Supreme Court rejects appeal of five abalone poachers who claimed native title defence
FIVE Aboriginal men found guilty of abalone poaching despite claiming they had taken 370 of them under native title rights to feed their families have failed to have their convictions overturned by the Supreme Court.
- Five Aboriginal men found guilty for abalone poaching despite native title defence
- Men claimed abalone poaching was to feed their families under native title
FIVE Aboriginal men found guilty of abalone poaching despite claiming they had taken 370 of them under native title rights to feed their families have failed to have their convictions overturned by the Supreme Court.
But their sentences have been cut because they were found to be manifestly excessive and because of the length of time — four years and eight months — it took for the case to be resolved.
Supreme Court Justice Kevin Nicholson said it was “of general concern’’ it had taken so long for the charges against the men to be finalised and all had remained on bail while awaiting resolution.
“….some four years and eight months after committing the offence, none of the appellants has spent any time in custody,’’ Justice Nicholson states in his judgment.
The five men were caught with the abalone at Point Pearce, near Port Victoria on Yorke Peninsula, on December 30, 2011. Of the 370 abalone, 188 were undersized.
In Adelaide Magistrates Court, the prosecution alleged the five men were involved in a joint criminal enterprise and possessed the abalone for sale.
However, the five men maintained a defence their possession of the abalone was not unlawful as they were exercising their native title rights to fish for them and planned to provide them as food to their respective families within the Point Pearce Aboriginal community.
On September 10 last year, Magistrate Cathy Deland convicted the five men. While she found the five were Nurungga people with native title rights, she was not satisfied they did not have the abalone for a commercial purpose and as such, their defence under Section 211 of the Native Title Act was not available to them.
On December 2, Magistrate Deland sentenced the five men each to six months in prison. The sentences of Phillip Dudley and Greg Wanganeen were suspended, but Scott O’Loughlin, Edgar Wanganeen and Robin Wanganeen were ordered to be jailed.
Each of the five were also permanently banned from fishing for abalone. They subsequently appealed both their convictions and sentence.
Justice Nicholson upheld the convictions, but set aside the sentences because they were excessive and the delay.
In re-sentencing the men, he said Dudley and Greg Wanganeen should be treated more leniently than the other three and sentenced them to three months jail, which he then suspended.
He re-sentenced Robin Wanganeen to four months jail and Edgar Wanganeen to five months jail and Scott O’Loughlin to six months jail, but suspended each of their terms.
“I am satisfied that the imposition of suspended prison sentences, even of relatively short duration, and of the additional penalties in the amounts that I have ordered will have a significant personal and general deterrent effect with respect to all appellants,’’ Justice Nicholson said.
“In the circumstances of this matter, it would be quite counter-productive to order the imprisonment of any of the five appellants some four and a half years or more after the offences were committed.’’
Justice Nicholson declined to ban all five for fishing for abalone for life, but did prohibit Scott O’Loughlin from taking abalone for 10 years because of prior offending that involved taking a large quantity of abalone several months prior to this incident.
Each of the five men was also fined up to $8000 under the Fisheries Act and ordered to pay court costs.