Wood v Gunthorpe[1998] QDC 192

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REASONS FOR JUDGMENT - McGILL D.C.J.

Delivered the Twenty-fourth day of July, 1998

These three appeals were brought by the appellant pursuant to s. 222 of the Justices Act 1886. They were heard on the same day but were argued separately, and involve separate issues, although two of the appeals arise out of charges laid as a consequence of one incident, which charges were heard together.

On 29 July, 1997 the appellant appeared before the Magistrates Court at Cleveland charged with two offences, each on complaint. He was charged that on 10 May, 1996 on Moreton Bay he, being involved as the master in the operation of a ship namely an aluminium runabout powered by a 75 horsepower outboard motor, caused the said ship to be operated unsafely, in that a marine incident was caused namely a collision with another vessel. He pleaded not guilty to this offence, but was convicted and sentenced to imprisonment for a period of four months, the whole term of imprisonment being suspended with an operational period of three years from 29 July 1997. The offence is created by s. 43(1) of the Transport Operations (Marine Safety) Act 1994, which imposes a maximum penalty of 500 penalty units or imprisonment for one year.

He was also charged that on 10 May, 1996 on Moreton Bay he being the owner and master of a registered commercial ship, namely an aluminium runabout powered by a 75 horsepower outboard motor registered no. FWQT, did fail to have the ship registration number displayed on the ship in accordance with the regulation. Again he pleaded not guilty but was convicted and fined $600 and ordered to pay $110 costs of court and witness expenses of $215, in default of payment to be imprisoned for 28 days and allowed 32 weeks to pay. The offence is created by s. 49(1) of the Transport Operations (Marine Safety) Regulation 1995, which stipulates a maximum penalty of 50 penalty units.

On 19 December, 1997 the appellant appeared before the Magistrates Court at Wynnum charged that on 14 August 1997 at Cleveland Point in Moreton Bay he used fishing apparatus namely a crab pot unlawfully by failing to have a float attached to it when it was not fixed to something while it was in use, in contravention of s. 8 of Schedule 11 of the Fishing Regulation 1995. He pleaded not guilty but was convicted and fined the sum of $200, and ordered to pay $56 costs of court, in default of payment to be imprisoned for five days. He was allowed three months to pay. The crab pot was ordered to be forfeited pursuant to s. 177 of the Fisheries Act 1994. Regulation 8 in Schedule 11 of the Fisheries Regulation 1995 provides in sub-section 2 that “if the crab apparatus is not fixed to something while it is in use the apparatus must have a light coloured float attached to it”. By s. 84(1) of the Fisheries Act 1994 a person must not unlawfully use fishing apparatus; the maximum penalty provided is 300 penalty units.

The appellant conducted his own appeal, as he had conducted his own defence in the Magistrates Court. It is convenient to deal with the three matters in the order in which they were argued, namely appeal 224/98, the offence under s. 84 of the Fisheries Act 1994 - failing to have a float on the crab pot, appeal 3764/97, the offence under s. 49(1) of the Transport Operations (Marine Safety) Regulation 1995 - not displaying the registered number, and appeal 3767/97, the offence under s. 43(1) of the Transport Operations (Marine Safety) Act 1994 - unsafe operation of a ship.

Failure to attach float to crab pot

The offence created by s. 84(1) involves the use of fishing apparatus unlawfully. The relevant fishing apparatus was a crab pot, which is one of the items referred to expressly in the definition of “fishing apparatus” in s. 4 of the Act. The use was alleged to have been unlawful on the basis that it was used in a way which was contrary to the requirement of Regulation 8(2) of the Fishing Regulation 1995. Regulation 8 provided:

In order to constitute the offence therefore it was necessary for the prosecution to prove that the appellant had used a crab pot for the purpose of taking crabs which was not fixed to something while in use and which did not have a light coloured float of the required dimensions attached to it.

At trial there was evidence from two water police officers that they had observed from land the appellant dredge up a crab pot, empty it, rebait it and place it back in the water. They did not see any float attached to it. They then proceeded to the area where they dredged up the pot themselves and found that there was no float attached to it. They did not see any float in the area while they were there. There was an identifying tag on the crab pot.

The defendant claimed that he had attached a float to the line running between the crab pot and a brick used to anchor it, which must have become detached, possibly through the action of some marine creature. He said that it was set up in such a way that the float would have been under water, but obviously if the float became detached it would float to the surface unless something were holding it down, and could then be observed from a boat in the vicinity. He said that the reason for having the float under water was that he was concerned about the risk of losing his crab pot, having lost over 1,000 crab pots in the past.

The Magistrate referred to a tape recorded interview with the appellant on 15 August, 1997 during which there was no assertion that a float had been put on the crab pot, and there was one answer given by the appellant which suggests, I think rather obliquely, that he had not put a float on the crab pot at the relevant time.

If the Magistrate accepted the evidence of the police officers that there was no float on the crab pot when it was dredged up by them, as he did, the issue is whether the prosecution had succeeded in establishing beyond reasonable doubt that that was the state of the crab pot when it was placed by the appellant. There was no dispute that he was using the crab pot for the purpose of taking crabs and that at the relevant time it was not fixed to anything. It was of course attached to the house brick, but it was accepted by the appellant on the hearing of the appeal that this part of the regulation was concerned with a crab pot which was not attached to a jetty or boat or something of that nature, and that the crab pot did not become “fixed to something” merely by being anchored with a house brick. In those circumstances I will proceed on the basis that that is the correct approach, and confine myself to the one matter which was in issue, that is whether the prosecution had proved that the appellant had used it without a float attached. In effect, this is a question of whether the prosecution had excluded the possibility that there was a float attached at the time when the crab pot was placed in the water and it had subsequently become detached. The Magistrate could not convict unless he had no reasonable doubt that that did not occur. In view of the comments of the Magistrate in the course of his decision it is apparent that he was aware that that was the situation.

He accepted the police evidence that there was no float attached when the crab pot was retrieved and he rejected the evidence of the defendant when he said that there was a float attached (p. 4). He also accepted the police evidence that there was no float attached when the crab pot was placed back into the water. He expressed satisfaction of the matter beyond reasonable doubt and found the appellant guilty.

In my opinion on the evidence which was before him the Magistrate was entitled to make those findings. They obviously involve assessment of credibility, in respect of which the Magistrate has not been shown to be in error. The findings were open to him and there is no reason for me to interfere with those findings. It is not a matter for me to decide the question on the basis of the assertions of the appellant before me. It is a question of whether the decision of the Magistrate has been shown to be wrong, and in my opinion it has not.

One matter which was discussed in argument was the question of whether it was necessary for a float, in order to comply to Regulation 8(2), to be attached in such a way that it would float on the surface of the water. It must be said that the regulation does not expressly require the float to be attached in that way, but there is also the consideration that there is no obvious reason for requiring a float to be attached unless the float is able to float on the surface. The purpose of the regulation seems to be to require the location of a crab pot or other crab apparatus to be identifiable from the surface, and for the owner to be identifiable by reference to the commercial fishing boat marking, which must be on the float. Since the pot itself is required to be tagged under sub-section (1), it seems to me that the requirement that the float have the owner's primary commercial fishing boat marking on it must be to enable the crab pot to be identified from the surface.

By s. 4(2) not more than 50 crab pots, dillies or inverted dillies alone or in combination may be used at any time; I take it that that is the reference to the number per crab fisherman, rather than the total number in use in the fishery. It would obviously be difficult to police the number of pots being used by a particular fisherman if it were necessary for the authorities to dredge up crab pots individually; on the other hand, if it were simply a matter of keeping track of the floats, it would be much easier to police this restriction.

I think it follows that there is a logical reason for having a float floating on the surface which satisfies the requirements of s. 8 of Schedule 11, and little obvious advantage in having such a float which was submerged. This would be so particularly if the float were attached to the pot directly, so that the float was on the bottom. I think the intention is that there should be a float which floats and that the regulation is perhaps unfortunately drafted in that it does not make that clear.

The objectives of the Fisheries Act include ensuring fisheries resources are used in an ecologically sustainable way, and ensuring access to fisheries resources is fair: s. 3. The Acts Interpretation Act 1954 provides in s. 14A(1) that:

That would include the interpretation of a regulation: s. 7. On the other hand in section (2) of s. 14A it is provided that subsection (1) does not create or extend criminal liability. This is a reflection of the traditional approach to the construction of the penal statute, that all penal statutes are to be construed strictly, so that the thing charged as an offence is within the plain meaning of the words used: Richardson v. Austin (1911) 12 CLR 463 at 475 per O'Connor J and see p. 468 per Griffith C.J. Where the language remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: Beckwith v. The Queen (1976) 135 CLR 569 at 576 per Gibbs J., who however describes the rule as perhaps one of last resort.

In the circumstances, although I think it deprives the regulation of a good deal of its meaning and purpose, I think strictly speaking a person would comply with the regulation by having a float attached to the crab apparatus, even if the float did not float on the surface. That seems to be the basis upon which the Magistrate approached the matter. He concluded that there was no float at all attached to this pot.

The appellant explained in some detail the hazards associated with setting crab pots, and the risks of losing them, which appears to be a common occurrence. No doubt the risk of losing crab pots is increased if the regulation is complied with using a float which floats on the surface, because that will make it much easier for persons who are disposed to steal crab pots to locate them for that purpose. It is understandable therefore that persons such as the appellant should be reluctant to comply with the spirit of the regulation.

The appellant also asserted that the forfeiture of the crab pot was unjustified or unreasonable. Under s. 177 of the Fisheries Act 1994 “on the conviction of a person for an offence against this Act the Court may order the forfeiture to the authority of.....anything......used to commit the offence; [and] anything else the subject of the offence.” I think in the circumstances that this is wide enough to cover a crab pot which is used in a way which does not comply with s. 8 of Schedule 11 of the Fisheries Regulation 1995, so that there was a discretion on the part of the Magistrate to order the forfeiture of the pot. There is nothing in the legislation to provide any guidance as to how this discretion is to be exercised. The Magistrate in his remarks referred to the fact that the appellant was a professional fisherman and should know better and ordered that the crab pot be forfeited.

The appellant informed me that he made the crab pot himself, with materials costing about $15 and with about three-quarters of an hour of labour for each one. In these circumstances forfeiture of the pot is, objectively speaking, a less severe penalty than the fine of $200 which was also imposed for the offence, although in view of the number of crab pots which the appellant has lost over the years it is understandable that the loss of this additional pot would be particularly annoying to him. This was the first occasion on which he had been convicted of an offence under this provision, and I think that it would not have been surprising if an order for forfeiture had not been made, but I can only interfere with such an order if it appears that the Magistrate has proceeded on some erroneous basis in making it, or if the order is one which in the circumstances no reasonable Magistrate instructing himself properly as to the law would make. That test cannot be satisfied in the present case and there is in my opinion no basis upon which I can properly interfere with the order for forfeiture. The discretion is that of the Magistrate, and he was entitled to exercise it in the way he has.

It follows that appeal no. 224 of 1998 is unsuccessful and will be dismissed.

Failing to display registration number on the port side of the ship

Section 49 of the Transport Operations (Marine Safety) Regulation 1995 provides as follows:

The evidence was to the effect that on the day in question there was a registration number complying with the requirements of this regulation displayed on the starboard side of the ship. There had been formerly a registration number painted on the port bow, but according to the prosecution evidence, the number at that point was very faded and unreadable. This however was on the day after the day which was the subject of the charge. The appellant admitted before the Magistrate that the number was not displayed on the port bow on that day, but claimed that the number was displayed on the console. There was on the vessel a centre console steering station, something which would probably have been described as a wheelhouse if it had been somewhat more substantial and enclosed. The defendant's case was that he had had made up an aluminium number with raised letters which he was in the process of painting in a way which would last, but that process had not been completed so he did not want to expose it to the full force of sea water on the bow, but on the day in question it was displayed on the port side of the console.

It is not clear whether there was any evidence to contradict the proposition that the number was displayed on the console. The Magistrate in his findings said that having the number on the console “quite clearly breaches the regulation on that day”. His Worship's reasons are quite short, but it appears that he was drawing a distinction between the console and the “side of the ship”.

I think that the Magistrate here is treating the “side of the ship” as if the term meant the side of the hull. It is not clear to me that it does mean this. One can talk about the sides of the hull as the “sides” of the ship, but one can also speak of the sides of a vessel in the sense of everything in or on one half rather than the other half, as in port side and starboard side. The Oxford English Dictionary 2nd Edition Volume 13 at p. 420 has one of the meanings of the word “side” as “that part of the framework of a ship or boat extending from stem to stem between the gunwale and at the mainwale or the waterline”. The gunwale is itself defined as the top of the side of the hull; I was not able to find a definition of “mainwale”, but in Blackburn “The Illustrated Encyclopedia of Ships, Boats, Vessels and Other Waterbome Craft” (1978) there is a reference to the term “hard chine” as a type of hull design where there is a pronounced angle or ‘chine’ which divides the hull into an upper part identified as the side and the lower part identified as the bottom. It also defines gunwale as the plank which covers the heads of the side timbers of a ship. I suspect that the USS Constitution was given the nickname “Old Ironsides” because of arm our plating on its hull rather than on its superstructure although in those days a ship had little in the way of superstructure.

The term “side” is not defined as such in Blackburn's Encyclopedia or in De Kerchove “International Maritime Dictionary” (2nd Edition 1961), O'Sullivan “The Marine Encyclopedic Dictionary” (Second Edition 1988) or Ivamy “Dictionary of Shipping Law” (1984), which suggests that the term is not regarded in maritime circles as having any specific or recognised meaning. One feature which suggests that the Regulation was not intending to use the term “side” in the sense used in the Oxford English Dictionary is the requirement that the number be above the waterline when the ship is afloat, which would appear to be superfluous if that meaning were applied.

On the other hand, the requirement that a ship carry coloured lights on the port and starboard side, known as “side lights” under the Rules relating to collisions at sea clearly does not require that the lights be mounted on the “side” of the ship in that technical sense; see Pritchard's Admiralty Digest 2nd Edition 1887 Volume 1 Part 1 p. 241, “Every seagoing steamer is to carry on the starboard side a green light and on the port side a red light”. See also Marsden “Collisions at Sea” (1961) p. 489, Ivamy (supra) at p. 154-5, where it is noted that on a vessel less than 20 metres in length the side lights may be combined in one lantern carried on the fore and after centre line of the vessel. Side lights have for a long time been commonly carried on the superstructure, usually on the ends of the bridge.

The only reported decision I have been able to find as to the meaning of the term “side” of a ship is a decision of the U.S. District Court in United Fruit Co. v. Panama Canal Co. (1965) 243 F.Supp. 410 where Crowe D.J. had to consider a statute which excluded liability for damage in respect of anything which was a “protrusion beyond the side of a vessel”. He said at p. 413 that the entire hull of the vessel cannot be considered as the “side” within the meaning of the statute. The “side” in contemplation must be the beam ends and perpendiculars extending therefrom, fore and aft and up and down. I think I can be confident that, whatever the word means in this section of the Regulation, it does not mean that.

Neither the Act nor the Regulation defines the term “side”. The term is in the circumstances ambiguous, and it must take its meaning from the particular context in which it is used here. That I think includes the manifest purpose of the Regulation requiring the number to be displayed. I think that what was intended here was that a person observing either the port side or the starboard side of the ship would be able to see the registration number displayed, but that purpose would be achieved just as readily by having the number displayed on the side of the superstructure as by its being displayed on the side of the hull. It may be that a number displayed on the superstructure could be obstructed, but so could a number displayed on the hull; the number has to be displayed, and indeed displayed permanently and legibly.

In my opinion the console, although properly described as superstructure rather than hull, was part of the ship, and a number displayed on the side of the console could properly be said to be displayed on the side of the ship. The conclusion of the Magistrate, that having the number displayed in this way was a breach of the regulations, in my opinion involved an incorrect construction of the regulations; in my opinion having the number displayed on the side of the console is sufficient compliance with the regulation.

It follows that the conviction for this offence must be quashed and a verdict of not guilty entered.

In these circumstances it is unnecessary for me to deal with the question of penalty but I must say that it strikes me that a fine of $600 for a first offence for such a charge is too high, particularly in circumstances where at worst, there was a technical breach. It is not as though the vessel was devoid of numbers; the number was displayed on the starboard side in a position which on any view of the regulation complied with it, and a number was displayed to port, the only question being whether it was displayed in that part of the vessel where it was required by the regulation to be displayed. If the Magistrate's view of the regulation were the correct one, in my opinion the penalty imposed is in the circumstances far too high. Since I am quashing the conviction it is unnecessary for me to determine an alternative penalty.

Unsafe operation of ship

Section 43 of the Transport Operations (Marine Safety) Act 1994 provides:

Subsection 3 provides that if the contravention causes the death of or grievous bodily harm to a person, the offence is an indictable offence the maximum penalty is 5000 penalty units or imprisonment for two years. By s. 123 a “marine incident” is defined as an event causing or involving, inter alia, a collision with a ship.

The notice of appeal relies only on the ground of “the harshness of the sentence”. I have already referred to the penalty which was imposed.

The circumstances of the events were that on the day in question the appellant was working his boat laying crab pots along a line. The crab pots are laid while the vessel is underway, which involves a weight and then the pot being dropped or thrown off the stem of the vessel by the appellant. Evidently while the appellant's attention was distracted by this task he ran into a small boat occupied by a married couple who had gone out fishing. They had stopped and were drifting, having been stopped for about ten minutes. The man was attempting to rectify a fault in a piece of equipment on the vessel while the woman was getting ready to fish, when she noticed the appellant's vessel bearing down on them. She described it as coming very fast, and she said she could not see anyone on board. She screamed and waved her hands, and attracted the attention of her husband who also waved and called out but this did not produce any reaction. Just before the collision he pushed his wife into the water and then jumped in himself, although something struck his leg while he was doing so.

The appellant's boat hit the stem of the other vessel, damaging it somewhat and disabling it. After the collision the appellant realised what had happened and picked up the couple from the water, and they were able to get back into their boat. The appellant then spent about ten minutes attending to some further crab pots, before towing the disabled boat back to shore. While this occurred the couple changed into dry clothes. There was some dispute before me as to whether he took this time to give them the opportunity to change, or whether they took the opportunity to change in circumstances where he refused to give assistance until he had completed his task with the pots, but I think in any case there is no question of his abandoning the couple; he provided reasonable assistance in getting them back onto land. He subsequently lodged with the Department of Transport a marine incident report in relation to the collision.

The complainants suffered some damage to their vessel, and in addition the male complainant suffered a cut to the right leg. Apparently after returning to land the female complainant was suffering from shock. It would have been quite distressing for them, but evidently there was no lasting harm done.

The Magistrate found that the appellant was solely responsible for the collision, and in circumstances where the complainant's boat had been stopped for some time before the collision I think that is reasonable. Evidently the appellant had travelled some distance without keeping a proper lookout ahead.

The Magistrate in quite brief remarks said that in view of the incident that happened and in view of the appellant's previous record he sentenced him to four months' jail which he suspended for three years. He said that this was “to put you on the straight and narrow”. After sentence was passed there was a reference made to two other pending charges, but they were not proper matters for consideration in relation to sentence. At the time the Magistrate had before him a criminal history, a copy of which was also provided to me, which was not in dispute. It contains a number of offences starting with three charges of stealing in 1984, and an offence of unlawfully setting fire to a motor vehicle in 1986 for which a term of imprisonment was imposed. In 1989 there was an offence of assault occasioning bodily harm for which the appellant was placed on probation for eighteen months, and in 1994 a breach of the Fishing Industry and Marketing Act for which the appellant was convicted and fined $500. There was a breach of a bail undertaking in October 1995 for which no penalty was imposed, and in February 1996 he was convicted and fined $700 for assault occasioning bodily harm.

This criminal history is no doubt of some relevance, but is not of great relevance given the nature of the offence. It is not the case that the appellant has a serious, or even so far as the evidence goes, any history of unsafe conduct towards others in the operation of vessels, which would be of more particular relevance to this offence. The appellant was at the relevant time doing something which provided some explanation for his failure to keep an adequate lookout, and his conduct was not as serious as if he had simply not bothered to pay attention, or deliberately run into the other boat. The evidence of the complainants was to the effect that they could not see him, not that they saw him ignoring them. The Magistrate at one point noted that the appellant could have caused the death of two people by his actions (p. 8) but there was no reason to think that that was intended, and in the event that did not occur. The maximum penalty is imprisonment for one year, and imprisonment for a term of four months has to be assessed against that maximum. I would think that an offence of this nature would be one that would commonly involve actions which endangered other people, and so exposed them to a risk of death.

The appellant was 39 years of age, a professional fisherman, who was the sole income earner at home. He had himself been involved in an incident on another occasion when he was run over by a vessel, and suffered injuries which prevented him from working for a time, but that is I think of little relevance. He did express some sorrow for his actions in the Magistrates Court during submissions on sentence, but this is not a case where the appellant was entitled to the benefit of a plea of guilty.

I am concerned that the explanation for the sentence imposed is that the Magistrate was not treating a suspended sentence as an immediate punishment, but rather as something which would deter the appellant from further breaches of the law. I think this appears from the reference to keeping him on the straight and narrow. I am however concerned that the correct approach to the position of a suspended term of imprisonment has not been followed. As I understand the position, it is necessary for a Court to be satisfied first that the term of imprisonment imposed is one which is the appropriate penalty in all the circumstances, and then that, for some particular reason, it is appropriate to suspend some or all of that sentence of imprisonment. That follows from the terms of s. 144 of the Penalties and Sentences Act 1992, which gives a discretion to suspend a term of imprisonment only if the Court first sentences the offender to imprisonment for five years or less. Accordingly, it only comes into play once a Court has determined that an appropriate penalty is a term of imprisonment for five years or less. There must be circumstances which justify the imposition of a penalty by way of such a term of imprisonment, so as to justify passing such a sentence, and there must then be circumstances which satisfy the Court that it is appropriate to make an order that all or part of the term of imprisonment be suspended.

For example, it may be appropriate in a particular case, in view of the circumstances of the offence, considerations of general deterrence, and the criminal history of the defendant for a term of imprisonment to be imposed, but the sentencing Court may wish to avoid actual imprisonment, particularly if the defendant has not previously actually served a term of imprisonment, if he is supporting other people who will suffer hardship as a result of actual imprisonment, if there is reason to think that given further opportunity he will mend his ways so that the purpose of rehabilitation is significant, or as a result of the significance of the principle referred to in s. 9(2)(a)(ii) of Penalties and Sentences Act 1992.

In R. v. Holcroft [1997] 2 Qd.R. 392 Lee J. at 397 said that an order for suspended imprisonment under Part 8 of the Penalties and Sentences Act was intended to apply only in cases where imprisonment was thought to be appropriate, and continued:

In the same case Fryberg J. at p. 403 quoted with approval a decision of the South Australian Court of Criminal Appeal which said inter alia:

I think that these authorities justify the approach to which I have referred. The function of the suspended sentence is not specifically to deter the defendant from committing further offences in the future, but to give him the opportunity to rehabilitate himself and thereby mitigate the consequences of conduct which otherwise justifies a term of imprisonment. Unless this approach is followed, there is a risk that the suspended term of imprisonment will be in effect a penalty imposed in advance for the next offence punishable by imprisonment which the defendant commits.

Counsel for the respondent, who had lodged helpful outlines of argument and who was able to provide considerable assistance during the hearing of the appeal, unfortunately was unable to assist with any information about comparable sentences in respect of this offence. I have no personal knowledge of any comparable cases. I think there is some analogy with the offence of dangerous driving, although it is relevant to bear in mind that the maximum penalty for the offence created by s. 328A(1) in the absence of circumstances of aggravation is imprisonment for three years. I would think that a person who did not have a record of dangerous driving and who was not affected by alcohol at the time and did not cause any great harm to anyone would ordinarily not be sentenced to a term of imprisonment for that offence.

In all the circumstances I think that the penalty imposed was manifestly excessive and suspect that it came to be imposed because of some misapprehension on the part of the Magistrate about the correct approach to the imposition of a sentence of imprisonment which is wholly suspended. In my opinion the appropriate course is to set aside the penalty imposed and to re-sentence the appellant.

I think in all the circumstances the appropriate penalty is a fine of $500. The appellant said during the hearing of the appeal that he would be able to pay such a fine if allowed six months to pay. In addition, I think I can take into account that the Magistrate on 29 July 1997 imposed a fine of $600 for the other charge for which the appellant was convicted which conviction I have quashed. That suggested that the Magistrate was satisfied that the appellant had the capacity to pay that fine, and it follows that he has the capacity to pay a fine of $500. Furthermore, he may apply for a fine option order if his circumstances change. The costs of court and witnesses' expenses were ordered to be paid in respect of the conviction of the other offence, but most of those costs relate to this offence. The costs of court are the cost of one summons of $55, and witnesses' expenses of $172; the evidence of one of the witnesses, Sergeant Chelepy, was I think relevant only to the offence of failing to display the number.

In relation to this offence the Magistrate ordered that a conviction be recorded as was necessary if the appropriate penalty was a term of imprisonment. It was not suggested and there is no reason to think that recording a conviction will have any adverse effect on the appellant's economic or social well-being or the chances of his finding employment, particularly in the light of his existing criminal history.

I accordingly order that the sentence imposed by the Magistrate on 29 July 1997 be set aside, and that in lieu thereof the appellant be convicted and fined the sum of $500, and ordered to pay $55 costs of court plus witnesses' expenses of $172. He is allowed six months to pay, in default of payment to be imprisoned for twenty-eight days. The six months will date from the date on which I deliver this judgment.

With regard to the question of costs of the appeal, the appellant was successful in respect of two appeals but unsuccessful in respect of one. I think that the fair result overall is to make no order for costs in respect of any of the appeals.

The appellant appeared in person.