v Newing, unreported; SCt of WA; Library No 930720; 17 December 1993, this ground of appeal would be conceded. Accordingly, having regard to that concession, an order for forfeiture will be made.

58 I will hear counsel as to the precise orders to be made. In essence, however, as to grounds (a) to (d), the appeal will be dismissed and no order will be made. As to grounds (e) to (f), the appeal will be allowed and an order of forfeiture will be made in relation to the items of equipment specified in par 7 of the affidavit of Kate Elena McDonald, sworn 17 February 2000, pursuant to s 27 of the Wildlife Conservation Act 1950.