Rusby v Kerley

RUSBY V KERLEY
[2002] SASC 141
Magistrate’s Appeal (Criminal)

LANDER J: This is an appeal by the prosecutor against a sentence imposed in the Magistrates Court on the respondent.
The appeal is regulated by s 42 of the Magistrates Court Act 1991 (SA). That section allows “a party to a criminal action …” to appeal against any “judgment” given in the action. It is clear from the terms of s 42 that a prosecutor can appeal against a penalty imposed in the Magistrates Court.
However being a prosecution appeal the prosecutor must comply with the threshold test enunciated in Everett v The Queen (1994) 181 CLR 295 and applied in Police v Cadd& Ors (1997) 69 SASR 150.
This appeal must therefore proceed upon the basis that appeals by prosecutors should be rare and exceptional, brought only to establish some matter of principle to afford an opportunity to this Court to lay down principles for guidance of the Magistrates Court for sentencing for offences of this kind: Griffiths v The Queen (1977) 137 CLR 293.
The respondent, who was represented by counsel, was charged with five offences under the Fisheries Act1982 (SA) (the Act). The prosecutor accepted a plea to the first and second counts on the understanding that though the third, fourth and fifth counts were to be withdrawn the allegations contained in those counts would be maintained.
Thereupon the respondent pleaded guilty to Counts 1 and 2 and Counts 3, 4 and 5 were withdrawn.
The two counts to which the respondent pleaded were in the following form:
“Count 1:
On 31 January 2001, near Wongulla, on the River Murray, being waters of the said State, engaged in a fishing activity of a prescribed class, namely an activity described in paragraph 10 of Schedule 1 of the Fisheries (General) Regulations, 2000.
Contrary to s 41 of the Fisheries Act1982 and regulation 5 of the said Regulations.
Particulars
(a)The defendant, being an unlicensed person, used in one day more than the prescribed number of three, namely fourteen, yabby pots to take yabbies (Cherax destructor).
AND the complainant alleges the wholesale value of the yabbies taken as aforesaid on the day they were taken was $196.80.
Count 2:
On 31st January, 2001, near Wongulla, on the River Murray, being waters of the said State, engaged in a fishing activity of a prescribed class, namely an activity described in paragraph 72 of Schedule 1 of the Fisheries (General) Regulations, 2000.
Contrary to s 41 of the Fisheries Act1982 and regulation 5 of the said Regulations.
Particulars
(a)The defendant, being an unlicensed person, took in one day more than the prescribed number of 200 yabbies (Cherax destructor), namely a total of 452.
AND the complainant alleges that the wholesale value of the yabbies taken as aforesaid on the day they were taken was $196.80.”
The Magistrate refused to convict the respondent on either count. On the first count he fined the respondent $100 together with court fees of $108.70, a levy of $28.00 and a counsel fee of $250.00. On Count 2 the respondent was fined $300.00 and a levy of $28.00 was imposed.
The Magistrate made orders for the forfeiture of the yabbie pots, a fish bin and made an order confirming the forfeiture of the fish mentioned in the complaint.
The appellant has raised the following two grounds of appeal:
(1)The learned Magistrate erred by failing to record convictions for each offence.
(2) The fine imposed for each offence was manifestly inadequate.
The long title of the Act provides:
“… for the conservation, enhancement and management of fisheries, the regulation of fishing and the protection of certain fish; to provide for the protection of marine mammals and the aquatic habitat; to provide for the control of exotic fish and disease in fish, and the regulation of fish farming and fish processing; and for other purposes.”
Section 20 of the Act provides the objectives of the Act as follows:
“In the administration of this Act, the Minister, the Director and management committees have as their principal objectives:
(a)ensuring, through proper conservation, preservation fisheries management measures, that the living resources of the waters to which this Act applies are not endangered or over exploited; and
(b)achieving the optimum utilisation and equitable distribution of those resources.”
Section 31 of the Act provides:
“The Minister may carry out any research, exploration, experiments, works or operations of any kind for the conservation, management or enhancement of living resources found in waters to which this Act applies or the advancement or promotion of any fishing, fish farming or fish processing activity and for that purpose may carry out any arrangement with any other authority or person.”
The purpose of the Act is clear. It is to protect, preserve, and conserve the fisheries in this State. It does so by regulating the way in which fish can be taken from the waters of this State. In particular the objective of the Act is to ensure that the State’s fisheries are not endangered or over exploited.
Section 41 of the Act provides:
“A person must not engage in any fishing activity of a prescribed class.
Penalty: For a first offence - division 7 fine; for a second offence - division 6 fine; for a subsequent offence - division 5 fine.
Expiation Fee: A fee determined in accordance with the regulations.”
“Fishing activity” is defined in s 5 of the Act to mean “the act of taking fish, or an act preparatory to, or involved in, the taking of fish;”.
Regulation 5 of the Fisheries (General) Regulations2000 (SA) (the Regulations) under the Act provides:
“For the purposes of section 41 of the Act, each class of fishing activity described in Schedule 1 is a fishing activity of a prescribed class.”
Paragraph 10 of Schedule 1 of the Regulations provides:
“The taking of fish by an unlicensed person in the River Murray proper by using -
(a)....
(b)....
(c)at any one time -
(i)     ....
(ii)    ....
(iii)   more yabbie pots than three; or....
… ”
The expression yabbie pots is defined in the Regulations:
“‘yabbie pot’ means a fish trap designed and constructed for the purpose of taking yabbie (Cherax destructor).”
Paragraph 72 of Schedule 1 provides:
“The taking in any one day by an unlicensed person of more than 200 yabbies (Cherax destructor) in the waters of the State.”
Thus, it is an offence for an unlicensed person to take fish using more than three yabbie pots or to take more than 200 yabbies in any one day.
Bearing in mind the definition of fishing activity, the Regulations and the Schedule have the effect of making an act preparatory to or involved in the using of more than three yabbie pots an offence.
Those separate offences carry a Division 7 fine, which is a fine not exceeding $2,000: s 28A Acts Interpretation Act1915 (SA).
Section 66 of the Act 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 to be taken to have a wholesale value equivalent to that of a fish of the same species taken not in contravention of this Act.”
Section 66 only applies where a person is convicted of an offence under the Act and only applies when the offence involves fish taken in contravention of the Act. However, if a conviction is imposed for such an offence the court must impose the penalty referred to in the section.
On this appeal the prosecutor in particular complains about the Magistrate’s failure to enter a conviction on either count and his failure to impose a penalty under s 66 of the Act. Although the second ground of appeal complains that the fine for each offence was manifestly inadequate that complaint was not pursued on appeal. Indeed it was expressly abandoned. The appellant’s counsel restricted her complaints to the two matters to which I have referred.
The prosecutor alleged in the Court below that at about 8.30am on 31 January 2001 fisheries’ officers patrolling the River Murray observed the respondent preparing to lift and set fishing pots. The respondent was in a dinghy with a companion. The respondent was spoken to and the dinghy inspected and the fisheries officers found a 40 litre tub which contained a quantity of 452 yabbies.
The respondent was questioned about the catch. He took the fisheries officers to Wongulla Lagoon where he showed them the yabbie pots which he had used to take the catch. The pots were in the water. Twelve pots were pulled up. The respondent admitted that he had originally set 14 pots. He explained that two had been stolen overnight.
The respondent was interviewed and during that interview he said:
“Yeah, I’ve got nothing to hide. I was doing it illegally.”
The fisheries officers seized the yabbies, pots and the tub.
The pots used by the respondent should have had a white coloured buoy attached to them and tags identifying the owner. The buoy and the tags are used to allow fisheries officers to police fisheries.
The pots should have had funnels with a diameter not exceeding 7.5 centimetres. The purpose of restricting the size of the funnel is to prevent larger fish and other species like turtles, water birds and water rats from getting trapped in the pot.
The respondent admitted that he had cut out the funnels in some of the pots because he was not catching yabbies in them.
He did not assert that anyone had assisted him to set or lift the pots. He did not assert that the pots were owned or belonged to anyone else. He did not assert that any of the yabbies belonged to anyone else other than him.
His companion was also interviewed. She agreed with everything said by the respondent. She did not claim to have set or pulled the yabbie nets. She did not assert that she was entitled to any of the yabbies.
The fisheries officers would have reasonably understood from their observations and their interview of the respondent that the respondent was responsible for and acknowledged himself to be responsible for the setting and pulling of the yabbie pots and the taking of the 452 yabbies. They also would have reasonably understood from what they were told by the respondent, that the respondent was responsible for the yabbie pots having the wrongly coloured buoy, being untagged and being of the incorrect dimensions.
The prosecutor brought to the attention of the Magistrate the maximum penalty for each of the offences. He submitted that in respect to the first count the respondent had used more than four times the permitted number of pots and in respect to the second count he had taken more than double the permitted number of yabbies.
He submitted to the Magistrate that the legislation was regulatory. The legislation requires the cooperation of the fishing community and offences such as these are easy to commit and difficult to detect particularly where pots are camouflaged and unlabelled.
He said that in relation to offences of this type the courts have repeatedly emphasised the importance of both personal and general deterrence as a sentencing objective. He also submitted that the courts have emphasised that the starting point for achieving deterrence is the imposition of a conviction.
He submitted that the respondent’s conduct was not trivial it did not occur through inadvertence, the respondent admitted that he knew what he was doing was illegal and illegal activity such as this results in the depletion of the State’s fisheries.
He drew to the attention of the Court the provisions of s 66 of the Act which he said would require an additional penalty of $984 being five times the yabbie wholesale value of $196.80. He sought the forfeiture of the 12 yabbie pots, the fish bin and the 452 yabbies.
He informed the Court that whilst the respondent had no prior convictions he had received an expiation notice on 5 January 1998, in the amount of $100, for using an unregistered gill net in the River Murray in circumstances where the use of a net was not permitted.
The appellant’s submissions to the Magistrate were in conformity with the particulars given with respect to the counts for which the respondent had pleaded guilty and those counts which had been withdrawn but the facts maintained.
The submissions were also in accordance with the Act and the Regulations.
The respondent’s counsel admitted the receipt of the expiation notice. He claimed that it was issued in relation to a single gill net which was not the property of the respondent and from which the respondent had extracted one carp.
In relation to the matters that were then before the court he submitted that Wongulla Lagoon is close to a public road, very shallow and easily accessible to passers‑by.
A number of new yabbie pots belonging to the respondent had been stolen from this location on two occasions prior to 31 January 2001.
He submitted that three or four of the yabbie pots belonged to the respondent and the rest were the property of the respondent’s friends. The 14 yabbie pots were set by the four owners of the pots including the respondent.
The respondent’s three friends did not accompany him to lift the pots because they had consumed alcohol on the night before and were “a bit under the weather”.
The yabbie pots which had previously been stolen did have identification tags attached to them. On this occasion the respondent did not turn his mind to attaching identification tags to the yabbie pots because it was “a spur of the moment” decision to set them.
Counsel submitted that the matter could have been disposed of by an expiation notice which would have avoided the respondent being convicted. The wholesale value of the catch was less than $200. The respondent would not have committed an offence had the other three yabbie pot owners assisted the respondent in lifting the pots. The respondent had cooperated in showing the fisheries officers the 12 yabbie pots and even where the other two stolen yabbie pots had been located. The respondent had taken responsibility for the full catch even though he was accompanied by another person.
It was the respondent’s custom to return female and smaller undersize yabbies to the river, in which case he may not have been in possession of more than the prescribed number and that it was his intention to do this on this occasion.
It was submitted that the marker buoys were marked green rather than white not to evade fisheries officers but to evade thieves. Buoys which are coloured green are difficult to observe in the River Murray.
It was submitted that the Magistrate ought to proceed under s 16 of the Criminal Law (Sentencing) Act1988 (SA) (the Sentencing Act) and impose a penalty without recording a conviction.
After the respondent’s counsel had concluded his submissions the Magistrate advised the prosecutor that those submissions seemed totally plausible and in the absence of any evidence to the contrary he would sentence on the basis of those submissions.
The prosecutor submitted to the Magistrate that it was open to him to reject the submissions but that he was not in a position to adduce evidence to contradict those submissions.
The Magistrate then proceeded to sentence.
I set out the Magistrate’s sentencing remarks in their entirety:
“The defendant in this matter has pleaded through counsel, to two counts of engaging in the fishing activity of the prescribed class. Those counts are alleged by way of particulars, that he, firstly, used in one day, more than the prescribed number of three yabby nets; namely, 14 yabby pots and secondly, he took in one day, more than the prescribed number of 200 yabbies; namely, a total of 452 yabbies. At first blush, the offences seem to be particularly serious, as is suggested by the prosecution. One person, taking or having four and a half times the number of yabby pots, none of which were appropriately marked and taking two and half times the number of yabbies that he was entitled to take, does sound on first blush like a serious offence and one where the prosecution, rather than the use of an expiation notice, was appropriate, but even with the alleged massive over‑fishing, the wholesale value of the fish alleged is not certainly one of the higher ones that I have seen; it is less than $200.
In fact however, even the objective facts as seen by the fishery officer, don’t support the assertion. Mr Kerley was seen to lift some yabby pots. He was or he and his companion, were detected with 452 yabbies. They were each entitled to take 200 yabbies. Mr Kerley said to the fishery officers that he pulled all of the nets, therefore taking responsibility for all of those yabbies and I might say, that he also showed the fisheries’ officers where the 12 pots that they located were and admitted that two further pots also were set; that had been stolen. He has been prosecuted as if those two pots, as well as the 12 there, were used by him. The facts as put to me by the defence and which I’m bound to accept, as they seem totally plausible, are that the pots were in fact, set by four individuals. The buoys were marked green rather than white, not to evade the fishery inspectors, but to evade thieves, who took two of the pots that were set.
I’m also told and I accept, that upon returning to his shack, it is Mr Kerley’s usual practice to sort through his catch and to return to the aquatic environment those, that are in his perception, small and any females. Where there would have been in fact, more than 200 yabbies after such an exercise had been undertaken, is a matter of conjecture.
I have no information before me, as to why the fisheries’ officers chose to deal with this matter in the way that they did. It is my view, that had the matter been properly investigated on the day and that investigation then yielded the facts that have been put before me today, it would have been appropriate to deal with this matter by way of an expiation notice, rather than by way of prosecution. It is my view that the Expiation of Offences Act is in place to deal with the majority of offences and to avoid incurring time and cost to all parties in prosecuting these matters through the court. Where a matter such as this, can and should have been dealt with by an expiation notice and was not, it is my view that a penalty should be imposed that reflects the severity as it would have been, had an expiation notice been imposed, that is, no conviction should be recorded and the penalties imposed should be as they would have been, had an expiation notice been imposed. As it is, further penalties become involved as a result of court costs and counsel fees, in any event, but quite, either the most serious consequence of a prosecution, is that it leaves the defendant open to having a conviction recorded against him.
It is my view a conviction should not be recorded for the reasons given. Count one is without conviction; fine of $100, court fees of $108.70, levy of $28 and counsel fee of $250. Count two is without conviction; fine of $300 and levy of $28.
Orders of forfeiture in relation to the pots and the fish bin and an order confirming the forfeiture of the fish, as mentioned in the complaint.”
It is clear from those remarks that his Honour accepted all the submissions put by the respondent’s counsel.
I think it can be assumed that he proceeded on the following basis:
(1)Whilst the yabbie pots did not have the correctly coloured buoys attached that was to thwart thieves.
(2)Fourteen pots were set by the four individuals.
(3)Two were stolen.
(4)The respondent pulled all of the remaining twelve yabbie pots.
(5)452 yabbies were taken by the respondent and another person, each of whom were entitled to take 200 yabbies.
(6)The respondent’s usual practice, on returning to his shack, was to sort through the catch and return to the water all of the small and female yabbies.
(7)The practice may have meant that less than 200 yabbies would have been taken.
(8)The prosecutor should not have brought these proceedings but should have caused an expiation notice to issue.
(9)No convictions should be recorded.
(10)The penalties ought to reflect the penalty which would have been payable on an expiation notice.

The appellant has submitted on this appeal that the Magistrate was wrong to sentence the respondent on any basis other than that the respondent was responsible for setting and pulling 14 yabbie pots and for taking 452 yabbies.
It was submitted that the fact that other persons may have assisted the respondent to set the pots on the previous day was not relevant to the commission of the offence, which is taking yabbies by using more than three yabbie pots and taking more than 200 yabbies in any one day.
I agree with that submission.
The respondent did not assert, nor could he, in my opinion, that he did not take the yabbies by using more than three yabbie pots. It was the respondent who was responsible for the taking of the yabbies. That someone else had helped to set the pots is irrelevant in my opinion. The respondent submitted that he took yabbies using only twelve pots because two pots were stolen. There was no evidence that he took yabbies from the stolen pots. However, it was still relevant to proceed on the basis that the respondent was responsible for 14 yabbie pots. The definition of fishing activity is an act preparatory to or involved in the taking of fish: s 5 of the Act.
It is not relevant, in my opinion, that there was someone else with the respondent when the respondent took more than 200 yabbies. The respondent did not suggest the person with him was responsible for taking any yabbies. Indeed, both he and his companion told the fisheries officers the respondent was responsible for taking the 452 yabbies. Her presence in the dinghy was therefore irrelevant. It follows that the respondent should have been sentenced on the basis that he took 452 yabbies.
Further, it was not relevant in my opinion that the respondent had a practice of returning yabbies to the river if he found them to be undersize or female.
The yabbies were taken when they were placed in the bin. The time to return the yabbies, so as to allow it to be said that the yabbies were not taken, was forthwith upon lifting the net. Section 5(4) of the Fisheries Act provides:
“For the purpose of this Act, a fish will not be regarded as having been taken if it is taken but forthwith returned to the water unencumbered in any way and with as little injury as possible.”
In sentencing the respondent the Magistrate, in my opinion, took into account a number of irrelevant matters.
The respondent asserted that wrongly coloured buoys were attached to the pots to thwart thieves. Of course that colour would also have made it more difficult for thieves but also for the fisheries officers to detect the buoys. No explanation was given for the absence of tags. No satisfactory explanation was given for the size of the funnels. These were matters to which the Magistrate did not have regard but should have.
The respondent has argued that it was a matter for the Magistrate as to whether or not a conviction should have been recorded. It was argued that it is not for this Court to substitute its discretion in that regard for the Magistrate.
I agree, on any appeal whether by a prosecutor or a convicted person, it is not for this Court simply to exercise its discretion and substitute its exercise of discretion for that of the Magistrate.
The Magistrate’s exercise of discretion should stand unless it can be shown that the Magistrate had regard to irrelevant factors, failed to have regard to relevant factors or erred in principle: House v The King (1936) 55 CLR 499.
In this case, in my opinion, the Magistrate did have regard to irrelevant factors. He also failed to have regard to relevant matters. In those circumstances it is appropriate for this Court to exercise its discretion afresh.
This Court however will not interfere with the Magistrate’s sentence unless this matter is one which would come within the principle established in Everett v The Queen (supra). In my opinion this is such a case. It is important that magistrates approach sentencing for offences of this kind with the correct principles in mind.
The first question to be decided is whether, having regard to the matters relevant to the offences, convictions should be entered on the counts to which the respondent pleaded guilty.
Section 16 of the Sentencing Act provides:
“Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion -
(a)That the defendant is unlikely to commit such an offence again; and
(b)That, having regard to -
(i)     the character, antecedents, age or physical or mental condition of the defendant;
(ii)    the fact that the offence was trifling; or
(iii)   any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose a penalty without recording a conviction.”
Offences under the Act are termed regulatory offences. Previous decisions of this Court have suggested that merciful provisions like s 16 of the Sentencing Act should only be invoked in aid of a defendant and exercised sparingly: Hemming v Neave (1989) 51 SASR 427; Piva v Brinkworth (1992) 59 SASR 92, 96; Ly v Glover (1989) 150 LSJS 449, 453. In regulatory offences the deterrent aspect of punishment is paramount.
The Act controls the exploitation of a valuable resource in this State. It seeks to regulate how persons may exploit the resource and the extent to which the resource may be exploited. Because of the vastness of the inland waters and the sea waters within the State it is difficult to detect those persons who refuse to comply with regulations imposed by the Act and who would seek to over‑exploit the resource. Having regard to that, the circumstances where there is good reason for not recording a conviction are less likely to arise than where a person is before the Courts on other offences.
It has been suggested that it is paradoxical that persons charged with offences of this kind are less likely to be offered the mercy of not having a conviction recorded; Hemming v Neave (supra) at 428. Regulatory offences are viewed less seriously by Parliament and by society than criminal offences. They usually carry a lesser penalty and rarely a term of imprisonment. In these circumstances why shouldn’t the section be invoked?
The offence is likely to be committed by persons who would not normally commit more serious criminal offences. The penalty is usually not a burden to the offender. The real penalty is in the recording of a conviction. The stigma and embarrassment of the conviction provides both the present and general deterrent effect.
However, that does not mean that s 16 of the Sentencing Act is not available in the appropriate circumstances. In my opinion, notwithstanding these are regulatory offences, s 16 of the Sentencing Act is available to a magistrate if the criteria within the section are made out.
Section 16 of the Sentencing Act is in a different form now than when it was first enacted. Originally the introduction of the section was in the following terms:
“Where a court finds a person guilty of an offence for which it proposes to impose a fine (but no other penalty) and the court is of the opinion …”
When the section was in those terms two Judges of this Court in separate decisions construed s 66 of the Act to preclude the operation of s 16 of the Sentencing Act: Glover v Haseldine (1990) 48 A Crim R 118; Glover v Zouroudis (1990) 54 SASR 200 per Jacobs J; Glover v Romanowcyz (1991) 55 SASR 524 per White J.
More recently and since the amendment of s 16, which deleted reference to “(but no other penalty) …” and included reference to community service orders, Judges of this Court have taken a different view.
Perry J has doubted whether the earlier decisions could now be regarded as applicable having regard to the amendments: Clark v Glover; Hemming v Clark (1992) 58 SASR 571. He described these earlier decisions as now “open to question”.
In Hemming v Mundy [2001] SASC 105 Martin J distinguished the earlier decisions of Jacobs J and White J by reason of the deletion of the words to which I have referred and concluded that s 16 of the Sentencing Act was available in prosecutions under this Act, even where s 66 of the Act would otherwise have operated. In the case of Hemming v Dale [2002] SASC 40, Doyle CJ assumed the operation of s 16 in circumstances where s 66 operated. Without referring to this point he approved the decision of Martin J in Hemming v Mundy (supra).
I agree with the conclusion reached by Martin J’s construction of s 16 and its interaction with s 66.
I would have reached the same conclusion for the same reason given by Martin J and for a further reason. I do not think the earlier decisions are correct. I do not believe that s 66 prevented resort to s 16 even before it was amended.
I do not think that the provisions of s 66 of the Act prevent a magistrate invoking the provisions of s 16. Section 66 of the Act does not come into play until such time as a conviction has been imposed. In those circumstances it seems to me that s 66 of the Act does not prevent a magistrate from refusing to record a conviction pursuant to the provisions of s 16 of the Sentencing Act. On the other hand, if a magistrate does impose a conviction then it seems to me he or she must impose the additional penalty under s 66 of the Act based on the value of the fish taken unlawfully.
I believe that if a magistrate proposes only to impose a fine and no other penalty the magistrate is entitled to invoke s 16. The magistrate is not prevented from doing so because of the provisions of s 66. Section 66 only operates in its terms if the magistrate does not have resort to s 16. Then effect must be given to it. The first question, however, must always be ‘should a conviction be entered?’ Of course, it would be quite wrong for a magistrate to have to resort to s 16 simply to avoid imposing the further penalty provided for in s 66. Section 16 should only be used where the magistrate only intends to impose a fine and all the remaining criteria have been made out. In that regard I agree with Jacobs J’s reasons in Glover v Zouroudis (supra) at 203.
In this case the Magistrate did not say why he invoked the provisions of s 16 of the Sentencing Act. It might be inferred from his reasons that he believed the offence was trifling. That may be inferred from his references to the Department’s failure to issue expiation notices. It might be that he believed the future to issue an expiation notice amounted to extenuating circumstances. Mr Edwardson, who appeared for the respondent both before the Magistrate and on this appeal, suggested that the Magistrate must have been satisfied that extenuating circumstances existed which provided good reason for not recording a conviction. We can only speculate because the Magistrate did not say what placitum of the section he was proceeding with. If it was ‘extenuating circumstances’ he did not identify those circumstances.
For the Magistrate to invoke the provisions under s 16 he needed to be satisfied, first, that the respondent was unlikely to commit such an offence again. Secondly, that having regard to the character, antecedents, age or physical or mental condition of the respondent or that the offence was trifling or for any other extenuating circumstances good reason exists for not recording a conviction.
The Magistrate did not say he was satisfied of the first matter. He did not indicate what it was that he had regard to in relation to the second matter. Finally, he did not identify the good reason existing for not recording a conviction.
In my opinion the Magistrate erred in his approach to the exercise of the sentencing discretion for these offences.
The sentence therefore must be reconsidered by this Court.
I believe the offences were serious. I believe that the evidence discloses the respondent deliberately, intentionally and knowingly breached the Act. He pulled more than four times the number of pots he was entitled to pull. He took more than twice the number of yabbies he was entitled to take.
In my opinion, notwithstanding everything which has been put on behalf of the respondent both before the Magistrate and before me, these offences called for the imposition of convictions.
The respondent will be convicted on both counts.
I do not believe it was appropriate for the Magistrate to proceed upon the basis that the fine should be regulated by the expiation fee which might have been payable if a notice had been issued. However, the appellant expressly did not seek any increase in the fines.
In those circumstances I should confirm the fines as imposed by the Magistrate and impose the same levies.
There must be an order for forfeiture in the terms imposed by the Magistrate.
There is no reason why the provisions of s 66 should not apply. There will be an additional penalty of $984.
The orders of the Court are:
1      The appeal is allowed.
2      The sentence imposed by the Magistrate is set aside.
3      The respondent is convicted on both counts.
4      The following sentences are imposed.
1      On count 1
                  Fine $100
Court Fees $108.70
Levy $28
Counsel Fee $250
2      On count 2
Fine $300
Levy $28
3      Order that the pots and yabbie bin be forfeited.
4      Order confirming forfeiture of the yabbies.
5An additional monetary penalty under s 66 of the Act of $984 is imposed.
I will hear the parties as to the cost of the appeal.

[2002] SASC 141

9 May 2002