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

1. DAVID J.               This is a prosecution appeal against a sentence imposed in the Magistrates Court.

2. 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.

3. 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.

4. 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 activity of a prescribed class”.[1] Prescribed classes are then defined in the regulations as those found in Schedule 1.[2] Clause 30(a) of Schedule 1 states that taking fish using a net in any of the waters of the State specified in Schedule 2 Part 1 is an activity of the prescribed class. The appropriate part of Schedule 2 Part 1 reads as follows:

   …

   The waters of Gulf St Vincent in the vicinity of Port Price bounded as follows:

   All those waters below high water mark within a radius of 1.1 nautical miles from the Will Creek Light Beacon north or Mangrove Point and all the waters of Will Creek together with the waters of its anabranches and tributaries.

   It was submitted before the magistrate that the respondent misread “1.1 nautical miles” as “1.1 kilometres”. Consequently the respondent was 463 metres within the prohibited area.

   [1]    Fisheries Act 1982 (SA) s 41.

   [2]    Fisheries (General) Regulations 2000 (SA) reg 5.

5. In his short ex tempore reasons the magistrate said the following:

   I take everything that I have heard into account, both by the prosecutor and your defence counsel. It seems to me that you clearly ought to have been aware of the requirements of the Act and I have some difficulty in understanding how you might have had it wrong (kilometres as opposed to nautical miles). I accept however that it is not something that you have apparently transgressed with previously. I accept what the prosecutor submits about your level of culpability – it is something you ought to have known. I note also the prosecutor’s submissions about the resources and specific deterrents [sic] and I note this Act is regularity [sic] in nature. I have read the charge regulations and I accept those.

   You are a 53 year-old man. You have been fishing for a long period of time and you have held a commercial licence since you were 21. There is no suggestion of previous offending or breaching of this Act. I accept that you are a man of otherwise good character and this incident was out of character. In your capacity as a commercial fisherman I think I can be satisfied that you are unlikely to commit such an offence again. I think it is an experience you will not want to repeat and I do not expect you to do that.

   I note you were cooperative with the authorities. I note your plea of guilty entered at an early stage. In all the circumstances I am prepared to exercise my discretion under s 16 of the Criminal Law (Sentencing) Act and without recording a conviction I impose a fine of $800 plus court fees. There will also be a prosecution fee which I allow in the sum of $100. (emphasis in original)

6. The appellant now argues that the magistrate has erred in not properly applying s 16 of the Criminal Law (Sentencing) Act. That section reads as follows:

   16—Imposition of penalty without conviction

   Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion—

   (a)     that the defendant is unlikely to commit such an offence again; and

   (b)     that, having regard to—

   (i)the character, antecedents, age or physical or mental condition of the defendant; or

   (ii)the fact that the offence was trifling; or

   (iii)any other extenuating circumstances,

   good reason exists for not recording a conviction,

   the court may impose the penalty without recording a conviction.

   In short, the appellant argues that the magistrate has only mentioned matters which are conditions precedent to an exercise of the discretion under s 16. The appellant argues that the magistrate has not gone further and set out what “good reason” there is for not convicting. The appellant further argues that this being a regulatory offence, in most cases a conviction ought to be recorded, with the discretion provided only being exercised as an exception to the rule. The appellant cited a number of authorities for that proposition.[3]

   [3]    Hemming v Neave (1989) 51 SASR 427, 428; Piva v Brinkworth (1992) 59 SASR 92, 95-96; Hemming v Mundy (2001) 213 LSJS 453, 460; Rusby v Kerley [2002] SASC 141, [77]-[80].

7. The magistrate clearly set out the pre‑conditions for use of s 16 when he referred to the respondent’s good character and the fact that he was satisfied the respondent would be unlikely to commit such an offence again. It would have been much better if he had then gone on and considered specifically the question of whether good reason existed for not convicting. However, although the magistrate did not specifically refer to it, it is implicit that good reason did exist. Over and above the respondent’s good character were the factors that he had been a commercial fisherman for some 21 years and had not previously offended, and also that the offence was not deliberate but was a genuine mistake. In the circumstances of this case, a combination of the factors over and above the threshold matters set out in the section would make out “good reason” for not convicting.

8. In all the circumstances, I see no reason to disturb the magistrate’s discretion and I would dismiss the appeal.