Vitlov v Lewis - [2004] SASC 83

VITLOV & ANOR v LEWIS
[2004] SASC 83
Magistrates Appeal

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.
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.
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.
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.
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…

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: Vitlov v Lewis [2004] SASC 83
Case: [2004] SASC 83
Decision Date: 25 March 2004

CaseChat Overview and Summary

In the matter of Vitlov and Another v Lewis, the applicants appealed against the penalties imposed on them for offences under the Fisheries Act 1982. The applicants, Ljiljana Vitlov and her son Sylvio Vitlov, were convicted of two offences related to fishing activities that violated regulations regarding the length of trawl nets. The first offence involved the use of trawl nets exceeding the permitted headline length during a fishing activity, and the second offence involved the presence of multiple trawl nets on the boat, each exceeding the maximum allowable headline length. The appeals were based on the grounds that the penalties imposed were manifestly excessive.

The primary legal issues that the court had to address were whether the Magistrate erred in deciding to record convictions despite the mitigating circumstances, whether the Magistrate should have exercised his discretion under the Sentencing Act to reduce the penalties, and whether the penalties imposed were excessively high given the nature of the offences. The applicants argued that the Magistrate misapplied the criteria for recording convictions and failed to adequately consider the mitigating factors, including the lack of prior convictions and the negligible impact on the conservation and management of fisheries. They also argued that the Magistrate did not properly exercise his discretion to reduce the penalties under the Sentencing Act.

The court found that the Magistrate was not in error in deciding to record convictions, as regulatory offences such as these require a strong emphasis on deterrence. The court noted that the Magistrate was aware of the mitigating factors and considered them in the context of the offences. While the penalties were substantial, the court concluded that the Magistrate was justified in imposing them, given the policy of the Fisheries Act to deter negligent as well as deliberate breaches. The court also found that there was no demonstrated inability on the part of the second appellant to comply with the penalty order, and that the Magistrate was not obliged to use the mechanism in the Sentencing Act to combine penalties for multiple offences.

The court dismissed the appeals, holding that the penalties imposed were within the appropriate range and that the Magistrate had correctly exercised his discretion in considering the mitigating factors. The penalties for both offences and each appellant were upheld as justified by the nature of the violations and the need for deterrence.

Orders