Smith v Department of Environment and Heritage - [2004] SASC 199

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
SMITH v DEPARTMENT OF ENVIRONMENT AND HERITAGE
Judgment of The Honourable Justice Gray (ex tempore)
8 July 2004
ANIMALS - VARIOUS STATUTORY PROVISIONS - PROTECTION OF ANIMALS, BIRDS AND WILDLIFE AND GAME LAWS - OFFENCES - SOUTH AUSTRALIA
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY
Appellant charged with offences under the National Parks and Wildlife Act and associated regulations - entered pleas to 10 counts - convictions recorded - appeal relates to two counts - regulatory offences - appellant claims he entered pleas following discussions with the prosecutor and agreement that no conviction would be recorded - magistrate made it clear that prosecutor's stance on conviction was influential only - appellant further said that he had a statutory defence to one charge - misconceived - statutory defence related to another section - no substance to the appeal - appeal dismissed.
National Parks and Wildlife Act 1972 (SA) s 72; Criminal Law (Sentencing) Act 1988 (SA) s 16; National Parks and Wildlife (Wildlife) Regulations 2001, referred to.
Piva v Brinkworth (1992) 59 SASR 92; R v Nemer (2003) 87 SASR 168, considered.

SMITH v DEPARTMENT OF ENVIRONMENT AND HERITAGE
[2004] SASC 199
Magistrates Appeal

GRAY J This is an appeal against penalty. The appellant, Douglas Andrew Smith, was charged with offences against the National Parks and Wildlife Act 1972 (SA) and also with offences against regulations made pursuant to that Act. In all there were twenty four counts. Pleas of guilty were entered to 10 counts. The other 14 counts were withdrawn. This appeal relates to only two of the counts to which the appellant pleaded guilty. There is no complaint about the orders made in respect of the other counts.
The first matter the subject of appeal was the penalty imposed for an offence of making a false statement in a record contrary to section 72(1) of the National Parks and Wildlife Act.
The National Parks and Wildlife Act was introduced in 1972 to consolidate a number of Acts relating to the conservation and management of flora and fauna in South Australia. In 2000, further amendments to the National Parks and Wildlife Act were made. The second reading speech emphasised the dual purpose of the legislative scheme and the conflict between the use of reserves for public benefit and enjoyment and the need to conserve native flora and fauna.
The government’s role was described as seeking to maximise public benefit while minimising the impact of human activity on South Australia’s natural assets. Section 72 of the Act recognised a need to have those people dealing with animals and reptiles to keep proper, accurate and adequate records of relevant events relating to those animals. Although the language of the section was altered slightly in the 2000 amendments, the intention of the section remains the same. Section 72 relevantly provides:
A person must not make, or cause to be made, a false or misleading statement in relation to the administration of this Act.
Maximum penalty: $2 500.
It was alleged that the appellant made a false record in his Protected Animals Records Book. The animals the subject of the record were protected animals. The false entry suggested that an inspecting warden had sighted three animals when that was not the case.
The magistrate recorded a conviction, fined the appellant $200 and imposed a compulsory levy of $35. He directed the appellant to pay the costs of the prosecution fixed at $300. The magistrate imposed the one order for costs in respect of all matters on which pleas of guilty were recorded.
The offence charged was regulatory in nature. It is well settled that a conviction will be recorded for an offence of this character in the absence of exceptional circumstances. As Duggan J observed in Piva v Brinkworth[1] in considering the exercise of discretion pursuant to section 16 of the Criminal Law (Sentencing) Act 1988 (SA):
Of course there will be cases where the circumstances will invite the application of the power to proceed without conviction or to refrain from imposing a penalty in dealing with regulatory or social legislation…
…the present case did not call for the exercise of leniency of the type under discussion. While it is true to say that the case possessed features such as the good character of the appellant which, in the case of certain offences, might lead to the application of s 16 or s 39, nevertheless it must be remembered that these matters are no more than conditions precedent to the exercise of the discretion given under the sections. They do not give an offender a right to such leniency (Cobiac v Liddy (1969) 119 CLR 257 at 276) and in considering the exercise of the discretion the court should have regard to the restricted application which they have in cases of regulatory and social legislation.
[1] (1992) 59 SASR 92
The appellant submitted on appeal that he had only changed his plea from not guilty to guilty with respect to the complaint as a result of a plea bargain struck with the prosecutor. It was said that the terms of the bargain were that there would be no conviction recorded. It was further claimed that the prosecutor would acknowledge that the charge reflected only a minor offence and that the animals the subject of the charge would be returned.
Against this background, the appellant sought an order on appeal that the conviction and penalty be set aside, and the animals returned.
The prosecutor confirmed in an affidavit filed in the appeal proceedings that there had been discussion with the appellant that had led to the plea of guilty. The prosecutor indicated that she would inform the court that the Department did not seek a conviction and treated the offending as being of a minor nature.
The prosecutor also informed the court of the defendant’s prior convictions.
During the course of the hearing the magistrate specifically drew the appellant’s attention to the fact that the question of the recording of a conviction was a matter for the court and was not a decision that the prosecutor could make. The magistrate pointed out that an agreement between the appellant and the prosecutor did not, and could not, bind the court. The magistrate informed the appellant that the prosecutor’s attitude was a relevant consideration to be brought to account by the court. However, the magistrate emphasized that, notwithstanding the plea bargain, and the submission of the prosecutor, the court itself would consider the appropriate penalty in the matter.
The approach identified and taken by the magistrate was correct. In R v Nemer[2] the Doyle CJ summarised the position and explained that in sentencing the offender the court must act according to law:
In sentencing an offender the court must act according to law. The court must reach its own conclusion on the factual basis on which sentence is to be passed, and must exercise its own judgment and discretion in arriving at the appropriate sentence. As has been said, the court exercises its power and makes its decision acting in the public interest: Malvaso v The Queen (1989) 168 CLR 227 at 233 (“Malvaso”). The Director of Public Prosecutions has a duty to assist the court in the sentencing process. In the discharge of that duty the Director puts submissions to the court, but those submissions are merely matters to be considered by the court, to be given such weight as they deserve. The court is not bound in any way by the submissions of the Director, nor is the Director’s attitude to a given case a matter that should influence the court: R v Malvaso & Ors (1989) 50 SASR 503 at 509 – 510 King CJ. The court must make its own decision, acting according to law and in the public interest. In particular, the court is not bound by any agreement or arrangement reached between counsel for the offender and the Director in the course of the sentencing process. As Mason CJ, Brennan and Gaudron JJ said in Malvaso at 233:
“The Court’s sentencing discretion is to be exercised in the public interest; it cannot be fettered by a plea-bargaining agreement.”
[2] (2003) 87 SASR 168
No error of law has been identified on the part of the magistrate. It has not been shown that he failed to have regard to any material fact, or that he took into account any irrelevant consideration. The orders made were well within his discretion. There is no substance to the appellant’s complaints with respect to this offence.
The other matter of complaint related to the penalty imposed for an offence that the appellant failed to keep a record of information required by the National Parks and Wildlife (Wildlife) Regulations 2001 in his record book with respect to particular animals. An incorrect recording was made concerning yellow vented blue bonnets. It was particularised that these animals were protected animals. The substance of the complaint was that the appellant failed to record that one of the particular species had died.
On appeal it was complained that the count should be dismissed because the appellant had a statutory defence to the charge. This ground of appeal is misconceived. The defence only applied to an offence against a particular section of the Act, not to an offence against the regulations. In any event, the defendant’s plea acknowledged each of the elements of the regulatory offence. There is no substance to this ground of appeal.
The appellant sought an order from this Court for the return of the animals that he claimed to have been seized. No order was sought for the return of those animals from the magistrate.
Counsel for the Department has acknowledged that if the position is that the animals had been seized, are alive, that the department will return the animals. The appellant proposes to seek the return of any such animals from the relevant department. For these reasons the appeal is dismissed.