Strachan, David Campbell v Graves, Caroline May - [1998] TASSC 68

68/1998

PARTIES:  STRACHAN, David Campbell
  v
  GRAVES, Caroline May

KELLY, Robert John
v
GRAVES, Caroline May

TITLE OF COURT:                  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 102/1997

FCA 15/1998

DELIVERED:  5 June 1998
HEARING DATE/S:                  25 May 1998
JUDGMENT OF:  Cox CJ, Wright J, Slicer J

CATCHWORDS:

Magistrates - Procedure - Summons - Proof and sufficiency of service - Service of summons out of the State in which it was issued - Must be served in the manner prescribed by law of the State of issue - Tasmania - No requirement to serve complaint with summons.

Service and Execution of Process Act 1992 (Cth), s27.
Justices Rules 1976 (Tas), rr14 - 19.
Aust Dig Magistrates [74]

Magistrates - Jurisdiction and procedure generally - Procedure - The hearing - General matters - Relevant principles, jurisdiction and powers - Jurisdiction to enter on hearing - When defendant bodily present.

Mortimore v Stecher [1971] VR 866; R v Hughes (1879) 4 QBD 614; Parisienne Basket Shoes Proprietary Limited & Others v Whyte (1937 - 1938) 59 CLR 369, followed.
Aust Dig Magistrates [77]

Statutes - Acts of Parliament - Operation and effect of statutes - Retrospective operation - Declaratory and validating acts.

Green v Davies 91/1997, followed.
Fisheries Amendment Act 1995 (Tas), s5.
Sea Fisheries Regulations 1962 (Tas), reg44(1)(oc).
Aust Dig Statutes [75]

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Purpose of sentence - Deterrence - Fisheries offences - Sentence not manifestly excessive.
Aust Dig Criminal Law [827]

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Totality - Totality principle applied correctly.

Aust Dig Criminal Law [838]

REPRESENTATION:

Counsel:
             Appellants:  G D Wendler
             Respondent:  F C Neasey
Solicitors:
             Appellants:  Butler McIntyre & Butler
             Respondent:  Director of Public Prosecutions

Judgment category classification:
Court Computer Code:
Judgment ID Number:  68/1998
Number of pages:  12

Serial No 68/1998
File No FCA 102/1997
FCA 15/1998

DAVID CAMPBELL STRACHAN v CAROLINE MAY GRAVES
ROBERT JOHN KELLY v CAROLINE MAY GRAVES

REASONS FOR JUDGMENT FULL COURT

COX CJ
WRIGHT J
SLICER J

5 June 1998

Orders of the Court

Appeals dismissed.

Serial No 68/1998
File No FCA 102/1997
FCA 15/1998

DAVID CAMPBELL STRACHAN v CAROLINE MAY GRAVES
ROBERT JOHN KELLY v CAROLINE MAY GRAVES

REASONS FOR JUDGMENT FULL COURT

COX CJ

5 June 1998

The appellants, and one Gibb, were charged on one complaint which alleged that on 15 January 1995 at Hunter Island in Tasmania, each of them committed the following offences:

1	Obstruct an officer	Contrary to the Fisheries Act 1959, s24(1)(d)
2	Take undersize abalone	Contrary to the Sea Fisheries Regulations 1962, reg31A(2)
3	Possess undersize abalone	Contrary to the Sea Fisheries Regulations 1962, reg31A(3)
4	Possess underweight abalone	Contrary to the Sea Fisheries Regulations 1962, reg44(1)(z)
5	Have in possession more than 20 abalone	Contrary to the Sea Fisheries Regulations 1962, reg44(1)(oc)

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.

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Details

Case: [1998] TASSC 68
Decision Date: 5 June 1998

CaseChat Overview and Summary

The Full Court of the Supreme Court of Tasmania heard an appeal against conviction and sentence in a case involving charges of fisheries offences. The appellants, David Campbell Strachan and Robert John Kelly, were convicted of various offences related to the unlawful taking and possession of abalone and crayfish, contrary to Tasmanian fisheries laws. They challenged their convictions and sentences, arguing that the regulations under which they were charged were invalid, that they were not properly served with the summons, and that their sentences were excessive. The respondents, Caroline May Graves and the Director of Public Prosecutions, defended the convictions and sentences.

The court first addressed the validity of the Sea Fisheries Regulations 1962, which set limits on the possession of abalone. The appellants argued that these regulations were ultra vires the Fisheries Act 1959, but the court found that the Fisheries Amendment Act 1995, s5, validated the regulations from their inception, removing any doubt about their validity. The court held that the Fisheries Amendment Act 1995 was intended to confirm the validity of all relevant regulations, and there was no ambiguity permitting the appellants' interpretation.

Next, the court examined the service of the summons on the appellants, which was executed in Victoria. The appellants argued that the summons was invalid because it was not accompanied by a copy of the complaint, as required under the Justices Rules 1976. The court held that the Justices Rules did not mandate the service of a complaint with the summons, and the summons itself contained all necessary particulars of the charges. Therefore, the summons was served in accordance with the Service and Execution of Process Act 1992, and any defect in service was cured by the appellants' entry of pleas through their counsel, without objection to the court's jurisdiction.

Finally, the court considered the appellants' challenge to their sentences. Strachan argued that the magistrate failed to apply the totality principle and that his sentence was manifestly excessive. The court found that the magistrate had adequately considered the totality principle and that the penalties imposed, though including some mandatory special penalties, were well within the statutory limits and appropriately reflected the seriousness of the offences, particularly given Strachan's history of similar convictions.

In conclusion, the Full Court dismissed both the appeal against conviction and the appeal against sentence, affirming the lower court's decisions. The Full Court held that the regulations were valid, the summons was properly served, and the sentences were appropriate given the circumstances of the case and the appellants' criminal history.

Orders