Rusby v Kerley - [2002] SASC 141

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a plea to the first and second counts on the understanding that though the third, fourth and fifth counts were to be withdrawn the allegations contained in those counts would be maintained.
Thereupon the respondent pleaded guilty to Counts 1 and 2 and Counts 3, 4 and 5 were withdrawn.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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rusby v Kerley

Details

AGLC: Rusby v Kerley [2002] SASC 141
Case: [2002] SASC 141
Decision Date: 9 May 2002

CaseChat Overview and Summary

The case of Rusby v Kerley involved a prosecution appeal against a sentence imposed by a magistrate on the respondent. The respondent was found guilty of two counts of engaging in a prescribed class fishing activity in breach of the Fisheries Act 1982 (SA) and the Fisheries (General) Regulations 2000 (SA). The prosecutor argued that the magistrate erred by not recording convictions and by imposing fines that were manifestly inadequate. The court examined the purpose of the Fisheries Act, which is to protect and conserve the fisheries in the state by regulating fishing activities. The court noted that the respondent had used more than three yabby pots and taken more than 200 yabbies in one day, in breach of the regulations. The court found that the magistrate had taken into account irrelevant factors and failed to consider relevant factors in sentencing the respondent. The court held that the offences were serious and that convictions should have been recorded. The appeal was allowed, the sentence set aside, and the respondent was convicted on both counts. Fines and levies were confirmed as imposed by the magistrate, and an additional penalty under section 66 of the Act was imposed. Orders for forfeiture of the yabby pots, yabby bin, and yabbies were also confirmed.

Orders