TATARELLI v CICOLELLA - [2007] SASC 265

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TATARELLI v CICOLELLA
[2007] SASC 265
Judgment of The Honourable Justice David
23 July 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - OTHER OFFENCES
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - DISCRETION TO NOT RECORD CONVICTION
Criminal law – Magistrates Appeal – prosecution appeal against sentence – manifestly inadequate – fisheries offence – taking fish in prohibited area – no conviction recorded pursuant to the Criminal Law (Sentencing) Act 1988 (SA) s 16 – whether good reason existed to not record a conviction – commercial fisherman – no prior fisheries offences – good character – mistake – appeal dismissed.
Criminal Law (Sentencing) Act 1988 (SA) s 41; Fisheries Act 1982 (SA) s 41; Fisheries (General) Regulations 2000 (SA) reg 5, Sch 2 Pt 1, referred to.
Hemming v Mundy (2001) 213 LSJS 453; Hemming v Neave (1989) 51 SASR 427; Piva v Brinkworth (1992) 59 SASR 92; Rusby v Kerley [2002] SASC 141, discussed.

TATARELLI v CICOLELLA
[2007] SASC 265
Magistrates Appeal

DAVID J. This is a prosecution appeal against a sentence imposed in the Magistrates Court.
The respondent was charged on Complaint with one count of engaging in a fishing activity, namely the taking of fish by net, in an area in which the use of any fish net is prohibited, contrary to s 41 of the Fisheries Act 1982 (SA) and reg 5 of the Fisheries (General) Regulations 2000 (SA). On 17 April 2007 the respondent entered a plea of guilty to that charge and pursuant to s 16 of the Criminal Law (Sentencing) Act 1988 (SA) the magistrate ordered that the respondent be sentenced on a “without conviction” basis, and imposed a fine in the amount of $800, plus court costs and levies. This appeal is against the magistrate’s order to not record a conviction.
It was undisputed that at the time of sentencing the respondent was a 53 year old man, who had held a commercial fishing licence since he was 21. He had no previous convictions for breaches of the Fisheries Act. He was sentenced on the basis that he was a man of good character and the incident which was the basis of the charge was out of character. He was also sentenced on the basis that he was unlikely to commit such an offence again.
The factual basis of the offence was that the respondent was fishing with the use of a net within an area where such fishing is prohibited by the Fisheries (General) Regulations. It was agreed that the offence was not deliberate, but involved a misreading by the respondent of the appropriate regulations. The Fisheries Act states that “[a] person must not engage in a fishing…

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

AGLC: TATARELLI v CICOLELLA [2007] SASC 265
Case: [2007] SASC 265
Decision Date: 23 July 2007

CaseChat Overview and Summary

In the matter of Tatarelli v Ciccolella, the Court of Appeal considered an appeal against sentence by the Attorney-General of South Australia, following the conviction of the defendant for taking fish in a prohibited area under the Fisheries Management Act 1994 (SA). The defendant, a commercial fisherman with no prior convictions, was caught taking fish in a prohibited area. The matter was heard in the Magistrates Court of South Australia, and subsequently appealed to the Court of Appeal.

The central legal issue before the Court was whether the sentence imposed by the Magistrates Court was manifestly inadequate, warranting an increase in penalty. The Attorney-General argued that the original sentence did not adequately reflect the seriousness of the offence, given the defendant's involvement in commercial fishing and the need to protect fisheries resources. The Court was also required to determine whether there was good reason under the Criminal Law (Sentencing) Act 1988 (SA) section 16 to not record a conviction, given the defendant's clean criminal record and the alleged mistake in taking the fish.

The Court of Appeal held that the sentence was not manifestly inadequate, taking into account the defendant's good character, lack of prior fisheries offences, and the circumstances surrounding the incident. The Court found that the Magistrates Court had appropriately exercised its discretion to not record a conviction, given the mitigating factors present in the case. The Court emphasised the importance of considering the overall circumstances of the offence, including the defendant's clean criminal record, and the fact that the incident appeared to be an honest mistake. Accordingly, the appeal against sentence was dismissed.

The Court did not make any further orders in relation to the matter.

Orders