Vitlov v Lewis

[2004] SASC 83

VITLOV & ANOR v LEWIS
[2004] SASC 83

Magistrates Appeal

1. VANSTONE J:     Each of the appellants pleaded guilty to two offences against the Fisheries Act 1982.  They appeal against the penalties imposed on various grounds, including that the penalties were manifestly excessive.

2. The offences were charged jointly.  The first appellant, Ljiljana Vitlov, was charged in her capacity as the holder of a prawn fishery licence.  Her son, Sylvio Vitlov, the second appellant, was registered by endorsement of the licence as the Master of the boat “Michelle”, which boat was also registered by endorsement of the licence of the first appellant.  Both offences occurred at the same time and place. 

3. The first count alleged that the appellants engaged in a fishing activity of a prescribed class, namely an activity described in paragraph 58(c) of Schedule 1 of the Fisheries (General) Regulations 2000 (“Regulations”). That was an offence against s 41 of the Act as expanded by reg 5. Section 41 of the Fisheries Act provides a Division 7 fine, which is a maximum of $2,000, for a first offence of this type. In terms of the particular fishing activity under consideration, trawl nets having a headline length exceeding 29.26 metres are prohibited: reg 5 and Schedule 1, paragraph 58. The second appellant bore direct responsibility for the offence as the person who engaged in the fishing activity. The first appellant bore responsibility under s 69(3) of the Fisheries Act, being the “registered owner” of the boat used in connection with the commission of the offence, and, by virtue of the same section, became liable to the penalty as prescribed for the principal offence. (Under s 5 of the Fisheries Act “registered owner” in these circumstances encompasses the holder of the fishery licence.)  At the relevant time the second appellant was using two trawl nets, the combined headline length of which exceeded 29.26 metres.  The fish taken were mainly western king prawns and also some calamari and Balmain bugs.  The wholesale value of those fish was $89,950.

4. The second offence was one against s 37(4) of the Fisheries Act. It was alleged that the appellants contravened a condition of the licence in that on board the boat were seven prawn trawl nets, each of which exceeded the maximum allowable headline length of 14.63 metres. It would appear that the number mentioned included the two nets the use of which constituted the first offence. Again, secondary responsibility accrued to the first appellant by operation of s 69 Fisheries Act. Section 37(4) provides for a Division 6 fine which is a maximum fine of $4,000.

5. The penalties imposed were as follows. Both appellants were convicted of both offences. The first appellant was fined $1,000 on the first count and $2,000 on the second count. The second appellant was fined $750 on the first count and $1,500 on the second count. The Magistrate held that the provisions of s 66 of the Fisheries Act were triggered by the convictions on count 1 and imposed an additional penalty on each appellant of $30,000. It was further ordered, pursuant to s 28(9)(b)(i) of the Fisheries Act, that the seven prawn trawling nets be forfeited to the Crown.  The learned Magistrate declined to order forfeiture of the catch and did not order any suspension of the first defendant’s licence.

6. In support of her argument that the penalties imposed were manifestly excessive, Ms Powell QC pointed to a number of factors of mitigation which were accepted by the learned Magistrate.  In his remarks on penalty the Magistrate acknowledged that the offending was “at the lower end of the scale”.  The prosecution conceded that it could not prove that the excess in the net length actually increased the catch and that therefore there was no proved impact on the conservation and management of fisheries.  Further, his Honour accepted that there was no mala fides and that the breach was “an innocent one”.  He observed that both defendants had been operating as “fishers” since the early 1970s, had no prior convictions and were of good character.  He described the offences as negligent. 

7. Counsel then pointed to a number of specific matters. She submitted that when it came to considering whether or not a conviction should be recorded the Magistrate misdirected himself as to the appropriate touchstone. Section 16 of the Criminal Law (Sentencing) Act 1988 (“Sentencing Act”) provides as follows:

   16.  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.

8. The learned Magistrate accepted that the pre-conditions for the application of s 16 were fulfilled, namely that the defendants were unlikely to commit such an offence again and their characters were unblemished.  It was in the following observation that Ms Powell suggested the Magistrate erred.  He said:

   As a matter of policy in offences of this nature where there are in particular major issues of general deterrence as well as personal deterrence, failure to impose convictions will and should in my view only occur in exceptional circumstances;  that is, where the circumstances are so extenuating so as to justify taking that course.

   If it could be said that in making that remark his Honour substituted for the expression “good reason” in the Sentencing Act a test of exceptional circumstances, then I agree that error would be demonstrated.  However, I do not read the learned Magistrate as doing more than placing the proffered reasons in the context of the offences with which he was being asked to deal.  What might amount to good reason in the context of, say, a traffic offence, might fall far short of that where an offence of violence was concerned. 

9. Offences of the kind under consideration are referred to as regulatory offences. A number of decisions of this Court have made it clear that such provisions as s 16 of the Sentencing Act can have only limited application to regulatory offences:  Liddy v Cobiac [1969] SASR 6, 10; Hemming v Neave & Neave (1989) 51 SASR 427, 428; Hemming v Perkins;  Hemming v Stemburger (1999) 74 SASR 307, 320. In dealing with regulatory offences the deterrent aspect of punishment is to be emphasised. These matters were relevant to the Magistrate’s consideration of whether good reason existed for not recording a conviction. In my view, notwithstanding the weight of the matters of mitigation, I consider that his decision that convictions should be recorded was correct.

10. Ms Powell also submitted that the Magistrate should have utilised the power given him in s 17 of the Sentencing Act to reduce the minimum penalties to which the appellants became liable pursuant to s 66 of the Fisheries Act.  In Hemming v Perkins;  Hemming v Stemburger (supra) Martin J expressed the view that s 17 of the Sentencing Act was available in respect of penalties imposed under s 66 of the Fisheries Act. The discretion afforded to the Court by s 17 arises where the Court finds “good reason” for reducing the penalty below the minimum, by reference to the same preconditions as set out in s 16, which I previously discussed.

11. The learned Magistrate was not specifically asked to consider the application of s 17 of the Sentencing Act and nor did he mention it in his remarks on penalty.  However, I do not think there is any reason to conclude that he was other than alive to the full range of the ameliorating provisions available to him.

12. It is true that the total penalty imposed on each appellant was substantial, and that was principally so by reason of the operation of s 66 of the Fisheries Act.  That is underlined in this case where the offences were found to be negligent rather than deliberate.  However, as Martin J observed in Hemming v Perkins;  Hemming v Stemburger, that consequence is the result of the deliberate policy of Parliament. Parliament may be taken to have intended that the operation of s 66 would operate as a deterrent in relation to negligent as well as deliberate breaches of the Fisheries Act. That is not to say that s 17 of the Sentencing Act would never be appropriately utilised to reduce such a penalty.

13. The factors to which Ms Powell pointed to justify resort to s 16, or failing that, s 17 of the Sentencing Act, were those to which I have already made reference.  In a sense they could be categorised as amounting to not much more than was required to meet the preconditions to the enlivening of the discretion.  I do not consider that there is any reason to think that the exercise of the Magistrate’s decision miscarried.

14. The complaint was made that the learned Magistrate should have utilised s 18A of the Sentencing Act to impose one penalty for both counts. As Ms Powell conceded during argument, the gravamen of the complaint goes not so much to how the penalty was structured, but rather to the totality of it. Section 18A of the Sentencing Act provides a convenient mechanism by which penalties for more than one offence can be collected together.  However, there is no obligation on a court to utilise it in any particular case.

15. Counsel argued that the fines imposed were pitched at too high a proportion of the maxima available, having regard to the offences being at the lower end of the scale. Ms Powell noted that the first appellant, though not directly involved, fared worse than her son. Section 41 of the Fisheries Act operates through reg 5 to prohibit all the many activities described in Schedule 1 of the Regulations. Those include activities engaged in by amateur as well as professional fishermen. The maximum penalty provided is for first offenders only. In light of these matters and the emphasis the Act places upon the responsibilities of licence holders I think the Magistrate was justified in setting the fines imposed on both appellants at the level, and in the manner that he did.

16. Ms Powell further asserted that the Magistrate erred in relation to the penalty imposed on the second appellant by reason of the provisions of s 13 of the Criminal Law (Sentencing) Act. Again the Magistrate was not specifically referred to that section during submissions. Section 13 provides that the Court must not order that a defendant pay a pecuniary sum if it is satisfied that he would be unable to comply with the order or that compliance with it would unduly prejudice the defendant’s dependants. Certainly it was put to the Court that the second appellant was a married man and that he and his wife were soon to have a second child. Further it was put that he worked as Master of the boat on a commission basis only and had a substantial home mortgage. In my view these circumstances were not such as to amount to a demonstrated inability to comply with the order made, particularly having regard to the availability of payment options under Division 3 of Part 9 of the Sentencing Act.

17. Notwithstanding Ms Powell’s careful arguments in relation to each ground, I have formed the view that the penalty in respect of both offences and each appellant was within the appropriate range.  The appeal will be dismissed.