Wanganeen v Dietman; Shaw v Dietman (No 2) - [2021] SASCFC 31

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
WANGANEEN v DIETMAN; SHAW v DIETMAN (No 2)
[2021] SASCFC 31
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, the Honourable Justice Kelly, the Honourable Justice Blue, the Honourable Justice Stanley and the Honourable Justice Doyle)
30 July 2021

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - COSTS
PRIMARY INDUSTRY - FISH - OFFENCES - PENALTY
PRIMARY INDUSTRY - FISH - OFFENCES - TAKING OR POSSESSING UNDER PRESCRIBED WEIGHT OR SIZE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - RECOGNISANCES - CONDITIONS
The Court previously allowed the appeal by Wanganeen and Humes, set aside their convictions, entered an acquittal on count 3 and remitted counts 1, 2 and 4 to the Magistrates Court for a fresh trial. The appeal by Shaw against his convictions on counts 1 and 2 was allowed and acquittals substituted and his appeal against his conviction on count 3 was dismissed: Wanganeen v Dietman; Shaw v Dietman [2021] SASCFC 25.
The Court subsequently heard submissions on resentencing Shaw and in relation to costs.
Held (by the Court):
1The Magistrate’s order that Shaw be discharged on entering into the good behaviour bond, prohibition order and forfeiture order remain appropriate and should be affirmed (at [19], [30] and [31]).
2The additional penalty and the costs orders made by the Magistrate in relation to Shaw should be set aside (at [28]).
3Orders by consent that the respondent pay Shaw’s costs of the prosecution in the Magistrates Court and Shaw’s costs of the appeal (at [32]).
4There is no good reason not to order that the respondent pay the costs of appeal of Wanganeen and Humes without reduction on account of mixed success (at [40]).
5The costs of the prosecution of Wanganeen and Humes in the Magistrates Court should be reserved to the Magistrates Court (at [41]).
6Orders made to the above effect (at [42] and [43]).

Sentencing Act 2017 (SA) ss 25, 26, 97, 114, 120; Fisheries Management Act 2007 (SA) ss 72, 74, 90, 100, 110; Native Title Act 1993 (Cth) s 211, referred to.

WANGANEEN v DIETMAN; SHAW v DIETMAN (No 2)
[2021] SASCFC 31

Full Court: Kourakis CJ, Kelly, Blue, Stanley and Doyle JJ

THE COURT: This Court previously allowed the appeal by appellants Simon Wanganeen and Henry Humes, set aside their convictions, entered an acquittal on count 3 and remitted counts 1, 2 and 4 to the Magistrates Court for a fresh trial.[1] The appeal by appellant John Shaw against his convictions on counts 1 and 2 was allowed and acquittals substituted and his appeal against his conviction on count 3 (being in joint possession or control of a prescribed class of aquatic resource[2]) was dismissed.[3]
[1]     Wanganeen v Dietman; Shaw v Dietman [2021] SASCFC 25 at [246]-[247].
[2]     Fisheries Management Act 2007 (SA) section 72(2)(c).
[3]     Wanganeen v Dietman; Shaw v Dietman [2021] SASCFC 25 at [248].
As a result of Shaw’s partial success on appeal, it is necessary that he be resentenced. This Court determined to resentence Shaw rather than remitting the matter to the Magistrates Court and heard submissions on sentence. Shaw and the respondent agreed on orders in relation to the costs of the appeal and the prosecution in the Magistrates Court.
This Court also heard submissions on the costs of the appeal by Wanganeen and Humes.
Resentencing of Shaw
The Magistrate, utilising section 26 of the Sentencing Act 2017 (SA) (the Sentencing Act), imposed a single penalty on Shaw in respect of the three counts of which he was convicted. The Magistrate discharged Shaw under section 97 of the Sentencing Act on his entering into a bond on his own recognisance of $100 to be of good behaviour for two years and to appear before the Court for sentence if he fails to comply with a condition of the bond. The two year term commenced on 27 February 2020, being the date when Shaw was sentenced and entered into the good behaviour bond.
The Magistrate imposed an additional penalty of $2,000 under section 110 of the Fisheries Management Act 2007 (SA) (the Fisheries Act), calculated by reference to the wholesale value of the abalone the subject of counts 1, 2 and 3 but reduced to a third.
The Magistrate made an order under section 100(1)(f) of the Fisheries Act prohibiting Shaw for two years from engaging in fishing for abalone or being in possession of abalone except when it can be proved that it was purchased from a licenced fish processor. The Magistrate made an order under section 90(1)(b)(i)(A) of the Fisheries Act that Shaw’s mask, snorkel, fins, catch bag and the abalone in the catch bag seized by fisheries officers be forfeited to the Crown.
The Magistrate stayed the forfeiture and additional penalty orders pending the outcome of the appeals against conviction that by then had been lodged.
The offending by Shaw involved the taking of five undersize abalone with a combined weight of approximately 470 grams. The maximum penalty for the offence of being in joint possession or control of a prescribed class of aquatic resource in contravention of section 72(2)(c) of the Fisheries Act was $20,000.[4]
[4] The maximum penalty for the pseudo-aggravated form of the offence where it involves the sale or purchase of fish of a priority species or the possession or control of fish of a priority species for the purposes of sale is imprisonment for four years or a fine of $50,000 but Shaw is only to be resentenced for the “non-aggravated” form of the offence.
As the Magistrate observed in his sentencing remarks, the objects of the Fisheries Act include protecting the aquatic resources of the State in a manner consistent with ecologically sustainable development and the implementation of conservation and management measures to protect them from over-exploitation and ensure that they are not endangered. The object of section 72 in its application to undersize abalone is to preserve the abalone fishery. Because abalone are slow-growing and seldom move about, breeding relies on density of population and the removal of undersize abalone removes a breeding generation from the population. Accordingly, general and personal deterrence are particularly important sentencing considerations.
The Magistrate in his sentencing remarks set out in detail Shaw’s personal circumstances and it is not necessary to repeat them at length. Shaw is now 32 years old and was 23 years old at the time of the offending in 2013. He has three children. His partner died unexpectedly in 2016. His children are in the care of Shaw’s family because Shaw is in custody on remand on unrelated and subsequent charges.
Shaw had an unremarkable upbringing. Up to 2017, he had a good employment history, working for four years as a fencing labourer, followed by five years employment by the Ngarrindjeri Regional Authority, followed by four years employment as a general labourer, plant operator and truck driver. He has no prior convictions for fisheries offences. He has two prior findings of guilt as a child. He has one conviction as an adult for driving under the influence of alcohol and associated driving offences.
On appeal, it is common ground that there are two alternative sentencing options: imposition of a fine or discharge of Shaw on his entering into a good behaviour bond. Given that the Magistrate discharged Shaw on a good behaviour bond on three counts and Shaw now stands to be sentenced for one less serious count, it is appropriate to adopt the option of discharging Shaw on his entering into a good behaviour bond.
On appeal, Shaw contends that a condition that he appear for sentence if he fails to comply with a condition of the bond should not be included because otherwise there would be double counting between the payment of a fine that might be imposed if he breaches a condition of the bond and the recognisance that might be payable if he breaches a condition of the bond.
Section 97 of the Sentencing Act provides:
97—Discharge of other defendants on entering into good behaviour bond
(1)If a court finds a person guilty of an offence, the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction, and without imposing any other penalty, on condition that the defendant enter into a bond—
(a)     to be of good behaviour; and
(b)     to comply with the other conditions (if any) included in the bond; and
(c)     if the terms of the bond so require, to appear before the court for sentence, or conviction and sentence, if the defendant fails during the term of the bond to comply with a condition of the bond.
(2)However, if the defendant is not to be so required to appear before the court, the court cannot impose any conditions under subsections (1)(b).
(3)If a defendant is discharged on a bond under this section—
(a)no fresh prosecution may be commenced in respect of the offence; and
(b)     the defendant will only be liable to sentence, or conviction and sentence, if the defendant fails to comply with a condition of the bond and the terms of the bond require the defendant to appear before the court for sentencing in that event.
Section 97 effectively gives to a court a discretion whether or not to include as a condition of a good behaviour bond a term requiring the defendant to appear before the court for sentence if the defendant fails to comply with a condition of the bond (an appear for sentence condition). If no such condition is included, the only tangible consequence of failing to comply with a condition of the bond is potential payment of the amount of the recognisance (assuming that a recognisance condition is included). On the other hand, if such a condition is included, on breaching a condition of the bond, the defendant is liable to be sentenced for the original offending as well as potentially paying the amount of the recognisance.
This Court was informed that it is general practice by Magistrates to include an appear for sentence condition when imprisonment is one of the sentencing options for the offence. There is good reason to adopt such an approach because, as a matter of principle, it is undesirable that the only tangible sanction for breaching a condition of a good behaviour bond in a case where the maximum penalty is imprisonment is potential payment of the amount of the recognisance.
This Court was informed that, if the maximum penalty for an offence is a fine (with no option of imposing imprisonment), there are occasions on which good behaviour bonds include an appear for sentence condition and other occasions on which they do not. We observe that, if the only tangible sanction for breach of a condition of a good behaviour bond is payment of the amount of a recognisance, on hearing a breach proceeding section 114(2) will preclude the court from ordering payment of the recognisance amount unless affirmatively satisfied the defendant has or will within a reasonable time have the means to pay the amount and payment would not unduly prejudice the welfare of dependants of the defendant. This entails that often there will be no tangible sanction for non-compliance with the good behaviour condition of the bond if an appear for sentence condition is not included.
We consider that in general, if an appear for sentence condition is not included, the amount of the recognisance should be fixed primarily by reference to the fine that would have been imposed if the defendant had been sentenced rather than entering into a bond to be of good behaviour. On the other hand, if an appear for sentence condition is included, the amount of the recognisance should be a relatively nominal amount because the primary sanction for breaching a condition of the bond will be imposition of sentence rather than payment of the amount of the recognisance. Indeed, in such a case, the sentencing court has a discretion not to order payment of the recognisance amount even if the defendant can afford to pay it.[5]
[5] Sentencing Act 2017 (SA) section 114(1)(a).
In the present case, despite the different circumstances, it is appropriate that there be no change to the terms or length of the bond entered into by Shaw on 27 February 2020, namely that the bond be for two years from that date, include an appear for sentence condition and include a recognisance in the amount of $100. We do not set aside the sentencing order made by the Magistrate insofar as he discharged Shaw on his entering into the good behaviour bond.
The respondent invites the Court to impose an additional penalty under section 110 of the Fisheries Act of five times the wholesale value of the five abalone the subject of count 3. The Information contains an averment that the wholesale value of the abalone at the time of commission of the offence was $51.70 and there is no dispute that this was the wholesale value of the abalone at the time.
Section 110 of the Fisheries Act provides:
110—Additional penalty based on value of aquatic resources
(1)Subject to subsection 2, this section applies to an offence against this Act involving the taking, sale or purchase, or possession or control, of aquatic resources.
(2)This section does not apply to an offence against section 78(1).
(3)If a person is convicted of an offence to which this section applies, the court must, in addition to imposing any other penalty prescribed by this Act, impose a penalty equal to—
(a) 5 times the amount determined by the convicting court to be the wholesale value of the aquatic resources at the time at which the offence was committed; or
(b)$100 000,
whichever is the lesser amount.
(4)For the purposes of this section, aquatic resources taken in contravention of this Act or a corresponding law will be taken to have a wholesale value equivalent to that of aquatic resources of the same class taken lawfully.
Although the reference in section 110(3)(a) to “wholesale value” is likely to be a reference to wholesale value in the lawful market (as opposed to the “black market”) and undersize abalone are not legally saleable in the lawful market, the effect of subsection 110(4) is that the abalone are deemed to have a wholesale value equivalent to that of abalone taken lawfully, that is of non-undersize abalone. The wholesale value of abalone is calculated by reference to weight and hence the deemed wholesale value under subsection 110(4) of the undersize abalone is their value by reference to their weight in the lawful abalone market.
Shaw invites the Court not to impose the additional penalty otherwise mandated by section 110 of the Fisheries Act on the ground that he is impecunious and unable to pay the penalty. Shaw relies in this respect on subsection 25(2) of the Sentencing Act. Section 25 relevantly provides:
25—Court may reduce, add or substitute certain penalties
…
(2)Subject to this Act or any other Act that prohibits the substitution or mitigation of a penalty prescribed under the Act, if, on convicting a defendant or finding a defendant guilty of an offence, the court thinks that good reason exists for departing from the penalty provided for the offence under the Act, the court may—
(a)     impose another type of sentence for the sentence prescribed under the Act for the offence; or
(b)     impose more than 1 type of sentence as the court thinks appropriate in the circumstances.
(3)For the purposes of subsection (2)—
(a)     if the Act prescribes a sentence of imprisonment only for the offence, the court may instead impose—
(i)a sentence of imprisonment (including a community based custodial sentence or a suspended sentence); or
(ii)a fine; or
(iii)a sentence of community service; or
(iv)both a fine and a sentence of community service; or
(b)     if the Act prescribes a sentence of both imprisonment and a fine for the offence, the court may instead impose—
(i)a sentence of imprisonment (including a community based custodial sentence or a suspended sentence) only; or
(ii)a fine only; or
(iii)a sentence of community service; or
(iv)both a fine and a sentence of community service; or
(c)     if the Act prescribes a sentence of imprisonment or a fine in the alternative for the offence, the court may instead impose—
(i)a sentence of community service; or
(ii)both a fine and a sentence of community service; or
(d)     if the Act prescribes a fine only for the offence, the court may instead impose a sentence of community service.
It is clear from subsection 25(2), and reinforced by subsection 25(3), that this provision does not empower a court to reduce the amount of a penalty mandated by another Act, but rather empowers a court to impose a different type of penalty. In the present case, it would empower the court to impose a sentence of community service instead of or in addition to a fine.
However, subsection 120(1) of the Sentencing Act provides:
120—Order for payment of pecuniary sum not to be made in certain circumstances
(1)The court must not make an order requiring a defendant to pay a pecuniary sum (other than a VIC levy) if the court is satisfied that the means of the defendant, so far as they are known to the court, are such that—
(a)the defendant would be unable to comply with the order; or
(b) compliance with the order would unduly prejudice the welfare of dependants of the defendant,
(and in such a case the court may, if it thinks fit, order the payment of a lesser amount).
A pecuniary sum is defined by section 5(1) in the following terms:
pecuniary sum means—
(a)     a fine; or
(b)     compensation; or
(c)     costs; or
(d)     a sum payable under a bond or to a guarantee ancillary to a bond; or
(e)     any other amount payable under an order or direction of a court,
and includes a VIC levy;
An additional penalty under section 110 of the Fisheries Act falls within paragraph (e) of the definition of pecuniary sum.
The respondent does not take issue with Shaw’s contention that he is impecunious. We are satisfied that the criteria contained in subsection 120(1) of the Sentencing Act are met and no additional penalty should be imposed pursuant to section 110 of the Fisheries Act. We set aside the sentencing order made by the Magistrate insofar as he imposed an additional penalty.
We observe in passing that section 97 of the Sentencing Act provides for a defendant to be discharged “without imposing any other penalty”. We are disposed to consider that an additional penalty under section 110 of the Fisheries Act falls within the words “any other penalty” and hence an additional penalty could not in any event be imposed at the same time as a good behaviour bond but could be imposed (subject to section 120) on Shaw being sentenced if he breaches the conditions of the good behaviour bond. However, it is not necessary to decide this question for present purposes.
The respondent contends that it remains appropriate that Shaw be prohibited under section 100(1)(f) of the Fisheries Act from fishing for abalone. Shaw contends that, given the nature and extent of his offending, this is unnecessary. However, as observed above, general and personal deterrence are important considerations in sentencing for this offence. Despite the different circumstances, the order made by the Magistrate prohibiting Shaw from fishing for abalone until 27 February 2022 remains appropriate and we do not set aside the sentencing order made by the Magistrate insofar as he made the prohibition order.

The respondent contends that Shaw’s mask, snorkel, fins, catch bag and the abalone seized by the fisheries officers should be forfeited to the Crown under section 90(1)(b)(i)(A) of the Fisheries Act. Shaw does not oppose forfeiture. We do not set aside the sentencing order made by the Magistrate insofar as he made a forfeiture order.
As noted above, it is agreed between the respondent and Shaw that an order should be made that the respondent pay Shaw’s costs of the prosecution in the Magistrates Court and Shaw’s costs of the appeal. We make orders in those terms.
Costs of Wanganeen and Humes on appeal
Wanganeen and Humes seek an order that the respondent pay their costs of the appeal. The respondent does not resist an order that he pay a proportion of their costs on appeal, but contends that he should only be ordered to pay 50 per cent of their costs on appeal.
Wanganeen and Humes were successful on appeal in that their convictions on all counts (four counts in the case of Humes and three counts in the case of Wanganeen) were set aside. They were acquitted of one count (count 3) and the matter remitted to the Magistrates Court for a retrial in respect of the remaining counts. The starting point is that costs ordinarily follow the event and Wanganeen and Humes were successful.
The respondent points to the fact that Wanganeen and Humes did not obtain acquittals on all counts as opposed to remission to the Magistrates Court for a retrial. This is not significant to the issue of costs of the appeal. The logical order flowing from success by Wanganeen and Humes on their primary grounds of appeal relating to counts 1, 2 and 4 (grounds 1 and 5) was remission to the Magistrates Court for retrial rather than acquittal. Although they advanced a contention on appeal that acquittals should be entered, this contention occupied relatively little time on appeal. In addition, that contention involved consideration of the same evidence and matters as was required in any event by the respondent’s unsuccessful contention that the convictions should be affirmed notwithstanding the erroneous reasoning of the Magistrate.
The respondent points to the fact that, while Humes succeeded on his contention that the Magistrate erred in applying the presumption contained in section 72 of the Fisheries Act to count 4 which involved a contravention of section 74 of the Fisheries Act, the respondent had not invited the Magistrate to apply that presumption at trial and conceded the error on appeal. This is not a reason to reduce the costs of appeal ordered to be paid by the respondent for the very reason that only negligible time was devoted to this issue on appeal because of the respondent’s concession.
The respondent points to the fact that Wanganeen and Humes abandoned ground 4 on the last day of the hearing of the appeal. The abandonment of a substantial ground of appeal in respect of which substantial costs have been incurred on the appeal may well be a reason to reduce the costs awarded on appeal in favour of a successful appellant. However, it was apparent to the respondent from the outset that ground 4 was not an intelligible ground of appeal, reflected in the fact that no significant submissions on ground 4 were advanced by either party on appeal. The costs incurred by reason of the inclusion of ground 4 were negligible and not such as to justify a different order as to the costs of appeal.
The respondent points to the fact that this Court did not decide the issue raised on appeal, on which substantial time was expended, whether the onus of proof in respect of the elements of the application of section 211 of the Native Title Act 1993 (Cth) lies on the defendant on the balance of probabilities (as contended by the respondent) or on the prosecution beyond reasonable doubt (as contended by the appellants). The respondent contends that each party should notionally bear their own costs in respect of this issue (and hence on a broad axe assessment the appellants should only be awarded a proportion of their costs of the appeal).
It may be accepted, as a matter of general principle, that in civil appeals there will be some circumstances in which the parties should (notionally or actually) bear their own costs of appeal on an issue not decided by the appellate court. But there will be other circumstances (probably more frequent) in which the successful party should not be deprived of a portion of their costs on appeal on this account. However, as a matter of general principle, it will be uncommon for a successful appellant defendant to be deprived of a portion of their costs merely because an issue was raised on appeal which the appellate court did not need to decide. In the present case, the respondent at first instance accepted that he bore the onus of proof beyond reasonable doubt on the section 211 criteria. The respondent contended for the first time on appeal that the onus of proof lies on the defendant on the balance of probabilities. The reason that this Court did not need to decide this issue was that the appellants succeeded on the anterior ground of erroneous reasoning by the Magistrate, a ground resisted by the respondent on appeal. In the circumstances, the fact that this Court did not decide the onus issue is not a reason to deprive the appellants of a portion of their costs on appeal.
It follows that the appropriate order is that the respondent pay the costs of appeal of Wanganeen and Humes.
In relation to the costs of the prosecution in the Magistrates Court, this Court has remitted the matter to the Magistrates Court for a fresh trial. The parties rightly accept that the appropriate order is that the costs of the prosecution in the Magistrates Court be reserved to the Magistrates Court.
Conclusion
We make the following further orders for the disposition of the appeal by Shaw:
1We make the following orders in relation to the sentencing orders made by the Magistrate:
(a)the additional penalty and costs orders made by the Magistrate are set aside but the Magistrate’s order that Shaw be discharged on entering into the good behaviour bond, prohibition order and forfeiture order are not set aside;
(b)the respondent pay Shaw’s costs of the prosecution in the Magistrates Court to be adjudicated if not agreed.
2The respondent pay Shaw’s costs of the appeal to be adjudicated if not agreed.
We make the following further order for the disposition of the appeal by Wanganeen and Humes:
1The respondent pay Wanganeen’s and Humes’s costs of the appeal to be adjudicated if not agreed.