Plunkett v Lewis - [2007] SASC 397

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PLUNKETT v LEWIS
[2007] SASC 397
Judgment of The Honourable Justice Sulan
13 November 2007
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - COMMUNITY BASED ORDERS
Appellant was convicted of three offences contrary to the Fisheries Act 1982 and Fisheries (General) Regulations 2000 - appellant was sentenced to pay a fine for each of the offences and received an additional pecuniary penalty pursuant to s 66 of the Fisheries Act - Magistrate found that appellant was unable to pay a fine and consequently ordered that the appellant perform community service - Magistrate considered that he was unable to impose community service in lieu of the penalty pursuant to s 66 - held, allowing appeal, Magistrate erred in sentencing the appellant - Magistrate's finding that the appellant was unable to pay a fine led logically to the conclusion that he was unable to pay a penalty pursuant to s 66 - Magistrate had power to order community service in lieu of the penalty pursuant to s 66.
Criminal Law (Sentencing) Act 1988 s 3, s 10, s 18, s 18A, s 70I, s 70L; Fisheries Act 1982 s 28, s 44, s 66; Fisheries (General) Regulations 2000 reg 7, reg 23, referred to.
Hemming v Perkins; Hemming v Stemberger (1999) 74 SASR 307, applied.
Golden Eggs Pty Ltd v City of Port Adelaide [2005] SASC 279; Mill v The Queen (1988) 166 CLR 59; Postiglione v The Queen (1997) 189 CLR 295, considered.

PLUNKETT v LEWIS
[2007] SASC 397
Magistrates Appeal

SULAN J: The appellant, Percy Gordon Plunkett, pleaded guilty in the Mount Gambier Magistrates Court to the following offences: first, that on 17 November 2006 at Mount Gambier he had in his possession fish taken in contravention of s 44(2)(a) of the Fisheries Act 1982 (‘the Act’); secondly, that on 17 November 2006 at Mount Gambier he had in his possession fish of a prescribed class, contrary to s 44(2)(b) of the Act and reg 7(1) of the Fisheries (General) Regulations 2000 (‘the Regulations’); and thirdly, that on 17 November 2006 at Mount Gambier he used abusive, threatening and insulting language to Fisheries officers engaged in the administration of the Act, contrary to s 28(4)(b) of the Act.
The maximum penalty for each of the first and second offences is a fine of $8000. As to the third offence, the maximum penalty is a fine of $4000. It follows that the maximum total amount which the appellant was liable to pay in fines was $20,000.
Section 44(2)(a) of the Act provides that if a person has in his possession or control fish taken in contravention of the Act, then the person is guilty of an offence. Section 44(2)(b) provides that a person who has in his possession or control fish of a prescribed class is guilty of an offence. Section 28(4)(b) provides that a person who uses abusive, threatening or insulting language to a Fisheries officer engaged in the administration or execution of the Act is guilty of an offence. Section 66 of the Act provides that where a person is convicted of an offence involving fish taken in contravention of the Act, the court must, in addition to imposing any other penalty prescribed by the Act, impose a penalty equal to the lesser amount of five times the amount determined of the wholesale value of the fish or $30,000. The wholesale value of the fish, when multiplied by five, was $1879.20.
The appellant pleaded guilty to each of the charges.
Background facts
On 17 November 2006, police were conducting general inquiries, during which they attended at the appellant’s premises at Mount Gambier. Whilst they were searching the premises, they found 19 rock lobsters located in a freezer at the rear of the house. There were five rock lobster pots in the rear garden of the premises.
The appellant told the police that he had purchased the rock lobsters from an unknown person at Port MacDonnell about one month before. Police seized the lobsters and delivered them into the custody of Fisheries officers.
Eleven of the rock lobsters were under the legal size limit, and all 19 did not have their centre tail fin clipped, in accordance with reg 23(1) of the Regulations. By his plea to the first count, the appellant admitted that he had obtained the lobsters from a person who was unlicensed to catch them or, alternatively, from a person who had caught the lobsters in breach of a licence condition. That is, that the lobsters in his possession had been taken in contravention of the Act.
Fisheries officers spoke to the appellant outside his home on 17 November 2006. A video camera was operating. The appellant swore at the officers. He said, “Fucken’ turn that off, cock sucker. You make me fucking angry”. Later in the conversation, he told the Fisheries officers, “Get fucked. Go get fucked, put that on camera, you cunt. You fucking dog”. Those statements are the subject of the third count.
The prosecutor submitted to the Court that the wholesale value of the rock lobsters was $375.84. Pursuant to s 66(1) of the Act, an additional penalty of five times that amount, totalling $1879.20 was imposed.
The appellant had previously been convicted on 25 March 1999 of using an excessive number of rock lobster pots without escape caps.
As to the incident, counsel for the appellant told the Magistrate that the appellant had been on the beach at Port MacDonnell. He had been approached by a person who agreed to swap the crayfish for two boxes of beer.
The Magistrate imposed one penalty, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (‘the Sentencing Act’). He ordered that the appellant was to perform 240 hours of community service within a period of 12 months. He was ordered to pay the additional penalty of $1879.20.
The Magistrate had regard to the appellant’s age and the fact that his partner is suffering from a very serious illness. The appellant acts as her carer. The appellant is not required to provide 24-hour care. He is able to leave his partner and is not prevented from undertaking community service because of his commitment to her.
In sentencing the appellant, the Magistrate referred to the purpose of the provisions which had been enacted to protect the crayfish industry and to ensure the supply of crayfish is not diminished to a dangerous number. He noted that it was significant offending and a significant breach of the Act for a person to purchase or take crayfish in contravention of the Act, even though that person may not himself have caught the crayfish. He noted that the penalties under the Act must act as a deterrent to ensure that the resource is protected.
The Magistrate considered that the abusive and insulting language that the appellant had used was a serious contravention of the Act. He took into account the additional penalty of $1879.20 and had regard to the appellant’s financial means. He determined that it was not appropriate to impose a fine, and imposed the community service work order.
The appellant appeals against the severity of the sentence.
The appeal
Can fish taken in contravention of the Act have a value?
The appellant’s first submission related to the value of the undersized fish. Counsel for the appellant submitted that undersized fish can have no value because they cannot be traded. Section 66 provides:
(1)Where a person is convicted of an offence against this Act involving fish taken in contravention of this Act, the court must, in addition to imposing any other penalty prescribed by this Act, impose a penalty equal to –
(a)five times the amount determined by the convicting court to be the wholesale value of the fish at the time at which the offence was committed; or
(b)$30 000,
whichever is the lesser amount.
(2)For the purposes of subsection (1), a fish taken in contravention of this Act is be taken to have a wholesale value equivalent to that of a fish of the same species taken not in contravention of this Act.[1]
[1] Fisheries Act 1982, s 66.
Counsel’s submission overlooks s 66(2) which deems the wholesale value to be equivalent to the wholesale value of fish taken not in contravention of the Act. This ground of appeal must fail.
Was the sentence manifestly excessive – should the appellant have been ordered to pay a monetary amount?
Counsel for the appellant submitted that the additional penalty provisions of s 66 did not apply in the case of this offending. I reject that submission. Section 66 is clear in its terms. The appellant was convicted of an offence involving fish which had been taken in contravention of the Act. The appellant admitted that breach. I consider the Magistrate was correct in imposing a penalty pursuant to s 66 of the Act. I will address later in these reasons whether the imposition of a monetary penalty was mandatory.
The appellant’s next complaint, as I understand it, is that the Magistrate was at fault in ordering that the appellant undertake 240 hours of community service, in addition to the penalty imposed pursuant to s 66 of the Act. Counsel for the appellant submitted that the sentence of 240 hours of community service, together with the requirement to pay the sum pursuant to s 66, was manifestly excessive.
There appears to be some confusion in the appellant’s submission. On the one hand, counsel for the appellant submitted to the Magistrate that the appellant was impecunious. The Magistrate, in sentencing the appellant, referred to the appellant’s financial means. The Magistrate said:
I bear in mind your limited financial means. You will be required to pay an additional penalty pursuant to the mandatory provisions of the Legislation that require the imposition of a penalty equivalent to five times the wholesale value of the lobster taken and in this instance that, I am told, will amount to the sum of $1879.20. Bearing in mind your limited financial means I do not consider it appropriate to impose a fine, particularly a fine that you simply could not afford to pay. You are able to do Community Service work. I bear in mind that you do have a personal obligation to your spouse and there may be some difficulties about doing Community Service Work but I do intend to impose a penalty that requires you to perform Community Service Work and acts, I hope, as a sufficient deterrent to you and to others who might see the opportunity of getting some crayfish on the cheap. They were crayfish that were undersized or otherwise obtained in circumstances not authorised by the relevant Legislation.
No details of the appellant’s financial means have been provided. However, no issue is taken by the appellant with the Magistrate’s conclusion that the appellant’s financial means were such that the Magistrate was justified in imposing a community service order rather than a monetary sum. The Magistrate does not appear to have considered whether the pecuniary penalty imposed pursuant to s 66 of the Act could have been reflected in a community service order, nor does he appear to have considered the totality principle. He decided that the penalty imposed pursuant to s 66 was a mandatory monetary penalty and should be treated independently of the fines that were to be imposed for the offences. I will return to that aspect of the matter later.
The confusion to which I refer arises because, before me, counsel for the appellant argued that the imposition of a community service order and the number of hours imposed in lieu of a fine was manifestly excessive. The appellant’s counsel urged me to set aside the community service order and impose one overall fine. That seems contrary to what had been put to the Magistrate, who specifically referred to the hardship any monetary penalty would place upon the appellant. The appellant’s counsel did not challenge that finding, nor did he suggest that the appellant had the means to pay a fine. As no material which contradicts that conclusion is before me, I accept that the appellant’s financial position is as the Magistrate found, namely that he has insufficient means to pay a fine or that, if he were required to pay, it would prejudice the welfare of his dependant. That is, that good reason exists for departing from the penalty provided by the Act.
I now turn to whether the Magistrate considered the overall penalty, including the penalty imposed pursuant to s 66.
In Hemming v Perkins; Hemming v Stemberger,[2] Martin J considered the scheme of the Act and its interrelationship with the Sentencing Act. Section 18 of the Sentencing Act provides:
[2] (1999) 74 SASR 307.
Where, on convicting a defendant or finding a defendant guilty of an offence, the court thinks that good reason exists for departing from the penalty provided by the special Act, the court may sentence the defendant as follows:
(a)     where the special Act prescribes a sentence of imprisonment only for the offence, the court may instead impose –
(i)a fine; or
(ii)a sentence of community service; or
(iii)both a fine and a sentence of community service; or
(b)     where the special Act prescribes a sentence of both imprisonment and a fine for the offence, the court may instead impose –
(i)a sentence of imprisonment only; or
(ii)a fine only; or
(iii)a sentence of community service; or
(iv)both a fine and a sentence of community service; or
(c)     where the special Act prescribes a sentence of imprisonment or a fine in the alternative for the offence, the court may instead impose –
(i)a sentence of community service; or
(ii)both a fine and a sentence of community service; or
(d)     where the special Act prescribes a fine only for the offence, the court may instead impose a sentence of community service.[3]
[3]    Criminal Law (Sentencing) Act 1988, s 18.
Martin J concluded that any additional penalty imposed pursuant to s 66 is to be taken into account in assessing the level of a fine to be imposed under the offence provisions of the Act. In Hemming’s case, the Crown had submitted that the principles of sentencing, such as totality, and the factors to which a sentencing court should have regard referred to in s 10 of the Sentencing Act, are relevant only to the fine to be imposed for the substantive breach. The factors include the circumstances of the offence, the defendant’s plea of guilty, general and personal deterrence, forfeiture, and the effect of the sentence on the defendant. The Court was not entitled, in considering the penalty to be imposed, to have regard to the additional penalty prescribed by s 66.
The Crown submitted that s 44 and s 66 of the Act serve a different purpose. Section 44 of the Act is concerned with criminality of conduct, whereas the penalty under s 66 is calculated by the wholesale value, and it was submitted not relevant to penalties for the conduct.
Martin J did not agree. Martin J concluded that, even if the criteria by which the Court determines the fine is different from that which leads to the imposition of the additional penalty, both are part of the total penalty and there is nothing in the language of the statute that prohibits the Court from having regard to the overall effect of the penalty. I agree.
It is a well-established principle of sentencing that when a number of penalties are imposed for a number of offences, and when there are different penalties which apply and which are accumulated, the Court will, as a last step in fixing a final penalty, consider the total effect and arrive at a final sentence which is just and appropriate. The principle is stated in Thomas, Principles of Sentencing (2^nd edition) at pp 56-57:
When a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong.
That passage was cited with approval in Mill v The Queen.[4] There is no reason why the totality principle should not have relevance to penalties comprising fines and other orders.[5]
[4] (1988) 166 CLR 59; see also Postiglione v The Queen (1997) 189 CLR 295.
[5] See Golden Eggs Pty Ltd v City of Port Adelaide [2005] SASC 279.
The Magistrate does not appear to have considered the application of the totality principle when determining the pecuniary penalty imposed under s 66.
A further question arises whether s 18(d) of the Sentencing Act applies in respect of the pecuniary penalty imposed in accordance with s 66. The Act is a special Act by virtue of the definition in s 3 of the Sentencing Act which provides that a ‘special act’ means an act, regulation, rule, by-law or other legislative instrument that creates an offence or prescribes a penalty for an offence.
The question to be considered is whether the additional penalty provided by s 66 is a fine. A fine is a sum of money ordered to be paid to the Crown by an offender or punishment for his offence.[6] The penalty imposed pursuant to s 66 has the characteristics of a fine. Before the penalty can be imposed, the defendant must be convicted of an offence under the Act. The characteristics of a fine include that it is a monetary sum ordered to be paid upon a person committing an offence and being convicted of the offence. The penalty in s 66 is not in the nature of a penalty for late payment or a penalty for conduct which does not relate to the commission of an offence. It is not in the nature of an expiation notice or fee. It is linked to a finding of guilt for the offence. The penalty is recoverable in the same way as a fine. It follows that the additional sum payable by reference to s 66 is a fine for the purpose of the Sentencing Act.
[6] See Jowitts Dictionary of English Law, Second Edition.
It was open to the Magistrate, in deciding that good reason existed to impose a community service order in lieu of the fines for the breach of s 44, also to substitute a community service order for the additional pecuniary penalty imposed under s 66 of the Act.
The interpretation I have given to s 18 of the Sentencing Act is further supported by a consideration of the operation of s 70I of that Act, which provides, relevantly:
(1)If the Registrar is satisfied, after an investigation of a debtor’s financial means has been carried out under this Division or on such other evidence as the Registrar thinks sufficient, that the debtor does not have, and is not likely within a reasonable time to have, the means to satisfy the pecuniary sum without the debtor or his or her dependants suffering hardship, the Registrar may remit the matter to the Court for reconsideration under this section.
(2)If the Court before which a debtor is appearing in any proceedings under this Part is satisfied that the debtor does not have, and is not likely within a reasonable time to have, the means to satisfy the pecuniary sum without the debtor or his or her dependants suffering hardship, the Court may, on its own initiative, proceed to reconsider the matter under this section.
(3)On reconsidering a matter under this section, the Court may, by order –
(a)remit or reduce the pecuniary sum; or
(b)revoke the order (or orders) imposing the pecuniary sum and –
(i)make an order for community service or;
(ii)disqualify the debtor from holding or obtaining a driver’s licence for a period not exceeding 6 months; or
(iii)cancel the debtor’s driver’s licence and disqualify the debtor from obtaining such a licence for a period not exceeding 6 months; or
(c)confirm the order imposing the pecuniary sum,
and the Court may make such ancillary orders as the Court thinks appropriate.[7]
[7] Criminal Law (Sentencing) Act 1988, s 70I(1) – (3).

The Magistrate accepted that the appellant was unable to pay a fine, but considered that he had no power to impose a community service order in lieu of the penalty under s 66. However, if the appellant were impecunious, the Registrar would have the power under s 70I(1) to remit the matter to the Court for reconsideration. Under s 70I(2), the Court may reconsider the matter on its own initiative. Upon recommendation, the Court may, pursuant to s 70I(3), make orders including an order to revoke the imposition of a pecuniary sum and, in lieu thereof, make an order for community service. I note that s 70I applies to all pecuniary sums, not merely those described as fines. In my view, it would be illogical for a magistrate not to have power under s 18(d) to order community service in lieu of a penalty under s 66, when there is power under s 70I to so order on review.
As an aside, I note that the powers under s 70I arise only as a consequence of a debtor’s impecuniosity, whereas s 18 enables the substitution of penalties where good reason exists. The tests for the applicability of the provisions therefore differ. However, s 18 is a general provision which relates to sentences of imprisonment and fines. Under s 18(d), which relates to provisions imposing fines only, good reason would, in my view, exist in practice only where the debtor was impecunious, or satisfied similar criteria to those identified in s 70I.
In my view, there was an inconsistency in the Magistrate’s approach. If, on the one hand, good reason existed for departing from the imposition of a monetary penalty in respect of the offences, then logically good reason existed to impose a community service order in lieu of the monetary penalty imposed pursuant to s 66 of the Act.
The Magistrate did not consider whether he should impose a community service order in lieu of that monetary penalty. For that reason, I would allow the appeal. I would set aside the sentence.
Re-sentencing
In re-sentencing the appellant, I have had regard to all relevant matters which were considered by the Magistrate. I agree with the Magistrate, that one sentence pursuant to s 18A of the Sentencing Act should be imposed. The offences all arose out of a breach of the Act and in respect of a single transaction. The total maximum of fines for the offences is $20,000, plus $1879.20.
The penalty for the offences must be such that will act as a deterrent to others. General deterrence and personal deterrence are important considerations. I have regard to the fact that the appellant is not a professional fisherman. I accept that in the case of professional fishermen, who are making large profits from a commercial enterprise, the offending would be considered to be more serious. Nevertheless, the purpose of the Act is to ensure that the management of fisheries and the regulation of fish processing further the aims of conserving and enhancing the fishing industry. It is important for the future to protect the species and to ensure that there are sufficient quantities of fish from year to year, and that the pool of fish is not diminished by over-fishing or catching undersized fish. The lobster industry is an important industry. The value of the industry is substantial.
The abusive language used by the appellant when he was confronted by the fishing inspectors was unnecessary. Fishing inspectors are entitled to be protected from verbal abuse. Their task is a difficult task of supervision and enforcement. Those who subject them to abuse must be deterred from doing so.
If I were to impose a fine, the overall fine, including the s 66 penalty, would be $3000. Counsel for the appellant has not disputed the Magistrate’s finding that the appellant has limited financial means. It is not appropriate to impose a fine he cannot afford. The appellant has not tendered any evidence to establish he has the means to pay an amount of $3000. The Magistrate concluded good reason existed for departing from the monetary penalty and in lieu thereof imposing an order for community service. No error has been demonstrated in the Magistrate’s conclusion. I would substitute a community service order for the monetary penalty.
In considering the amount of community service the appellant should undertake in lieu of the fine, I have had regard to s 70L of the Sentencing Act which provides, in the case of a youth that, for every $100, an amount of eight hours community service is appropriate. Based upon that formula, I would order the appellant to undertake 240 hours of community service.
I have had regard to the appellant’s personal circumstances. Counsel for the appellant submitted that a community service order is not an appropriate penalty for the appellant. It was put to the Magistrate that the appellant was a carer for his sick partner, who suffers from cancer. During the appeal, counsel conceded that he was not a full-time carer, and conceded there is no reason why he is unable to comply with a community service order. Although his partner is seriously ill, he is not required to care for her full time. He is able to undertake community service. I conclude that the appellant is able to undertake community service. There is no reason to reduce the amount of community service.
I would allow the appeal for the reasons I have earlier expressed. I would set aside the sentence imposed by the Magistrate and, in substitution thereof, I would order that the appellant undertake 240 hours of community service within 12 months. I would discharge the order in respect of costs. Having regard to the appellant’s impecuniosity, I make no order for costs or levies to be paid.