Alimudin v McCarthy; Nurdin v Bravos - [2008] NTCA 7

Alimudin v McCarthy; Nurdin v Bravos [2008] NTCA 7

PARTIES: ALIMUDIN, Haruma

v
McCARTHY, Kristin Rose
AND:
NURDIN, Suriyadi
v
BRAVOS, Cindy

TITLE OF COURT: COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NOS:AP4 of 2008 (20732015) and
AP5 of 2008 (20732851)

DELIVERED:  4 September 2008
HEARING DATES:  19 August 2008
JUDGMENT OF:  MARTIN (BR) CJ, THOMAS &
RILEY JJ

APPEALED FROM: SOUTHWOOD J
CATCHWORDS:

APPEAL – Whether a sentence of imprisonment can be backdated under the Sentencing Act (NT) where a person has been detained under Fisheries Management Act 1991 (Cth) and/or the Migration Act 1958 (Cth)
Fisheries Management Act (Cth)
Crimes Act 1914 (Cth)
Migration Act 1958 (Cth)
Sentencing Act (NT)

R v C (1997) 93 A Crim R 81; R v Lavery (1978) 19 SASR 515;
R v O’Donohue (1998) 34 A Crim R 397; Van der Meer v The Queen (1988) 82 ALR 10, considered
REPRESENTATION:
Counsel:
Appellants:M Johnson
Respondents:  P Willee QC and L Taylor
Solicitors:
Appellants:Hunt & Hunt
Respondents:  Commonwealth Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Ril0814
Number of pages:  16

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Alimudin v McCarthy; Nurdin v Bravos [2008] NTCA 7

Nos AP4 of 2008 (20732015) and AP5 of 2008 (20732851)
BETWEEN:

HARUMA ALIMUDIN

Appellant

AND:

KRISTIN ROSE McCARTHY

Respondent

AND BETWEEN:

SURIYADI NURDIN
Appellant

AND:

CINDY BRAVOS
Respondent

CORAM: MARTIN (BR) CJ, THOMAS AND RILEY JJ
REASONS FOR JUDGMENT
(Delivered 4 September 2008)
MARTIN (BR) CJ:

I agree that the appeals should be allowed for the purpose of backdating the sentences to the dates specified by Riley J and with his Honour’s reasons.
THOMAS J:
I have read the Reasons for Judgment prepared by Riley J. I agree, for the reasons he has expressed, that the appeals should be allowed. I agree that the sentences should be amended and backdated to the dates the appellants were first taken into custody.
RILEY J:
On 11 December 2007 each of the appellants entered pleas of guilty in the Court of Summary Jurisdiction to offences committed under s 100B(1) and s 101AA(1) of the Fisheries Management Act 1991 (Cth). Those sections create offences of using a foreign boat for fishing in the territorial sea of Australia within the Australian Fishing Zone (AFZ) and having a foreign boat equipped for fishing in the territorial sea of Australia within the AFZ.
Following pleas in mitigation the appellants were each sentenced to terms of imprisonment. The appellants appealed against their sentences and the appeals were heard before a judge of the Supreme Court in April 2008. On 24 April 2008 orders were made allowing the respective appeals, setting aside the sentences and re-sentencing the appellants to further terms of imprisonment. Reasons for decision were delivered on 28 April 2008. Each appellant now appeals to this Court against the further sentences imposed by the learned sentencing judge.
The significant issue…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NTCA 7
Decision Date: 4 September 2008

CaseChat Overview and Summary

In Alimudin v McCarthy; Nurdin v Bravos, the applicants, Haruma Alimudin and Suriyadi Nurdin, appealed against their sentences in the Northern Territory Court of Justice. Each was convicted of an offence under the Fisheries Management Act 1991 (Cth) and sentenced to imprisonment. The central issue was whether their sentences could be backdated to the date of their arrest under section 63(5) of the Sentencing Act (NT). This statute allows a court to order that a sentence of imprisonment shall commence on the day of the arrest or any day between the arrest and the sentencing.

The applicants contended that their sentences should be backdated to the day they were taken into custody, which was prior to their formal sentencing. The legal issue before the court was whether the phrase "taken into custody" in section 63(5) of the Sentencing Act encompassed being detained under the Fisheries Management Act or the Migration Act 1958 (Cth). The court needed to determine if these provisions of the federal acts could be considered as "custody" for the purpose of backdating a sentence under the Sentencing Act (NT).

The court found that section 63(5) of the Sentencing Act (NT) did permit the backdating of a sentence to the date of arrest if the offender was taken into custody due to an arrest for conduct that may have amounted to an offence. Given that both applicants were detained under the Fisheries Management Act and subsequently convicted, their sentences could be backdated to the date of their arrest. The court concluded that the phrase "taken into custody" included detention under federal acts, and thus the sentences could be appropriately backdated. The appeal was allowed, and the sentences were amended to commence on the dates of their arrest.

Orders

Orders of the court

In the circumstances it was appropriate that the sentences imposed upon the appellants be backdated to the date upon which they were taken into custody being, in the case of Haruma Alimudin, 2 November 2007, and in the case of Suriyadi Nurdin, 3 November 2007. I would allow the appeal in each case and amend the sentences accordingly.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

For the purposes of s 63(5) of the Sentencing Act each appellant was taken into custody on account of his arrest for conduct which may have amounted to an offence under the Fisheries Management Act relating to the use of a foreign boat equipped for fishing in the AFZ and each was subsequently convicted of such an offence and sentenced to imprisonment. In those circumstances, in my view, pursuant to s 63(5) of the Sentencing Act the court may order that such imprisonment shall be regarded as having commenced on the day on which the offender was arrested or on any other day between that day and the day on which the court passes sentence.Conclusion In the circumstances it was appropriate that the sentences imposed upon the appellants be backdated to the date upon which they were taken into custody being, in the case of Haruma Alimudin, 2 November 2007, and in the case of Suriyadi Nurdin, 3 November 2007. I would allow the appeal in each case and amend the sentences accordingly.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.