Sidhom v Robinson

[2007] NSWLEC 408

Reported Decision: (2007) 154 LGERA 169

Land and Environment Court

of New South Wales

CITATION:

Sidhom v Robinson [2007] NSWLEC 408

PARTIES:

APPLICANT
Jack Mamdouh Sidhom

RESPONDENT
Kate Robinson on behalf of the Department of Environment and Climate Change

FILE NUMBER(S):

60004 of 2007

CORAM:

Preston CJ

KEY ISSUES:

Appeal :- environmental offence - attempting to harm animals in sanctuary zone - offender pleaded guilty - Local Court declined to dismiss charge without recording conviction and instead convicted and fined offender - appeal to Land and Environment Court - applicant seeking to have conviction set aside - conviction cannot be set aside in appeal against sentence but only in appeal against conviction - leave to appeal against conviction required because offender convicted following plea of guilty - appeal only on a question of law alone - whether proposed grounds of appeal concern question of law alone - whether leave to appeal should be granted - alternatively, whether appropriate to exercise discretion to dismiss charge without recording conviction

LEGISLATION CITED:

Crimes (Appeal and Review) Act 2001 s 3, s 31(1A), s 32(1), s 48(1)(a)(b)
Crimes (Sentencing and Procedure) Act 1999 s10 (1), s 10(3), s 21A(3), s 32(1)
Marine Parks Act 1997 s 3, s 16(1)
Marine Parks Regulation 1999 cl 6, cl 7(1)(a)

CASES CITED:

Advanced Arbor Service Pty Limited v Strathfield Municipal Council [2006] NSWLEC 485;
Attorney-General (NSW) v X (2000) 49 NSWLR 653;
Dinsdale v The Queen (2000) 202 CLR 321;
Eurobodalla Shire Council v Wheelhouse [2006] NSWLEC 98;
House v The King (1936) 55 CLR 499;
Murray Irrigation Ltd v ICW Pty Ltd [2006] NSWLEC 23;
Thorneloe v Filipowski (2001) 52 NSWLR 60;
Walden v Hensler (1987) 163 CLR 561;
Williams v The Queen (1986) 161 CLR 278

DATES OF HEARING:

20 June 2007

EX TEMPORE JUDGMENT DATE:

20 June 2007

LEGAL REPRESENTATIVES:

APPLICANT
B Thomas (solicitor)
SOLICITORS
Willis & Bowring Solicitors

RESPONDENT
T Howard (barrister)
SOLICITORS
Department of Environment and Climate Change

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

20 June 2007

60004 OF 2007

JACK MAMDOUH SIDHOM V KATE ROBINSON ON BEHALF OF THE DEPARTMENT OF ENVIRONMENT AND CLIMATE CHANGE

JUDGMENT

1 HIS HONOUR: Jack Sidhom was convicted and sentenced by the Local Court at Nowra following his plea of guilty to an offence against cl 7(1)(a) of the Marine Parks Regulation 1999 of attempting to harm animals in a sanctuary zone. The offence related to the pumping of nippers (an animal) in a location at Jervis Bay which was declared to be a sanctuary zone.

2 A person who has been convicted by a Local Court following the person’s plea of guilty with respect to an environmental offence may appeal to this court against the conviction, but only on a ground that involves a question of law alone and only by leave of this court: s 32(1) Crimes (Appeal and Review) Act 2001.

3 Mr Sidhom has applied for leave to appeal against the conviction imposed by the Local Court on the narrow basis that he should have received the benefit of the dismissal of the charge pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999.

4 If leave were to be granted, Mr Sidhom has foreshadowed that the grounds of appeal would be:

“1. The Local Court did not give sufficient weight to those matters listed in s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 in deciding to record a conviction and not deal with the matter under s 10(1) of the Crimes (Sentencing Procedure) Act .

2. The Local Court did not give sufficient weight to those matters listed in s 10(3) of the Crimes (Sentencing Procedure) Act 1999 in deciding to record a conviction and not deal with the matter under s 10(1) of the Crimes (Sentencing Procedure) Act .”

5 Although the respondent prosecutor does not oppose leave to appeal being granted, the respondent contests that the foreshadowed grounds of appeal involve any question of law alone. The respondent submits that the grounds of appeal seek to impugn the exercise of a sentencing discretion which was based, not only on the application of legal principle, but also on all of the facts of the case. This does not involve a question of law alone: see Williams v The Queen (1986) 161 CLR 278 at 286-287, 301-302 and 314.

6 The parties are in agreement that the application for leave to appeal and any appeal should be heard at the same time and this has been done.

The need for leave to appeal

7 Mr Sidhom’s concern is with the conviction, not the orders made by the Local Court as a consequence of the Court having convicted Mr Sidhom (namely the fine and orders for costs).

8 In Advanced Arbor Service Pty Limited v Strathfield Municipal Council [2006] NSWLEC 485 (8 August 2006), I held that the Land and Environment Court did not have the power, on an appeal against sentence by a person who has pleaded guilty, to quash the conviction: at [13]. The concept of a “sentence” for the purposes of the Crimes (Appeal and Review) Act is expressly defined in s 3 of that Act to “mean” (importantly, not “include”) certain specified types of orders. Of relevance are:

“(a) any order made by a Local Court in respect of a person as a consequence of its having convicted the person of an offence including various usual sentencing orders including imprisonment and fine;
(b) any order made by a Local Court in respect of a person under section 10 or 11 of the Crimes (Sentencing Procedure) Act 1999 on finding the person guilty of an offence;
…

(e) any order for costs made by a Local Court against a person in connection with summary proceedings taken against the person”.

9 The Local Court in this case made orders, first, convicting Mr Sidhom, second, fining him $500 and, third, directing he pay the prosecutor’s costs in a fixed sum and court costs in a fixed sum. Whilst the second order falls within the type of order in paragraph (a) of the definition of sentence in s 3 of the Crimes (Appeal and Review) Act and the third order falls into the type of order in paragraph (e) of that definition of sentence, the first order convicting Mr Sidhom does not fall within any of the types of orders specified in s 3 of the Crimes (Appeal and Review) Act. A conviction cannot be an order made “as a consequence of [the Local Court] having convicted a person of an offence”, so as to fall within the type of orders in paragraph (a). A conviction is not an order under s 10 of the Crimes (Sentencing Procedure) Act. An order under s 10(1) would involve there being no conviction because the Court makes one of the types of orders in s 10(1)(a)-(c) “without proceeding to conviction”. Accordingly, a conviction cannot be an order of the type in paragraph (b) of the definition of sentence. Finally, a conviction does not fall within any of the other types of orders in paragraphs (ba)-(f) of the definition of sentence.

10 Hence, an appeal against a sentence of the Local Court only involves as its subject matter those orders that are of the type specified in the definition of sentence in s 3(1) of the Crimes (Appeal and Review) Act 2001 and the Land and Environment Court’s power to set aside or vary the sentence of the Local Court (under s 48(1)(a) and (b), expanded by s 3(3)) only allows the court to set aside or vary the orders of the Local Court in so far as they are also of the type of order specified in the definition in s 3(1). As I have noted, none of these types of orders include the conviction itself.

11 As a consequence, Mr Sidhom, being a person who has been convicted by the Local Court following his plea of guilty, cannot in any appeal as of right against the sentence, seek to set aside the conviction. Rather, that relief is available only in an appeal against conviction. However, where a person has been convicted following a person’s plea of guilty, such appeal is not as of right (see s 31(1A)) but rather is by leave only and then only on a ground involving a question of law alone (s 32(1) of the Crimes (Appeal and Review) Act 2001.

Whether appeal involves a question of law alone.

12 As I have noted an appeal against conviction by a person who has been convicted by a Local Court following the person’s plea of guilty, is restricted to a ground that involves a question of law alone. This excludes, obviously, questions of fact but it also excludes questions of mixed fact and law: see Williams v the Queen (1986) 161 CLR 278 286-287, 301-302 and 314.

13 The respondent’s grounds of appeal do not allege that the Local Court failed to take into account relevant considerations under s 10(3) or s 21A(3) of the Crimes (Sentencing Procedure) Act in the exercise of the discretion under s 10(1) of the Crimes (Sentencing Procedure) Act, but only that the Local Court did not give (proper) weight to these matters.

14 The attribution of weight to relevant considerations is an essential part of the exercise of the discretion under s 10(1) of the Crimes (Sentencing Procedure) Act. The weight to be given to each relevant consideration is a decision of fact. Misattribution of relative weight to relevant considerations, by itself, does not necessarily involve error of law: Attorney General (NSW) v X (2000) 49 NSWLR 653 at 666 and Eurobodalla Shire Council v Wheelhouse [2006] NSWLEC 98 (6 February 2006) at [7].

15 Hence, it is not open to this Court to allow an appeal against a conviction (which appeal is restricted to questions of law alone) on the basis that, in this Court’s opinion, the Local Court misattributed relative weight to relevant considerations. A question of law alone would not be involved.

16 The result of the Local Court’s exercise of the discretion under s 10(1) of the Crimes (Sentencing Procedure) Act, namely the decision to record a conviction and to impose a fine rather than to not record a conviction and dismiss the charge, is not so unreasonable or plainly unjust as to raise a question of law: see House v The King (1936) 55 CLR 499 at 505 and Dinsdale v The Queen (2000) 202 CLR 321 at 324[3]-325[4].

17 Mr Sidhom submits that, having regard to the objective gravity of the offence and to his personal circumstances, a substantial wrong has occurred as a result of the Local Court’s decision. The circumstances to which Mr Sidhom refers are certain of the matters listed in s 21A(3) and s 10(3) of the Crimes (Sentencing Procedure) Act 1999.

18 In relation to s 21A(3), the matters referred to by Mr Sidhom are:

“(a) the…damage caused by the offence was not substantial”: the pumping only occurred for a short period of time (between ten to fifteen minutes) and whilst any harm done in a marine park is to be avoided, the damage was not substantial in this case;
“(b) the offence was not part of a planned or organised criminal activity”: there is no evidence to suggest that the behaviour of Mr Sidhom was part of any organised criminal activity;
“(e) the offender does not have any record…of previous convictions”: Mr Sidhom has no prior convictions;
“(f) the offender was a person of good character”: the evidence supports the contention that Mr Sidhom is and was a person of good character;
“(g) the offender is unlikely to re-offend”: Mr Sidhom is now fully aware of the restriction that applies in a sanctuary area in a marine park and the evidence clearly demonstrates that he will not re-offend;
“(i) the offender has shown remorse for the offence…”: Mr Sidhom has demonstrated significant remorse; and
“(k) a plea of guilty by the offender”: Mr Sidhom pleaded guilty at the first available opportunity.

19 The matters in s 10(3) referred to by Mr Sidhom are:

“(a) the person’s character, antecedents, age…”: Mr Sidhom is a person of good character, has no antecedents and is fifty years of age;
“(b) the trivial nature of the offence”: Although Mr Sidhom does not suggest that the offence is trivial, nevertheless he submits that it is not simply the nature of the offence that needs to be considered but also the actual circumstances in which the offence is committed: Walden v Hensler (1987) 163 CLR 561 at 577. In this case, Mr Sidhom acted contrary to the law for a short period of time (10 to 15 minutes) in circumstances where when he became aware of or concerned about what was occurring he desisted and left the area in question.


“(c) the extenuating circumstances in which the offence was committed”: Mr Sidhom did not realise the area in question was a restricted area and when he became aware or became concerned (after two separate people had said something) he stopped and immediately left the area. This is an extenuating circumstance relevant to the moral culpability of Mr Sidhom: see Murray Irrigation Ltd v ICW Pty Ltd [2006] NSWLEC 23 (21 January 2006) at [31] - [35]; and

“(d) any other matters that the court thinks proper to consider”: Mr Sidhom refers to two matters. First, the consequences of having a criminal conviction recorded against the appellant’s name and, second, Mr Sidhom only choosing to have the infringement notice dealt with by the court because of his concern about having an offence recorded against his name.

20 However, whilst these matters may all be relevant to the exercise of a court’s discretion under s 10(1) of the Crimes (Sentencing Procedure) Act 1999, collectively they are not such as to make any decision other than to make an order under s 10(1) dismissing the charge a substantially wrong decision and hence involve a question of law only. To the contrary, a decision not to exercise the discretion under s 10(1) in the facts of this case was one which was reasonably open on the facts to the Local Court.

21 For this reason also, there is no question of law involved. Accordingly, any appeal on the foreshadowed grounds does not involve a question of law alone and is doomed to failure. Leave to appeal should not be granted for such an appeal.

Re-exercise of discretion

22 If I were to be wrong in my construction of the Crimes (Appeal and Review) Act in relation to the subject matter of an appeal against sentence not involving the conviction itself and in relation to the Court’s powers on an appeal against sentence not allowing the setting aside of the conviction, or in relation to the foreshadowed grounds of appeal not involving a question of law, I will determine whether, considering the matter afresh on an appeal against sentence or conviction as the case may be, I would exercise the discretion under s 10(1)(a) of the Crimes (Sentencing Procedure) Act to dismiss the charge against Mr Sidhom without proceeding to conviction.

Circumstances of offence

23 The parties in the Local Court agreed to a statement of facts which was tendered in that Court and also in this Court. The statement of facts provides:

“1. On 22 January 2006 at about 10.00 am, offduty District Fisheries Officer Glenn Staples of the Department of Primary Industry observed the defendant and three other people walk into the Currambene Creek Mudflats Sanctuary Zone (“the Sanctuary Zone”) within the Jervis Bay Marine Park past a sign indicating the boundary of the Sanctuary Zone.
2. District Fisheries Officer Staples observed that some of the people with the defendant were carrying nipper pumps and buckets. District Fisheries Officer Staples then said to the defendant and the three other people:
‘Oi, you blokes are in a sanctuary zone, you are not allowed to pump in there’.
3. District Fisheries Officer Staples, then said to the defendant and the three other people:
‘Hey, you guys are in a sanctuary zone and you not allowed to pump there. If the marine parks guy comes along you’ll get a five hundred dollar fine.’
4. On 22 January 2006 at about 10.20am, a professional skipper known to the prosecutor observed the defendant and three other people pumping for nippers in the sanctuary zone. The professional skipper said the defendant and the three other people:
‘You are in a sanctuary zone, you can’t pump nippers here. It will cost you $500 per person.’

5. On 22 January 2006 at about 10.25am, Senior Marine Park Officer Mark Farrell (“the officer”) observed the defendant pumping for saltwater nippers within the Sanctuary Zone within the Jervis Bay Marine Park.
6. The defendant identified himself to the officer and admitted pumping for saltwater nippers in the area, being the Sanctuary Zone, for approximately 10 to 15 minutes.
7. The defendant did not hold any consent, licence, permit or authorisation to fish within the Sanctuary Zone.

8. A Penalty Infringement Notice was issued to the defendant for ‘Attempt to harm animal in a Sanctuary Zone’.

9. The defendant elected to have the matter determined by a court.”

24 Mr Mark Thackerill, a senior marine park officer at Jervis Bay Marine Park, was called to give evidence at the sentence hearing in the Local Court. A transcript of the evidence has been tendered in this court. Mr Thackerill had prepared an aerial photograph on which he had marked relevant features including the location at which the defendant’s car was parked in the car park, various signs, and the location of the defendant’s nipper pumping, as well as the extent of the Currambene Creek Mudflats Sanctuary Zone.

25 Mr Thackerill also referred to five photographs which were tendered in the Local Court. Three of these photographs showed the signs, the location of which had been marked on the aerial photograph, namely a blue wooden sign with the words “Jervis Bay Marine Park”, a metal sign containing information about regulations on catch of fish and animals, a zoning map sign showing the extent of the Jervis Bay Marine Park and the various zones into which it had been segregated and a sign along a track which designated the boundary between the habitat protection zone and the sanctuary zone.

26 The first two signs, that is the blue Jervis Bay Marine Park sign and the catch regulation sign, are in prominent view from the car park and must be passed in order to access the only track to Currambene Creek and Jervis Bay, along which track Mr Sidhom and his friends walked in order to access the location at which they pumped nippers. The third sign, the zoning plan sign, was located approximately 32 metres from the defendant’s vehicle but removed from the first two signs. The fourth sign, the sanctuary boundary sign, was located next to the access track which goes from the car park to the beach where Mr Sidhom and his friends pumped nippers. Mr Thackerill said that that access track “goes directly past that sign on the edge of the mangroves which is the border sign, the sanctuary zone and protection zone border sign.”

27 The photograph of the sanctuary boundary sign has a white background and is divided vertically in half. On the left hand side of the sign, there is a red colouring with a triangle in which the words “Sanctuary Zone” are written. Underneath that red colouring are the words “No fishing or collecting” with a red cross through the words “No fishing or collecting”. On the right hand side of the sign there is a yellow colouring with a triangle within which the words “Habitat Protection Zone” are written. Underneath the yellow colouring are the words “Rules Apply”. Underneath these two coloured parts of the sign, and at the bottom part of the sign, are the words “Please obtain the user guide before going fishing, boating or collecting in the park”. Then underneath that is a telephone with the telephone number of [phone], or visit At the very bottom of the sign are the words, in white against a blue background, of Jervis Bay Marine Park.

28 The yellow part of the sign with the triangle containing the words “Habitat Protection Zone” pointed in the direction of the car park. The red part of the sign with the triangle in which the words “Sanctuary Zone” pointed in the direction of the beach at which Mr Sidhom and his friends went to collect nippers.

29 Mr Sidhom was given the opportunity to cross-examine Mr Thackerill about his evidence. He chose not to do so. Accordingly, the evidence as to the location of the signs, their content and their visibility was not contested.

30 Mr Sidhom gave evidence in the Local Court in the form of letters tendered to the Local Court and made certain statements from the bar table. He did not give sworn oral testimony in the Local Court. Amongst the letters that were tendered was a letter dated 6 February 2006 to the Director of the Infringement Processing Bureau. In that letter Mr Sidhom said:

“For more than 18 years we have spent our summer holidays at Jervis Bay with our families, and every year I went to Huskisson to pump nippers as bait for fishing. I have never been aware of this particular spot being a sanctuary zone, and fishing or pumping nippers was no longer allowed there. According to the ranger, this area became a sanctuary zone only two or three years ago.

On the day, I recommended to my friends to drive over to Huskisson to pump some nippers for bait. When we got to the spot, we walked through the mangrove for about 5-10 minutes, and as we were approaching the spot I usually go to for pumping nippers, a boat went passed and one of the passengers started talking to us, telling us this was a marine park and we were not supposed to be there and we would get fined. As we never really knew if this person was being truthful or just trying to drive us away from the area, we did not take much notice of what he said and continued on walking.

When we finally reached our spot we commenced to pump nippers and that went on for about 10 minutes. At that point in time, a second boat approached us and one of its passengers informed us that we were not supposed to be pumping nippers and that we would be fined if a ranger came around. I then turned to my friends and said, ‘This must be serious, and we must be doing something wrong, so let’s just stop and leave’, which we did.

As I started walking back to my car empty handed, I saw the ranger at a distance waiting for us. When we reached him, he informed us that we had broken the law and that we would be fined. We gave the ranger our full co-operation, providing accurate and truthful information when asked.

Although we tried to explain to the ranger what had happened, and that we had been coming to the same spot every year, and would never attempt to break the law, also that when we realised that we may be doing something wrong, we stopped and started leaving, he chose to issue the fine anyway.

Although we take full responsibility for what happened, we would never purposely break any law. We were disappointed the ranger did not take into consideration our situation and chose not to believe us. Please also note there were no clear signs at the site where we entered, forbidding fishing or pumping nippers. If such a sign was erected, we would have immediately left, and looked for an alternate spot.”

31 In his statement from the bar table in the Local Court hearing, Mr Sidhom said:

“...really the reason that we elected to go to court is because of at no point in time did we really intend to break any laws, and at the moment we realised that we might be doing something wrong we packed up and we started leaving, and we were hoping that the court would take into consideration our good history, the character references that I presented and so on. That is really one of the main reasons why we’re here in addition to the criminal conviction impacting our employment.”

32 Mr Sidhom also sought and was granted leave to rely on the appeal on his affidavit sworn 7 June 2007.

Applicant’s submissions

33 Mr Sidhom submits that the objective circumstances of the offence and the subjective circumstances of the offender to which I have referred earlier (see paragraphs 17-19, 23, 30-31 above), justify the exercise of the discretion under s 10(1) to proceed without conviction to dismiss the charge.

Respondent’s submissions

34 The respondent submits to the contrary. The respondent submits that both the nature of the offence and the facts of the case weigh against the application of s 10.

35 The respondent firstly refers to the objective seriousness of the offence, having regard to both the nature of the offence (particularly the objects of the sanctuary zone as set out in s 3 of the Marine Parks Act 1997 and cl 6 of the Marine Park’s Regulation 1999) and the maximum penalty provided for it.

36 Section 3 of the Marine Parks Act 1997 has as one of its objects:

“to conserve marine biological diversity and marine habitats by declaring and providing for the management of a comprehensive system of marine parks” (s 3(a)).

37 Section 16(1) of that Act provides for the making of regulations for or with respect to classifying areas within a marine park for different uses, including sanctuary areas. Pursuant to that power the Marine Parks Regulation 1999 has been made. Clause 6 of that regulation sets out the objects of a sanctuary zone. These include:

“to provide the highest level of protection for biological diversity, habitat, ecological processes, natural features and cultural features (both Aboriginal and non-Aboriginal) in the zone. (s 6(a))”

38 There is also an object of providing opportunities for activities including recreational activities (s 6(b)(i)), however, there are two qualifications. First, those opportunities are to be provided only where they are consistent with the object in paragraph (a) of providing the highest level of protection for biological diversity etcetera, and secondly, recreational activities are only to be permitted if they:

“do not involve harming any animal or plant or causing any damage to or interference with natural or cultural features or any habitat.”

39 The maximum penalty for an offence against cl 7(1)(a) of the Marine Parks Regulation is $55,000.

40 Secondly, the respondent submits the prominent signage would have notified any reasonable person in the applicant’s position of the illegality of the act constituting the offence prior to the offence being committed, considering specifically that it is an agreed fact that the applicant was observed walking past a sign indicating the boundary of the sanctuary zone.

41 Thirdly, the respondent refers to the fact that applicant and his co-offenders were expressly warned before they engaged in the acts constituting the offence (pumping for nippers) that they were not permitted to engage in that conduct but they then chose to go ahead anyway and commit the offence.

The discretion under s 10

42 In deciding whether to make an order under s 10(1) of the Crimes (Sentencing Procedure) Act, the Court is required to have regard to the following factors in s 10(3):

“(a) the person’s character, antecedents, age, health and mental condition,

(b) the trivial nature of the offence,

(c) the extenuating circumstances in which the offence was committed,

(d) any other matters that the court thinks proper to consider.”

43 In Thorneloe v Filipowski (2001) 52 NSWLR 60, the Court of Criminal Appeal noted that s 10 is as applicable to environmental offences as it is to the general run of offences to which it applies. A court should not start from any presumption that it will be a rare case in which s 10 will be applied to an environmental offence. Rather, the Court ought to look primarily at the considerations which arise in the particular case:

“These will, of course, include the nature of the offence as defined in the statute creating it and the penalty provided together with the perceived object of the relevant statutory provision”: Thorneloe v Filipowski (2001) 52 NSWLR 60 at 78 [201].

44 Of course, consideration of such matters in each case may have the consequence that there ends up being few cases in which s 10(1) is supplied for environmental offences: see Thorneloe v Filipowski (2001) 52 NSWLR 60 at 74 [165]-[170] and 78 [201].

45 I turn now to consider each of the factors in s 10(3).

Character and antecedents of defendant

46 Mr Sidhom has no prior convictions for environmental matters. There also is some evidence of his good character. A character reference was provided by the parish priest of the church at which Mr Sidhom regularly worships. In that character reference the parish priest says that Mr Sidhom:

“has always been courteous, honourable, and honest. He is very successful and well respected in his work environment. He has always demonstrated a high degree of professionalism and honesty and has been exemplary in abiding by the law.”

Trivial nature of the offence

47 The offence with which Mr Sidhom has been charged is not trivial, either as a general proposition, in terms of the place of cl 7 of the Marine Parks Regulation in the overall scheme of that regulation and the Marine Parks Act, or in the particular circumstances of Mr Sidhom’s culpability in the commission of the admitted offence.

48 As the objects of both the Marine Park Act and the Marine Parks Regulation relating to sanctuary zones earlier set out made clear, the prohibition on not only harming animals or plants in a sanctuary zone but also attempting to harm animals or plants is an integral means of protecting biodiversity and ecological integrity. The offence provision, therefore, is an integral part of the legislative scheme.

49 The seriousness of the offence is manifest by the prescribed maximum penalty of $55,000. This applies equally to harming an animal or plant in a sanctuary zone, as it does to attempting to harm an animal or plant in a sanctuary zone. This emphasises that attempting to harm an animal or plant in a sanctuary zone is of equal gravity and importance in the statutory scheme as actually harming. This is relevant to the submission of Mr Sidhom in relation to the fact that no harm was actually caused.

50 Having regard to these considerations the offence charged against Mr Sidhom cannot be considered to be of a trivial nature. The objective and subjective circumstances of the offence in this case also establish that the commission of the offence by Mr Sidhom is not trivial.

51 The culpability of Mr Sidhom is heightened by the fact that Mr Sidhom and his friends were warned of the existence of the Jervis Bay Marine Park, and in particular that the area into which they walked was a sanctuary zone, and that the collection of nippers in that zone was prohibited and attracted a fine in the order of $500. That notification came in a number of forms.

52 Firstly, there were the signs to which I have earlier referred. Mr Thackerill’s evidence that I have earlier set out shows that as a matter of objective fact those signs were readily visible from the car park in which the defendant parked his car, and along the track along which the defendant and his friends walked.

53 Secondly, there were the two explicit verbal warnings. The first warning occurred shortly after the defendant passed the sign right next to the track identifying the commencement of the sanctuary zone. The warning was clear and unambiguous. It was not capable of being misunderstood.

54 Mr Sidhom’s evidence is simply that he did not know “whether the person giving the warning was being truthful or just trying to drive us away from the area”. However it is clear that Mr Sidhom and his friends took no steps to ascertain whether what the person was saying was truthful or not. One means would have been to go back to the car park and inspect the signs that, on any objective view, were visible. As I have noted above, at least on the sanctuary zone boundary sign next to the track there was a telephone number which could be rung to obtain information as to the rules in a sanctuary zone.

55 The defendant chose to ignore the warning. On one view this could be said to involve negligence, on another it could be said to be a reckless disregard as to whether what was being said was truthful or not truthful.

56 The defendant continued to the site where he and his friends pumped for nippers. It was only after the second verbal warning was given that the defendant chose to turn back. In these circumstances, the conduct up to the time of receiving the second warning can be said to involve a high degree of culpability.

57 After receiving the second warning the defendant did determine to cease the activity and return to the car park. However, it can be seen that this belated action was only in response to the third form of notification, the first form of notification being the signs, the second being the first verbal warning, and the third being the second verbal warning.

58 The fact that no actual harm was caused to the animals in the sanctuary, namely the nippers, has to be understood in the context of the fact that the offence involves attempting to harm animals, not actually harming animals, which is a separate means of committing the offence against cl 7(1)(a) of the Regulation. As I have said, the legislature has deliberately chosen to prohibit attempting to harm animals or plants in addition to actually harming animals or plants. It is not a mitigating circumstance, therefore, for an offence involving attempting to harm animals or plants that no actual harm occurred.

59 These circumstances, therefore, speak against any categorisation of the offence as being of a trivial nature.

Extenuating circumstance

60 The only extenuating circumstance to which Mr Sidhom refers is that, after the third form of notification, namely the second verbal warning, he ceased pumping for nippers and immediately left the area. However, in the circumstances where there had been two earlier forms of notification, this does not form an extenuating circumstance of any materiality.

Other matters

61 I take into account the early plea of guilty, Mr Sidhom’s expressions of contrition and remorse, the fact that he has no prior convictions and that he is of prior good character. These all indicate that the offender is unlikely to re-offend. I also take into account the other matters referred to by Mr Sidhom relating to s 21A(3) and s 10(3), to which I have earlier referred.

Conclusion on s 10(1)

62 On balance, the factors discussed above in relation to the non trivial nature of the offence, and the lack of extenuating circumstances outweigh the defendant’s character, lack of antecedent criminal history and other mitigating circumstances. Accordingly, I am not satisfied that it is appropriate to either unconditionally or conditionally discharge the defendant without proceeding to conviction pursuant to s 10(1) of the Crimes (Sentencing Procedure) Act. Accordingly, even if I were to re-exercise the discretion in relation to s 10(1), I would not dismiss the charge against Mr Sidhom under s 10(1).

63 For these reasons, I would also not grant leave to appeal, or if leave was granted, I would not uphold the appeal against sentence. I note that Mr Sidhom does not put any case that the other aspects of the sentence imposed by the Local Court, namely the fine of $500 or the orders for the payment of the prosecutor’s costs and court costs, should be interfered with. Equally, the respondent has not submitted that the court should increase the fine.

Orders

64 Accordingly the appropriate orders are:

1. The application for leave to appeal against the conviction is dismissed.

2. The applicant is to pay the respondent’s costs of the proceedings in an amount I fix at $5,000, such costs to be paid to the Registrar of the Local Court at Nowra within three months of today.

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