Supreme Court of SA|1999-06-03|Before: Martin J

HEMMING v PERKINS; HEMMING v STEMBERGER No. SCGRG-99-253, SCGRG-99-254 Judgment No. S212 [1999] SASC 212 (3 June 1999)

OFFENCES APPEAL TO REDUCE PENALTY - APPEAL BY ATTORNEY GENERAL OR OTHER CROWN LAW OFFICER - APPLICATION TO INCREASE PENALTY - DISPARITY - EXTENSION OF TIME Offences against the Fisheries Act, 1982 - Fine of $600 and additional penalty of $7,963 imposed on Stemberger - fine of $500 and additional penalty of $30,000 imposed on Perkins - Crown appeals - whether fines imposed on both respondents manifestly inadequate - whether additional penalty should be ignored when imposing fines - appeals by defendants - whether total penalties of fines plus additional penalties were manifestly excessive - gravity of the offending conduct - statutory interpretation - parliamentary intent - meaning of `any other relevant matter' - avoiding harshness - general deterrence - protection of States natural resources - concept of duality of purpose - totality principle - disparity - antecedents - whether financial position of Perkins should be considered when imposing the total penalty - application of ss10, 13, 17 and 18 of the Criminal Law (Sentencing) Act 1988 - threshold test - meaning of `pecuniary sum' - meaning of `fine' - reducing additional penalty below the minimum - community service instead of a fine - extension of time. Held: Crown appeals dismissed. In relation to the appeal of Perkins: Appeal allowed. (1) The additional penalty fixed pursuant to s66 of the Fisheries Act by reference to the wholesale value of the fish must be taken into account when determining the fine for the offending under the principal offence section. (2) , and of the apply to both the principal section and s66 of the Fisheries Act. (3) The Magistrate erred in not considering and applying of the . (4) Both the fine of $500 and the additional penalty of $30,000 set aside. (5) Pursuant to of the , good reason exists for departing from the penalty provided by the Fisheries Act. A penalty of 200 hours community service to be performed within 18 months imposed. (6) In accordance with of the , an additional penalty of $500 imposed. In relation to Stemberger: Extension of time to appeal refused. The total pecuniary penalty of $8,563, comprised of the fine of $600 and the additional penalty of $7,963, was not manifestly excessive.

Fisheries Act 1982 s41, s44(1), s44(2)(a), s66(1);
Fisheries (General) Regulations 1984 reg5, reg35(e), reg7(b);
Criminal Law (Sentencing) Act 1988 s10, 13, s17, 18;
National Parks and Wildlife Act 1972 s60(1)(a), s74;
Crimes Act 1914 (Cth) s29D;
Crimes (Confiscation) Act 1986 (Vic.) ;
Offenders Probation Act 1913 s4;
Road Traffic Act 1961 s47, referred to.
Byrne v McLeod [1934] HCA 61; (1934) 52 CLR 1;
Ferraro v Glover [1989] SASC 1426; (1989) 51 SASR 559;
Walker v Eves (1976) 13 SASR 249;
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295;
R v Rossi (1988) 142 LSJS 451;
Jones v Morley (1981) 29 SASR 57;
Clark v Glover (1992) 58 SASR 571, applied.
Glover v Haseldine (1990) 158 LSJS 271;
Liddy v Cobiac (1969) SASR 6;
Ly v Glover (1989) 150 LSJS 449;
Kowald v Hoile (1975) 12 SASR 101;
Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257;
Beavan v Rankine (1983) 36 SASR 120;
Davies v White [1991] SASC 2817; (1991) 56 SASR 30;
Caldow & Shannon v Hemming (1991) 55 A Crim R 449;
Kent v Police (1998) 72 SASR 205;
Measey v Police (unreported judgment S6318 delivered 7 August 1997) , discussed.
Stephenson v Brine (1983) 32 SASR 161;
R v Whitnall [1993] FCA 271; (1993) 120 ALR 449;
R v Allen (1989) 41 A Crim R 51;
Ferraro v Glover (No. 2) (1989) 45 A Crim R 95;
Glover v Romanowcyz (1991) 55 SASR 524;
Feast v Hemming (1993) 169 LSJS 135;
Button v Police (1997) 71 SASR 258, considered.

Counsel: MR M G HINTON - Solicitors: CROWN SOLICITOR FOR THE STATE OF SOUTH AUSTRALIA

Counsel: MR D AGRESTA - Solicitors: JOHNSON WINTER & SLATTERY

1 MARTIN J. The respondents pleaded guilty to a number of offences against the Fisheries Act, 1982 ("the Act"). The Crown appeals against the fines imposed on both respondents on the ground that they are manifestly inadequate. The respondent Perkins also appeals on the grounds that the total penalty, comprised of the fine and an additional monetary penalty, was manifestly excessive and that, in view of his financial position, no monetary penalty should have been imposed. The respondent Stemberger seeks an extension of time within which to appeal. The Notice of Appeal is dated 9 April 1999 and contends that the total penalty, including the additional monetary penalty, is manifestly excessive.

2 Perkins was charged with 18 counts of selling fish taken in waters to which the Act applies, but not pursuant to a licence, contrary to s44(1) of the Act. The offences occurred over a lengthy period from September 1996 to February 1998. All the sales were made to the respondent Stemberger. Over that period the total weight of fish sold in respect of the 18 counts was 38.5 kilograms of King George Whiting, 22.3 kgs of Snapper and 422.7 kg of Rock Lobster. The total wholesale value of the unlawfully taken fish covered by the 18 counts was $12 399.40.

3 Perkins also pleaded guilty to three further charges. First, that on about 18 February 1998 he engaged in a fishing activity of a prescribed class contrary to s41 of the Act and reg5 of the Fisheries (General) Regulations, 1984 ("the Regulations"). He caught 13 undersized Rock Lobster which were each less than the legal minimum length of 10.2 centimetres. Secondly, that on 18 February 1998 he failed to clip the middle tail fan horizontally before the Rock Lobster was brought ashore contrary to reg35(e) of the Regulations. Thirdly, that on 25 February 1998 he had in his possession for the purposes of sale, fish taken contrary to s44(2)(a) of the Act and reg7(b) of the Regulations. The particulars were that he had in his possession 52 Rock Lobster which was 33 Rock Lobster more than the prescribed quantity of Rock Lobster that a person may possess. The wholesale value of the fish was $517.40.

4 The maximum penalty for the 18 offences against s44(1) and the final count of possession for the purposes of sale of fish taken in contravention of the Act was a fine of $8 000 on each count. The remaining two offences each attracted a maximum fine of $2 000. On 18 February 1999 the Magistrate imposed a single fine of $500 and it is that fine which the Crown contended is manifestly inadequate.

5 An additional penalty of $30 000 was imposed as a consequence of the operation of s66(1) of the Act. That section is in the following terms:

"Additional penalty based on value of fish taken unlawfully

(1) Where a person is convicted of an offence against this Act involving fish taken in contravention of this Act, the court must, in addition to imposing any other penalty prescribed by this Act, impose a penalty equal to -

(a) five times the amount determined by the convicting court to be the wholesale value of the fish at the time at which the offence was committed; or

(2) For the purposes of subsection (1), a fish taken in contravention of this Act is to be taken to have a wholesale value equivalent to that of a fish of the same species taken not in contravention of this Act."

6 Her Honour also ordered forfeiture of the seized fish and fishing equipment. There is no appeal against that order.

7 Stemberger pleaded guilty to three counts of purchasing fish taken in waters to which the Act applies, but not pursuant to a licence. Those three offences occurred in November 1996, November 1997 and February 1998 and involved a total of 57 kilograms of Rock Lobster with a combined wholesale value of $1 592.60. In addition, Stemberger pleaded guilty to one offence against s54 of the Act that on 25 February 1998, by purchasing fish from Perkins, who was not a registered fish processor, for the purpose of trade or business, he acted as a fish processor without being registered under s54 of the Act. The maximum penalty for the first three counts was a fine of $8 000 in respect of each count. The fourth count attracted a maximum fine of $4 000.

8 Upon Stemberger pleading guilty to those four counts, the remaining 23 counts against Stemberger were withdrawn on the basis that the offending conduct covered in those withdrawn counts was to be taken into account as providing particulars of a course of conduct over the period of time alleged. In essence, the total offending conduct of Stemberger was represented by his purchases of Rock Lobster and other fish specified in the 18 counts of selling fish to which Perkins had pleaded guilty. He was to be sentenced, therefore, on the basis that he was not entitled to the leniency that might have been extended if the offences to which he pleaded guilty were isolated offences (R v D [1997] SASC 6350; (1997) 96 A Crim R 364 at 369).

9 The Magistrate convicted Stemberger on each count and imposed a single fine of $600. The Crown appeals against that fine on the basis that it is manifestly inadequate. Her Honour imposed an additional penalty of $7 963 as required by s66(1) of the Act.

10 The offending was discovered when fisheries compliance officers became aware of a delivery to Stemberger of three white foam boxes from a bus that had begun its journey on Yorke Peninsula. Those foam boxes contained a large quantity of seafood. The officers interviewed Stemberger who indicated that he had not done anything like this on a prior occasion. He told them he had purchased the seafood from Perkins.

11 During submissions as to penalty, counsel for Stemberger advised the Magistrate that his client had met Perkins at a fish market and arranged to purchase quantities of seafood from him. The purchases were made at prices slightly below the normal wholesale cost and not much commercial benefit was gained. He sold the fish through his business and had no intention of deliberately breaching the provisions of the Act. Her Honour accepted that Stemberger had been in the fishing industry for some 20 years and, due to some confusion relating to the "complex requirements" of the Act, he was not the holder of the appropriate licences. As counsel for the Crown pointed out, however, the purchases from Perkins were offences irrespective of any licences held by this respondent.

12 Stemberger is 47 years of age and married with four children. He has no prior convictions and is a highly respected member of the fishing industry. Her Honour noted the submission that there had been no attempt to hide the sales as the transactions were recorded in documentation given by Stemberger to the fisheries compliance officers.

13 Investigators spoke to Perkins after Stemberger nominated him as the source of supply. When the officers searched Perkins' premises at Yorketown, they found a chest freezer containing a number of Rock Lobster tails and a walk-in freezer containing a quantity of lobsters.

14 Perkins appeared before the Magistrate some days after Stemberger had pleaded guilty and presented submissions. Contrary to the submissions presented by Stemberger, it became apparent through the submissions put on behalf of Perkins that they had first met when Perkins was conducting a poultry business. He had supplied Stemberger with poultry and, during the course of their contact in relation to those sales, Stemberger became aware that Perkins did a large amount of fishing and expressed interest in buying his catch. Perkins was initially concerned about the proposal, particularly Stemberger's request not to clip the tails of any lobster, but with full knowledge of the illegality of the proposal he chose to proceed with the deal and took on the role of supplying, to order, quantities of seafood to Stemberger. He denied he had met Stemberger in the fish market and denied ever leading him to the false assumption that he was properly licensed.

15 Perkins is 44 years of age and lives in a de facto relationship with two children aged 9 and 7. He has lived in Yorketown all his life and had what the Magistrate described as a "marginal education". He worked with ETSA for a considerable period as a linesman prior to his retrenchment in 1993. He then purchased the property in Yorketown and commenced the poultry business. Counsel described Perkins and his family as living at "subsistence level" with no savings, but able to afford $20 per fortnight in payment of a pecuniary penalty. That description of the financial circumstances was accepted by the Crown as accurate both before the Magistrate and in this Court.

16 The Magistrate noted the submissions on behalf of Perkins that "this was really a situation where a poor man with a wife and children was eking out a frugal existence and took on a role to supplement his income". He had prior convictions relating to the use of lobster pots, but the facts of those matters mean the convictions are irrelevant for present purposes.

17 Her Honour observed that the version of events given by Perkins did not sit well with the submission that Stemberger was unaware of the requirements of the Act. She added that the assertion by Stemberger also had to be viewed against the fact that he had been in the industry for 20 years in a leading role. The only conclusion the Magistrate appears to have reached in this respect was in the following passage:

"There was little or no view given by Stemberger to the licence questions and of course there is a commercial flavour about the offences themselves".

18 In arriving at a view as to the appropriate penalty in each instance, the Magistrate was clearly aware that the offences were serious. She referred to the difficulty of detection and policing and to the fact that very harsh penalties are imposed under the legislation. She was cognisant of the intent of the Act to protect and manage the fishing industry in this State and the way in which the harsh penalties reflect the concern of Parliament and the community in this area. She also referred to the paramount importance of general deterrence.

19 Her Honour was obviously concerned that the additional penalty would impact adversely upon Perkins. She referred to the heavy impact upon him and his family that a penalty even at its lowest would have. The acceptance of Perkins' poor financial circumstances is demonstrated by the order that he be given sufficient time to pay the total penalty at the rate of $20 per fortnight.

20 In respect of Stemberger, her Honour observed that this was not a trifling offence nor was it atypical or unusual. She added that she took into account the submissions and the provisions of s10 of the Criminal Law (Sentencing) Act 1988 ("the Sentencing Act").

21 In my opinion, if the additional penalties of $30 000 and $7 963 fixed by s66(1) of the Act are ignored, the fines of $500 and $600 are manifestly inadequate. They do not adequately reflect the gravity of the offending conduct or the clear policy of the Act which requires that penalties reflect the primary importance of general deterrence and the need to protect the State's natural resources. It is difficult to avoid the conclusion that her Honour was considerably influenced by the severity of the additional penalties that she was obliged to impose pursuant to s66(1), particularly in the case of Perkins. If it was permissible to take into account the additional penalties in fixing each of the fines for the offending against s44(1), counsel for the Crown properly conceded that the Crown appeals must fail.

22 The Crown submitted that in arriving at a decision as to the appropriate penalties for the offending, the Magistrate was obliged to ignore the additional penalties imposed pursuant to s66(1) of the Act. Counsel pointed to the different purposes being served by ss44 and 66. The former is concerned with the criminality of the conduct and all the common law principles of sentencing reflected by the provisions of the Sentencing Act are applicable. It was submitted, however, that those principles are irrelevant to the fixing of an additional penalty pursuant to s66(1) which is calculated by reference to the quantity of the fish taken and its wholesale value at the time the offence was committed.

23 The Crown referred to the judgment of Wells J in Stephenson v Brine (1983) 32 SASR 161. His Honour was concerned with a conviction for possessing a number of protected animals that had been illegally taken or acquired contrary to s60(1)(a) of the National Parks and Wildlife Act 1972. The maximum penalty prescribed was $1 000. Provision was made for an additional penalty by s74 of that Act which required that the court, in addition to imposing the penalty authorised by the provision under which the offence arose, impose an "additional fine" based on the number of animals involved in the commission of the offence. The maximum payable was $100 per animal and the Magistrate had fixed on $50 per animal resulting in an additional penalty of $4 150.

24 The Crown relied upon the concept of duality of purpose as explained by Wells J in the following passage (p163):

"The penalty sections are in an unusual form. The standard form of such sections enjoins the Court to look at the offence as a whole, and, where a fine is called for, to impose one fine in respect of that whole. The Special Act here, however, imposes one penalty for the offence, and a separate and additional penalty in respect of every item "involved in the commission of the offence". It is necessary, therefore, to determine what is the particular role to be played by each sort of penalty.

It is significant, in my opinion, that the penalty of $1 000 fine, as a maximum, is established by the same section as creates the particular offence for which the appellant was convicted, and another, and general, section confers the power and imposes the duty to impose additional fines in respect of individual animals. This duality of creation carries the implication, to my mind, that the principal section (s60) setting the $1 000 maximum is directed more to the criminality of the operation as a whole in which the animals were taken, and the section dealing with additional penalties directs the Court's attention to the nature and number of each animal "involved", and to its numbers and chances of survival in the environment from which it was taken."

25 His Honour then concluded that the offending was not the worst of its type and the maximum fine of $1 000 imposed by the Magistrate should be reduced to $700. As to the additional penalty, in his Honour's view the Magistrate had been left by the prosecution "...with insufficient material to enable him to make a confident and flexible appraisal of the loss to the environment of each animal". His Honour then used what he described as "something of a broad axe" and determined that some species seemed more precious to conservationists than others. He imposed an additional penalty of $50 in respect of 50 of the animals taken and $40 in respect of each of the rest.

26 The different purposes identified by Wells J do not lead to a conclusion that, in exercising his sentencing discretion, his Honour was obliged to ignore the "additional fine" in determining the appropriate fine under the principal section. While the criteria by which his Honour was required to fix the fine under the principal section differed from the criteria used to assess the additional fine, that additional fine was part of the total penalty imposed upon the offender for the offending conduct. There is nothing is his Honour's remarks to suggest that he fixed one without regard to the other. In addition, his Honour was clearly influenced by the gravity of the offending in fixing the additional fines because he fixed a higher amount in respect of the more precious animals. Viewed in this way, s66 can also be seen as concerned with the gravity of the offending because the penalty is fixed by reference to the value of the fish which is determined by the quantity and type of fish involved in the offences.

27 The legislature has not specifically indicated an intention that the additional penalty should be ignored when fixing the penalty under the principal section. It might be argued that by providing for a penalty to be imposed "in addition to imposing any other penalty prescribed by this Act", it is implicit that Parliament intended the additional penalty to be ignored when fixing the amount of the fine under the principal section. Such an interpretation obviously has the potential to result in total penalties that are not merely harsh, but are out of all proportion to the culpability of the offender. The principles of interpretation require that an interpretation with those consequences should not be preferred unless Parliament has directly or by clear and necessary implication declared its intention to that effect. As Dixon J pointed out in Byrne v McLeod [1934] HCA 61; (1934) 52 CLR 1 at 8:

"The principles of interpretation require that, in case of doubt, that meaning shall be adopted which will avoid harshness and will give the Courts authority to do what appears just in each particular case."

28 In determining the penalty to be imposed for the breaches of the principal provisions of the Act, the court is required to have regard to s10 of the Sentencing Act. That section directs the court's attention to a number of specific matters and, finally, to "any other relevant matter". The amount payable by way of additional penalty is part of the total penalty and is clearly a "relevant matter". Sentencing courts regularly take into account other types of additional punishment suffered by an offender such as adverse publicity, loss of professional standing and loss of employment as factors which entitle the offender to a degree of mitigation of the penalty imposed under the principal section.

29 The approach taken by the Federal Court to the impact on sentencing of administrative penalties imposed upon an offender by the Commissioner of Taxation is of assistance. In R v Whitnall [1993] FCA 271; (1993) 120 ALR 449, the Crown appealed against a penalty imposed for offences of defrauding the Commonwealth by the presentation of false taxation returns contrary to s29D of the Crimes Act 1914 (Cth). After the offences had come to light, the Commissioner of Taxation levied interest, at penal rates, and penalties totalling $69 324.24. Of that amount, $42 794.15 was penalty rather than interest. Higgins J expressed the view that it was correct for the learned sentencing judge to take into account the pecuniary penalty imposed administratively (p455). Drummond J agreed saying there is an element of oppression involved in asking the court to deal severely with an offender who has already been heavily punished by the Commissioner (p458).

30 A similar approach has been adopted in making allowance for the effect of pecuniary penalty orders and forfeiture of assets. In R v Allen (1989) 41 A Crim R 51, the Victorian Court of Criminal Appeal referred to orders under the Crimes (Confiscation of Profits) Act 1986 (Vic.) as intended to be part of the retribution exacted from offenders on behalf of the community and said (pp57-58):

"[I]f at the time of sentencing it is apparent that the profits of the crime are confiscated, it is appropriate to bear that circumstance in mind when sentencing the offender.

The weight to be attached for the purposes of sentencing to the fact that a confiscation order has been made is of course an entirely different matter. Often it may be entitled to little weight. But if, for example, the crime was one involving a fraud of some millions of dollars, it might be seen to have some real relevance when sentencing to be aware that a confiscation order has been made that was likely to be effective in the recovery of the amount of the fraud.

It may be that for some reason the court may also see that in the very making of a confiscation order, there is something in the nature of punishment wrought. For example, if an offender who has mixed the profits of his crime of fraud with lawfully gotten gains, and purchased a residential property in which his innocent wife and family live with him in apparent respectability, has a confiscation order made apropos that residence, it might be seen that the order, in causing the disruption of his whole family, is in itself a form of punishment to him. The circumstances can vary infinitely, and any attempt to contemplate them in advance is futile."

31 The court then referred to a passage from D A Thomas, Principles of Sentencing (2nd Ed., 1979) p336 which reads:

"These cases may justify the view that where the property is specifically adapted for the commission of the offence, or has no other use to the offender, it may be confiscated without regard to the totality of the other sentence or sentences imposed; but where the property is used for a wide variety of purposes and used incidentally in connection with the offence, a confiscation order should be treated as analogous to a fine."

32 The principle enunciated in R v Allen has subsequently been accepted in a number of authorities. These include R v Tsolacos (1995) 81 A Crim R 434 at 435, R v McDermott (1990) 49 A Crim R 105 at 116 and 120 and R v Wignall (1992) 61 A Crim R 54 at 56.

33 In my view, a consideration of two other South Australian authorities also lends support for the conclusion that the additional penalty is properly taken into account in assessing the level of a fine to be imposed under s44. In Ferraro v Glover [1989] SASC 1426; (1989) 51 SASR 559, the Court was concerned with a finding by a judge on appeal from a magistrate that, because there was no lawful wholesale market for undersize fish, there could be no wholesale price within the meaning of s66 for such fish. The Full Court disagreed and remitted the matter to the single judge for further consideration. In the course of considering the competing arguments concerning the interpretation of s66, Cox J referred to the policy of the Act "...of not prescribing a particularly large penalty for a specific breach of the Act, so that the s66-type provision is left to provide a realistic degree of proportionality between the gravity of the actual offence committed and the punishment that is prescribed for it". His Honour accepted an interpretation of the section that treats it in an analogous fashion to a forfeiture clause which stands outside the specific penalty provision and fastens on the fish that were the subject of the offences.

34 In Walker v Eves (1976) 13 SASR 249, Bray CJ considered the same provisions of the National Parks and Wildlife Act 1972 that were the subject of the decision by Wells J in Stephenson v Brine. A principal fine of $200 had been imposed together with an amount of $20 for each of 159 birds mentioned in the complaint making a total of $3 380. After referring to the penalties as representing about two fifths of the maximum indicating that the magistrate treated the case as below, but approaching the mid-way mark of seriousness, his Honour said (p253):

"The total fine appears enormous, but this is the result of the deliberate policy of Parliament in s.74. It makes the penalty proportionate to the number of individual animals involved. No doubt Parliament thought that the trade was a lucrative one and one hard to detect and that it should be made unprofitable to those minded to engage in it by a penalty proportionate to the magnitude of the enterprise. In cases like this I think that the deterrent aspect of punishment is paramount."

35 It is apparent that Dr Bray considered whether the total penalty, including the additional amount imposed under s74, was manifestly excessive. He did not ignore the additional amount and decide whether the principal fine was manifestly excessive considered in isolation from the additional amount. I recognise that s74 of the National Parks and Wildlife Act referred to the additional penalty as an "additional fine", but that additional fine was fixed by the court having regard to the number and type of animals involved in the commission of the offence. In my view, therefore, for present purposes there is no distinction to be drawn between s74 of that Act and s66 of the Act presently under consideration.

36 Earlier in these reasons I referred to the interpretation requiring the court to ignore the additional penalty when fixing the fine under the principal section as likely to lead to total penalties that were out of all proportion to the culpability of the offender. Such a result would offend the totality principle which requires an evaluation of the overall criminality of the conduct of the offender. This principle has received recent confirmation by the High Court in Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295. McHugh J (at p308) cited the following passage from the judgment of King CJ in R v Rossi (1988) 142 LSJS 451 at 453:

"There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect."

37 Although the totality principle is usually applied where an offender is sentenced for a number of crimes, in my opinion the principle is equally applicable to the fixing of the penalty for a breach of the principal provisions of an Act where the Act also requires the imposition of an additional penalty. The total effect of all penalties must be considered. Parliament is taken not to have intended to derogate from such an important principle unless its intention to do so is clearly manifested. In my opinion, such an intention cannot be discerned from the provisions of the Act.

38 For the reasons discussed, in my opinion a sentencing court is required to take into account the additional penalty calculated in accordance with s66(1) of the Act in arriving at a decision as to the appropriate penalty to be imposed for the particular offence of which the offender has been convicted. This requires the court, in the usual way, to address the relevant principles of sentencing. In the context of the fisheries and like legislation, however, the observations of Dr Bray in Walker v Eves must be borne in mind. Although the total penalty may appear very substantial and even Draconian, such a consequence is the result of the deliberate policy of Parliament expressed in s66 and similar provisions in which the deterrent aspect of punishment is paramount. As discussed later in these reasons, that policy should also be reflected in the approach taken by the courts to the exercise of its powers of amelioration to reduce the additional penalty below that which would ordinarily be calculated and imposed pursuant to s66(1).

39 As mentioned previously, in these circumstances the Crown concedes that its appeals cannot succeed. Implicit in this concession is a recognition that the total penalty imposed upon Stemberger of $8 563 cannot be regarded as manifestly inadequate. This gives rise to the question, however, of disparity between that total penalty imposed upon Stemberger and the total of $30 500 imposed upon Perkins.

40 The disparity arose because of the number of counts to which the respondents pleaded guilty. Perkins pleaded guilty to 18 counts of selling fish to Stemberger. Although Stemberger acknowledged being involved in that course of conduct comprising the 18 counts, the prosecution accepted his pleas to three counts only and withdrew the remainder relating to purchases from Perkins. For the purposes of s66(1), therefore, there was a vast difference between the wholesale value of the fish involved in the 18 counts and that involved in the three counts. Those differences in wholesale values resulted in the disparity between the additional penalties.

41 It is not for this Court to question or criticise the conduct of the prosecution in requiring Perkins to plead guilty to 18 counts while accepting pleas to three of those counts from Stemberger and withdrawing the remaining 15. The Court is not aware of the reasons that led to the decision by the prosecution and it is not part of the Court's function to inquire as to those reasons. However, Stemberger acknowledged being involved in all the purchases from Perkins that were the subject of the 18 counts of selling fish to which Perkins pleaded guilty. Leaving aside the number of counts to which the respondents pleaded, therefore, there was little, if any, reason to distinguish between the respondents in respect of their total offending conduct. In these circumstances, there is a manifest unfairness to Perkins in the result that is directly attributable to the administrative decision of the prosecution. The disparity is such that it gives rise to a legitimate sense of grievance.

42 In my opinion, regardless of any other basis for interfering with the penalty imposed on Perkins, the disparity cannot be allowed to stand. It can be corrected by the application of powers available under the Sentencing Act which are discussed in the reasons that follow.

43 The appeal by Perkins contends that, acting in accordance with s13 of the Sentencing Act, the Magistrate should have found Perkins would be unable to comply with the order for payment or that compliance with the order would unduly prejudice the welfare of his dependants. This raises the question as to whether s13 has any role to play when the additional penalty is being imposed as required by s66 of the Act. If s13 is applicable, the Crown again properly conceded the additional pecuniary penalty imposed upon Perkins should have been reduced.

44 Section 13 of the Sentencing Act is in the following terms:

"Order for sum 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 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).

(2) The court is not obliged to inform itself as to the defendant's means, but it should consider any evidence on the subject that the defendant or the prosecutor has placed before it."

45 The expression "pecuniary sum" is defined in s3(1) of the Sentencing Act in such wide terms that it would encompass the penalty payable by virtue of s66 of the Act. The definition not only includes a fine, but also "... any other amount payable pursuant to an order or direction of a court...".

46 Section 13 of the Sentencing Act is a general provision and its applicability to a section such as s66 must be considered in conjunction with the special provisions in ss17 and 18 of the Sentencing Act, both of which are directed to penalty provisions in special Acts. In addition, both respondents seek to rely upon the application of ss17 and 18. Those sections are as follows:

17. Where a special Act fixes a minimum penalty in respect of an offence and the court, having regard to -

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

is of the opinion that good reason exists for reducing the penalty below the minimum, the court may so reduce the penalty.

18. Where, 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 by the special Act, the court may sentence the defendant as follows:

(a) where the special Act prescribes a sentence of imprisonment only for the offence, the court may instead impose -

(iii) both a fine and a sentence of community service; or

(b) where the special Act prescribes a sentence of both imprisonment and a fine for the offence, the court may instead impose-

(iv) both a fine and a sentence of community service; or

(c) where the special Act prescribes a sentence of imprisonment or a fine in the alternative for the offence, the court may instead impose-

(ii) both a fine and a sentence of community service; or

(d) where the special Act prescribes a fine only for the offence, the court may instead impose a sentence of community service."

47 The Act is obviously a special Act for the purposes of ss17 and 18. That expression is defined in s3(1) of the Sentencing Act to mean "...an Act, regulation, rule, by-law or other legislative instrument that creates an offence or prescribes a penalty for an offence;".

48 Section 17 has been applied by Judges of this Court to reduce the additional penalty otherwise payable pursuant to s66 of the Act in Glover v Haseldine (1990) 158 LSJS 271, Glover v Romanowcyz (1991) 55 SASR 524 and Feast v Hemming (1993) 169 LSJS 135. Acknowledging the weight of authority against him, counsel for the Crown nevertheless submitted that s17 of the Sentencing Act was not applicable. He suggested the point had not been argued in those authorities.

49 The Crown submitted that the authorities were in error because s17 is concerned with those provisions in Acts under which penalties are fixed by the application of the general principles of sentencing and not with provisions that fix an additional penalty without regard to those general principles. Hence it was said that as s17 is concerned with a different purpose from s66, it has no application to s66. In addition, counsel submitted that the additional penalty prescribed by s66 cannot be regarded as a "minimum penalty" for the purposes of s17 as there is no range of penalty under s66.

50 The clear purpose of provisions such as s17 of the Sentencing Act is to provide for amelioration of any injustice arising from minimum pecuniary penalties in special Acts such as the Act now under consideration (Glover v Romanowcyz at p528). That purpose would be substantially impaired if s17 was not applicable to s66 of the Act or similar provisions. In addition, applying the ordinary and natural meaning of the words in s17, in my view it is clear that it applies to s66. Section 17 is concerned with special Acts that fix minimum penalties in respect of offences under such Acts. Section 66 imposes an additional penalty for offences under the Act and, by reason of the method of calculation, a minimum additional penalty is created (cf Ferraro v Glover (No. 2) (1989) 45 A Crim R 95 at 98).

51 In my opinion, there is no basis in principle or in the wording and context of s17 of the Sentencing Act for restricting its area of operation in the manner suggested by the Crown. Accordingly, in my opinion s17 empowers a court to reduce the penalty fixed and otherwise payable pursuant to s66(1) of the Act if, having regard to the matters set out in s17, the court is of the opinion that good reason exists for reducing the penalty below the minimum otherwise payable. It remains to be considered, however, whether the circumstances justify a finding in respect of either respondent that such good reason exists.

52 In determining whether good reason exists, the approach to be taken is the same as that required previously under s4(1) of the Offenders Probation Act 1913. That approach was explained by King CJ in Jones v Morley (1981) 29 SASR 57 at 63 as follows:

"Two conditions must exist for the discretionary powers conferred by the section to arise. First, there must be some mitigating aspect arising from one or more of the matters mentioned in the section, which would "provide a sufficient ground for a reasonable man to hold that it would be expedient to extend the leniency which the statute permits": Cobiac v Liddy, ((1969) [1969] HCA 26; 119 CLR 257) per Windeyer J at p276. Second, the court must actually form the opinion required by the section, namely that having regard to one or more of the matters mentioned in the section it is expedient to exercise the powers conferred by the section: R v Wilton ((1981) 28 SASR 362.)"

53 Section 17 requires the court to form the opinion that "good reason" exists for reducing the penalty rather than the test posed by the Offenders Probation Act that it was "expedient" to exercise the powers conferred by that Act. However, the two step process remains which requires that the court first consider the threshold question as to whether, having regard to the matters set out in s17(a), (b) and (c), it is appropriate to consider the offender as a candidate for the operation of the section in accordance with the test explained in Jones v Morley. Once that condition is satisfied, the court must apply its mind to determining whether good reason exists to exercise the power conferred by s17.

54 In considering the application of a provision such as s17 to s66 of the Fisheries Act and similar legislation, the nature and purposes of the legislation to which s17 is being applied must be taken into account. In Liddy v Cobiac (1969) SASR 6, Bray CJ considered the application of s4 of the Offenders Probation Act to s47 of the Road Traffic Act 1961which related to minimum penalties. Speaking generally as to the approach to be taken to s4, his Honour said (p10):

"Section 4 of the Offenders Probation Act is a merciful provision which, in my view, has prominently in view among its objects, though not of course exclusively, the reformation of the offender. Its application, it seems to me, generally speaking, should be less ready when the charge relates to a breach of social legislation, where the preventative and deterrent aspects of punishment assume greater prominence, though I am far from denying that there are cases of this kind to which the section can properly be applied. I think, however, that it is only in rare and exceptional cases that its provisions can properly be invoked in favour of a defendant found guilty of driving under the influence".

55 The more restrictive approach to the application of the Offenders Probation Act where social legislation is involved was applied to the Act now under consideration by O'Loughlin J in Ly v Glover (1989) 150 LSJS 449. His Honour reached the view that the totality of the personal circumstances of the offender and the circumstances under which the offence was committed established that the matter was "very rare and very exceptional" and, therefore, justified the application of the Offenders Probation Act. His Honour set aside the additional penalty and in lieu thereof, without recording a conviction, discharged the offender upon his entry into a bond to be of good behaviour for a period of twelve months and appear for sentence if called upon.

56 In referring to the matter as rare and exceptional, O'Loughlin J may have had in mind the passage cited from the judgment of Bray CJ in Liddy v Cobiac where his Honour concluded with the observation that it would be only in rare and exceptional cases that the provisions of the Offenders Probation Act could properly be invoked in favour of a defendant found guilty of driving under the influence. Subsequently, in Kowald v Hoile (1975) 12 SASR 101, Bright J doubted that such a conclusion could stand following the decision of the High Court in that matter. His Honour pointed out that the factors the High Court regarded as justifying the application of s4 of the Offenders Probation Act could not properly be classified as rare and exceptional and concluded that facts of "relatively slight weight and materiality will vest a discretion " to exercise the powers in s4 of that Act.

57 I doubt that Bray CJ intended that his remarks should be interpreted as meaning that the power should be exercised only in rare and exceptional circumstances whenever it was being applied to provisions contained in social legislation. His Honour was specifically addressing the offence of driving under the influence. In addition, I respectfully agree with the observations of Bright J which demonstrate how the approach of Bray CJ should be viewed as qualified by the manner in which the provision was applied by the High Court on appeal in that case. In my opinion, however, the observation of Bray CJ remains correct that courts should be less ready to apply such provisions to breaches of social legislation where the preventative and deterrent aspects of punishment assume greater prominence (cf Piva v Brinkworth (1992) 59 SASR 92).

58 The appeal by Perkins raises questions in connection with the application of ss13 and 17 of the Sentencing Act that do not apply to Stemberger. It is convenient, therefore, to deal first with Stemberger's case that s17 or s18 should be applied in order to reduce the additional penalty imposed upon him.

59 In my opinion, even adopting the most favourable interpretation of s17 from the perspective of Stemberger, good reason does not exist for reducing the additional penalty imposed.

60 It is doubtful whether Stemberger's circumstances satisfy the threshold test. There is nothing in his age, physical or mental condition or antecedents to qualify him as a candidate for the exercise of the powers. Counsel referred to his prior good character and lack of previous convictions. However, while the absence of prior convictions was relevant, in view of the period of time over which the offending occurred it was of less weight than would be given in a case of a first offender who succumbed on one isolated occasion (R v Cameron and Simounds (1993) 171 LSJS 305 at 306 and R v Phelan (1993) 66 A Crim R 446 at 448). As to the criteria in s17(b) and (c), the offence was not trifling and there were no other extenuating circumstances.

61 Even if it could be said that Stemberger passed the threshold test, in deciding whether to exercise the discretion, the matters listed in s17 and other relevant factors must be viewed against the background of the totality of the circumstances relating to the offence and the offender (Jones v Morley per King CJ at p64). While there were various matters that could properly be called in aid by way of mitigation such as Stemberger's plea of guilty, prior good character, cooperation with investigating officers and the lack of any attempt to disguise the purchases in his records, in my view the offending cannot be treated as in the lower category. A large quantity of fish was involved and the offending occurred over a lengthy period of time. There is nothing to suggest that it would not have continued but for the intervention of fisheries officers. While the commercial gain may not have been large, the illegal conduct was clearly designed to produce commercial benefit for Stemberger. He was a man of great experience and standing in the fishing industry who might have been expected to set an appropriate example.

62 In my opinion, even if Stemberger's case met some of the criteria specified in s17 of the Sentencing Act and the threshold test is satisfied, good reason did not exist for reducing the additional penalty payable pursuant to s66 of the Act. Similarly, if s18 applied (which is discussed later in these reasons), good reason would not exist under that section. Stemberger does not seek to rely on s13 of the Sentencing Act.

63 In my opinion the total pecuniary penalty of $8 563, comprised of the fine of $600 and the additional penalty of $7 963, was not manifestly excessive. In those circumstances any appeal by Stemberger has no prospects of success and I refuse his application to extend the time within which to appeal.

64 I turn to the application of s17 to the circumstances of the respondent Perkins. While counsel referred to a number of matters in an endeavour to bring Perkins within the purview of s17, in essence he relied upon antecedents and "other extenuating circumstances" as establishing that the respondent passed the threshold test.

65 As to antecedents, counsel relied upon the respondent's extremely poor financial circumstances and his need to support his de facto wife and two children aged nine and seven years. As mentioned, the respondent and his dependent family live on a small property situated just outside of Yorketown on Yorke Peninsula where he attempts to operate a free range poultry business. The family lives frugally and is just able to cover expenses. They have no savings.

66 In Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257, the majority of the High Court doubted whether the fact that the offender had to care for his sister who was 87 years of age and lived with him was relevant either on the question of character or antecedents (p265). Windeyer J, while suggesting the position of the aged sister was perhaps a matter which meant more to the expediency of not sending the offender to gaol and thus leaving her uncared for, added (p276):

"But I see no reason for excluding from his "antecedents" the fact that he was living with and caring for his sister, a woman of eighty-six years."

67 Windeyer J accepted that the word "antecedents" possessed a very wide meaning and expressed the view that, as used in s4(1) of the Offenders Probation Act, it refers primarily to the offender's previous history and past record. He said he could not see why the offender's good behaviour to his sister should not count in his favour among his antecedents.

68 In Jones v Morley, King CJ addressed the question as to the relevance of the predicament of persons dependent upon the offender in the following passage (pp63-64):

"A question arises in the present case as to whether the predicament of a relative or other person, who is in some way dependent upon the offender, which would result from the imprisonment of the offender is a relevant consideration as part of the offender's antecedents. The word "antecedents" is "as wide as can be conceived"; R v Vallett ([1951] 1 All E.R. 231), per Lord Goddard C.J. at p.232. It is certainly wide enough to include all aspects, favourable and unfavourable, of an offender's background, past life, personal, family, social, employment and vocational circumstances, and of his current way of life and its inter-action with the lives and welfare of others. The hardship caused to others by a sentence of imprisonment, however, is not generally (although it may be in exceptional cases: Reg. v Wring ([1972] Crim. L.R. 387)) a relevant consideration for the sentencing judge (Reg. v Wirth ((1976) 14 S.A.S.R. 291), and I do not think that even the wide term "antecedents" can comprehend the predicament of a person other than the offender if it is considered precisely as the impact of the contemplated sentence on the other person: Cobiac v Liddy ((1969) [1969] HCA 26; 119 C.L.R. 257), per Barwick C.J., Kitto J. and Owen J at p.265, per Windeyer J. at p.276 and Liddy v Cobiac ([1969] S.A.S.R. 6), per Bray C.J. at p.11. Nevertheless there are matters arising out of the dependency of the other person which may form part of the offender's antecedents. He is entitled to credit for the self-sacrifice and unselfishness involved in his care for another. The domestic background is undoubtedly part of the antecedents. The distress which he will experience in leaving the dependent person uncared for is also to be considered: Cobiac v Liddy ((1969) [1969] HCA 26; 119 C.L.R. 257), at p.265. Although not part of the offender's antecedents, the impact of imprisonment on the dependent person has a bearing on the expediency of sending the offender to prison."

69 In both Cobiac v Liddy and Jones v Morley the offender was able to call in aid a special case of self-sacrifice and unselfishness involved in caring for an aged person. It was in that context that King CJ regarded the domestic background as part of the antecedents. Bearing in mind the width of the expression, however, and the remarks of Windeyer J to which I have referred, in my opinion the word as used in s17 of the Sentencing Act encompasses the history of the offender including that person's personal circumstances. I am inclined to the view that the domestic circumstances of Perkins, including the financial position of the family, would be sufficient to activate consideration of whether there is good reason for reducing the additional penalty below the minimum. In the light of the decision I have made with respect to the application of s13 of the Sentencing Act, however, it is not necessary to finally decide this issue.

70 For the same reason, it is not necessary for me to decide whether the poor financial circumstances of the respondent amount to "any other extenuating circumstances" for the purposes of s17(c). In view of the argument addressed to this issue, however, it is appropriate to briefly examine some of the relevant authorities as to the meaning of that expression as used in s17(c).

71 The expression was considered in the context of s4 of the Offenders Probation Act by Matheson J in Beavan v Rankine (1983) 36 SASR 120. In that case it was argued that in imposing a sentence of imprisonment the Magistrate had misdirected himself as to the matters that could be taken into account pursuant to s4(2a) of the Offenders Probation Act 1913. In particular it was said that financial hardship came within the expression "any other extenuating circumstances" as used in s4(2a). Relying on the meaning of "extenuate" and "extenuating" given in The Shorter Oxford English Dictionary, the Crown contended that the expression was intended to be restricted to circumstances that lessened guilt. The Crown argued that reparation of the financial loss caused by offending would amount to such an extenuating circumstance, as would a "very substantial show of remorse" by an offender given in an endeavour to undo the harm caused by an offence of assault. Although his Honour said that his mind had vacillated on the question, he ultimately agreed with the Crown examples and position and held that "extenuating circumstances" must be such as to lessen guilt.

72 While I can understand the reasoning followed by his Honour, I am troubled by his conclusion. Section 4 of the Offenders Probation Act gave certain powers to the court of summary jurisdiction related to the imposition of convictions and suspension of sentences. Subparagraphs (c) of subsections (1) and (2) of s4 both referred to "the extenuating circumstances under which the offence was committed". Section 4(2a) was as follows:

"(2a) Where a person has been convicted of an offence punishable by imprisonment, and the court is of the opinion that, having regard to

(a) the character, antecedents, age, health or mental condition of the person convicted;

it is expedient to exercise the powers conferred upon the court by this subsection, the court may impose a sentence of imprisonment upon the convicted person but suspend the sentence upon condition ".

73 The wording in s4 (2a)(c) differed significantly from s4(1)(c) and s4(2)(c). In subss(1) and (2), the extenuating circumstances were specifically limited to the circumstances under which the offence was committed. The words "under which the offence was committed" did not appear in subs(2a). It must be assumed that Parliament deliberately omitted those words.

74 The issue has been the subject of subsequent decisions and discussion by a number of single judges of this Court. The decision in Beavan v Rankine was apparently not brought to the attention of Legoe J in Davies v White [1991] SASC 2817; (1991) 56 SASR 30, where his Honour applied s17 of the Sentencing Act to reduce a minimum fine prescribed by the Road Traffic Act for an overloading offence. The appellant's inability to pay the total amount was taken into account and there were no other circumstances that could have enabled the Court to find that good reason existed to reduce the minimum fine pursuant to s17. As the imposition of a fine would inevitably have resulted in the appellant having to serve a default period of 142 days' imprisonment, and bearing in mind that the appellant was running a business with financial commitments, his Honour concluded that extenuating circumstances existed which established good reason for reducing the penalty below the minimum.

75 The decision in Davies v White was not brought to the attention of Mullighan J in Caldow & Shannon v Hemming (1991) 55 A Crim R 449. Relying on a decision of Matheson J in Beavan v Rankine, his Honour held that the "extenuating circumstances" must have a bearing upon the circumstances of the offences or lessen guilt and that the financial consequences of penalty cannot, for the purposes of this section, amount to extenuating circumstances.

76 In Kent v Police ((1998) 72 SASR 205), Perry J applied the approach in Caldow v Hemming in considering minimum penalties applicable under the Road Traffic Act for alcohol-related driving offences. The appellant had pleaded guilty to charges of driving under the influence and refusing to submit to a breath analysis. His Honour referred to the importance of encouraging persons to plead guilty to the substantive offence of driving under the influence where those persons had refused to submit to the breath analysis which might have afforded evidence of driving under the influence. In that context, his Honour considered it was important to avoid the double penalty and he reduced the minimum penalty payable for the offence of refusing to submit to a breath analysis. As to the extenuating circumstances, accepting that they must be such as to "lessen the guilt", his Honour relied upon the fact that the appellant had pleaded guilty to the charge of driving under the influence and had been fined a substantial amount.

77 In Measey v Police (unreported judgment S6318 delivered 7 August 1997), King AJ was faced with the same situation that subsequently confronted Perry J in Kent v Police. His Honour applied s17, but did not discuss what amounted to extenuating circumstances. In his Honour's view, the minimum penalties provided for the offence of refusing to take the breath test were designed to ensure that offenders do not escape the proper penalty for drink driving. He expressed the opinion that those minimum penalties were not really appropriate where the offender had been convicted of the drink-driving offence and had suffered the punishment due for that offence. In those circumstances he regarded the punishment for the major offence as a good reason for reducing the minimum penalty applicable for refusing to take the breath test.

78 It does not appear that any prior decision was drawn to the attention of King AJ in Measey. Similarly, it does not appear that the decision of Legoe J in Davies v White was brought to the attention of Perry J in Kent.

79 This issue was touched upon by Lander J in Button v Police (1997) 71 SASR 258 where his Honour referred to Caldow v Hemming. As his Honour had not heard argument on s17 he did not express an opinion as to whether or not the financial circumstances of an offender could amount to extenuating circumstances for the purpose of s17.

80 I am inclined to the view that Parliament did not intend to restrict the expression "any other extenuating circumstances" in s17(c) of the Sentencing Act to matters that can be properly characterised as lessening guilt. The word "other" suggests Parliament viewed the matters in s17(a) and (b) as "extenuating circumstances". Some of the matters in s17(a) may not lessen guilt. As mentioned, however, in view of the decision I have reached with respect to the application of s13 of the Sentencing Act it is not necessary for me to arrive at a final decision on this issue.

81 It is also unnecessary for me to decide whether s18 applies to the additional penalty imposed pursuant to s66 of the Act. Section 18(d) provides that where the Act prescribes "a fine only for the offence", the court may instead impose a sentence of community service. On one view of the expression "a fine only", it cannot apply to the "additional penalty" prescribed by s66. In Glover v Haseldine, in considering s16 of the Sentencing Act which at that time referred to the circumstance where a court intended to "impose a fine (but no other penalty)", his Honour said (p275):

"The payment to be ordered under s66 is in short not a fine, but an additional penalty on conviction, and the power in s16 of the Sentencing Act to impose a fine without conviction is only available when the offence carries no other penalty in addition to the fine".

82 That decision and reasoning was approved by White J in Glover v Romanowcyz (p527). However, in Clark v Glover (1992) 58 SASR 571 at 577, Perry J pointed out that the words "but no other penalty" were deleted from s16 in 1991 and expressed the view that those decisions must now be regarded as open to question in so far as they might be thought to govern the operation of s16 in its present terms, vis-a-vis s66.

83 I share the reservations expressed by Perry J. Consideration of the context and total content of s18 discloses a clear intention to provide for alternative penalties on a sliding scale depending upon whether imprisonment, community service or a pecuniary penalty by way of a fine is provided by the principal section. There is considerable force in the proposition that when s18 speaks of the Act prescribing "a fine only for the offence", Parliament was addressing those offences for which a pecuniary penalty only is imposed and was not intending to restrict the word "fine" in a manner that would exclude the additional pecuniary penalty required by s66. In addition, I note that if the additional penalty pursuant to s66 is not a "fine" for the purposes of the Sentencing Act, s33 of the Sentencing Act which deals with fixing time for payment where the court imposes a "fine", would not apply.

84 If it was clear that s18 was capable of application to the additional pecuniary sum fixed under s66 of the Act, I would have had no hesitation in finding that good reason exists for departing from the penalty provided by s66 and in exercising the power given by s18 to impose a sentence of community service. However, this point was not argued in full and I did not have the benefit of submissions concerning the authorities to which I have referred. In addition, for the reasons that follow I am of the opinion that s13 of the Sentencing Act applies to s66 of the Act and that the personal circumstances of Perkins and his dependants are such that s13 of the Sentencing Act should be applied. It is inappropriate, therefore, for me to reach a final decision as to the application of s18 of the Sentencing Act to s66.

85 Section 13 of the Sentencing Act was applied by Lander J in Button v Police to circumstances where the appellant had no capacity to pay the fines imposed by the Magistrate, including a fine under s47E of the Road Traffic Act which prescribed a minimum of $1 500 for the particular offence. His Honour observed that the fine of $1 500 was beyond the means of the appellant and it would be contrary to s13 of the Sentencing Act to impose such a fine knowing it could not be met. He applied s13 and, in respect of the breach of s47E, pursuant to s18 of the Sentencing Act directed that the appellant perform community service.

86 In submitting that s13 has no application to the imposition of an additional penalty pursuant to s66 of the Act, the Crown presented an argument similar to that relied upon in opposing the application of s17 to s66. In essence, the Crown submitted that the rationale underpinning s13 is concerned with ensuring that the impact of a financial penalty is proportionate to the gravity of the offending, whereas the additional penalty contained in s66 is not determined by the court assessing the gravity of the offence. In those circumstances it was said that s13 of the Sentencing Act cannot apply.

87 I have already indicated my view that the gravity of the offending is necessarily an underlying feature of the determination of the penalty pursuant to s66. The Crown submission also faces two other obvious difficulties. First, and most obviously, is the ordinary and natural meaning of the words in s13 and the width of their operation. That section directs that a court must not order an offender "to pay a pecuniary sum" in the circumstances specified in s13. As previously mentioned, the words "pecuniary sum" are very broadly defined in s3 of the Sentencing Act and include a fine and any other amount payable pursuant to an order or direction of a court. There is no reason in principle why those words should not apply to an additional penalty imposed by a court pursuant to s66 of the Act.

88 In my view, the second reason for rejecting the Crown contention concerns the purpose of s13. When the Bill was introduced before the Legislative Council in December 1987, the Attorney-General referred to a number of studies which he said had "... highlighted concerns in the administration of sentencing options, particularly in relation to the use of imprisonment for persons who are in default of payment of fines." (Hansard, 2 December 1987, p2365). As to s13 the Attorney-General said:

"The Bill before you does not empower the courts to reduce or increase a fine according to the defendant's means; the severity and circumstances of the offence must remain the principal yardstick. However, having determined what would be an appropriate fine, the courts must then look at the evidence placed before it (if any) as to the defendant's means and the probable effect the fine would have on his or her family. If it then appears that the defendant could not pay the fine or the family's welfare would be prejudiced by payment of the fine, the court must find an alternative sentence."

"These broad considerations can be mustered in favour of this government's preferred approach to imprisonment generally and imprisonment, for default in payment of fines, in particular. Too often, cases arise under the present law which can give cause for disquiet. There is a belief, for example, that the law may only be incarcerating an offender for his or her poverty, his or her lack of means. There is a strong moral justification for many of the reforms sought by this Bill;"

89 In my opinion, Parliament was concerned with a wider reasoning than simply endeavouring to ensure that the impact of a financial penalty is proportionate to the gravity of the offending. Parliament was concerned about what it perceived was the undesirable consequence of offenders who are unable to pay fines being incarcerated. It was also concerned about the adverse impact that the imposition of a fine may have upon the welfare of the dependants of the offender. Parliament clearly had in mind the application of s13 to the widest possible circumstances in which a court orders payment of a pecuniary sum.

90 If s13 of the Sentencing Act is applied to provisions such as s66 of the Act, a tension will clearly exist between the policy evident in social legislation containing provisions such as s66 which requires the imposition of severe penalties to act as a deterrent and the policy of amelioration apparent in the enactment of s13 of the Sentencing Act. It is not unusual for such tensions to exist between different aspects of public policy or policies evident in different pieces of legislation and it is for the courts to determine which policy Parliament intended should prevail. In my view, it is clear that Parliament intended the provisions of the Sentencing Act, including sections 13, 17 and 18, to prevail in the circumstances now under consideration.

91 In my opinion, therefore, s13 is applicable to the circumstances of this matter. It applies when the court is considering both the quantum of a fine in respect of the offences and the imposition of an additional penalty calculated in accordance with s66(1) of the Act. If the court is satisfied that the respondent would be unable to comply with the order for payment of the amount calculated pursuant to s66, or that compliance with such an order would unduly prejudice the welfare of the dependants of the respondent, the court must not make an order requiring the respondent to pay such a sum.

92 In July 1997 when Lander J decided Button v Police, if s13 applied to prevent the imposition of a minimum penalty, the section did not expressly empower the court to order payment of a lesser amount. Section 13 was subsequently amended to provide that the court may, if it thinks fit, order payment of a lesser amount. (Statutes Amendment (Attorney-General's Portfolio) Act 1997 s4 and see Hansard, Legislative Council, 20 March 1997 p1297).

93 In my opinion, therefore, the sentencing discretion miscarried as the Magistrate erred in not considering and applying s13 of the Sentencing Act. As mentioned previously, in those circumstances the Crown has properly conceded that the pecuniary penalty imposed upon Perkins pursuant to s66 should have been reduced.

94 The total sentencing package must be reconsidered. Inevitably, the restriction imposed by s13 will prevent the imposition of a monetary penalty that would otherwise be required in order to adequately reflect the gravity of the offending. In monetary terms, it will also have the unavoidable consequence of creating a degree of disparity between the amounts to be paid by the respondents. In all the circumstances, however, while the disparity will exist in monetary terms, by the use of other sentencing powers the total effect of the sentence upon the respondents will not be markedly disparate.

95 While the issue as to whether s18 of the Sentencing Act applies to the additional penalty is unresolved, there is no doubt that s18 is capable of application to the fine prescribed by s44 of the Act. In my opinion, good reason exists to exercise the power conferred by s18(d) to impose a sentence of community service instead of a fine.

96 The Crown appeal with respect to Perkins is dismissed. The appeal by Perkins is allowed and both the fine of $500 and the additional penalty of $30 000 are set aside. The convictions of the various offences to which Perkins pleaded guilty are confirmed. I exercise the power in s18A to impose one penalty for all of those offences. Pursuant to s18 of the Sentencing Act, I order that the appellant perform 200 hours of community service within a period of 18 months.

97 As to the additional penalty required by s66 of the Act, in accordance with the direction contained in s13 of the Sentencing Act, I fix an additional penalty of $500. I allow one year to pay.

98 The Crown appeal with respect to Stemberger is dismissed. I refuse Stemberger's application to extend the time within which to appeal.

Criminal Law (Sentencing) Act 1988

Fisheries (General) Regulations 1984

National Parks and Wildlife Act 1972

Crimes (Confiscation) Act 1986

Offenders Probation Act 1913

Road Traffic Act 1961

(Confiscation of Profits) Act 1986

(Statutes Amendment (Attorney-General's Portfolio) Act 1997

National Parks and Wildlife Act 1972

Offenders Probation Act 1913

(Confiscation of Profits) Act 1986

Crimes (Confiscation) Act 1986

(Statutes Amendment (Attorney-General's Portfolio) Act 1997

Criminal Law (Sentencing) Act 1988

Fisheries (General) Regulations 1984

Road Traffic Act 1961

HEMMING v PERKINS; HEMMING v STEMBERGER No. SCGRG-99-253, SCGRG-99-254 Judgment No. S212 [1999] SASC 212

At a glance

Court

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Judgment (145 paragraphs)

HEMMING v PERKINS; HEMMING v STEMBERGER No. SCGRG-99-253, SCGRG-99-254 Judgment No. S212 [1999] SASC 212 (3 June 1999)

Legislation Cited (18)

Cases Cited (16)