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…
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- Case
- [2021] SASCFC 31
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Full Court were the appropriate sentencing orders for Shaw, given the partial success of his appeal, and the allocation of costs for both Shaw's appeal and the appeals of Wanganeen and Humes, considering the mixed outcomes. Specifically, the Court had to determine whether the Magistrate's sentencing orders for Shaw, including a good behaviour bond, prohibition order, and forfeiture order, remained appropriate, and whether an additional penalty and costs orders made by the Magistrate should be set aside. The Court also had to decide on the costs of the prosecution in the Magistrates Court and the costs of the appeals for all parties.
The Full Court affirmed the Magistrate's order for Shaw's discharge upon entering into a good behaviour bond, prohibition order, and forfeiture order, finding these to be appropriate. However, the Court set aside the additional penalty and costs orders made by the Magistrate in relation to Shaw. Regarding costs, the Court ordered that the respondent pay Shaw's costs of the prosecution in the Magistrates Court and Shaw's costs of the appeal. For Wanganeen and Humes, the Court ordered that the respondent pay their costs of appeal without reduction for mixed success, and that the costs of the prosecution in the Magistrates Court be reserved to that court for determination.
Orders
Orders of the court
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):
1 The 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]).
2 The additional penalty and the costs orders made by the Magistrate in relation to Shaw should be set aside (at [28]).
3 Orders 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]).
4 There 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]).
5 The costs of the prosecution of Wanganeen and Humes in the Magistrates Court should be reserved to the Magistrates Court (at [41]).
6 Orders made to the above effect (at [42] and [43]).
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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