Bahloni and Kalungan v Munn - [2001] NTSC 101

Bahloni and Kalungan v Munn [2001] NTSC 101
PARTIES:TUDIK BAHLONI and MALIK KALUNGAN

and
MICHAEL REX MUNN

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY APPELLATE JURISDICTION
FILE NOS:JA 64 of 2001 (20114134) &
JA 65 of 2001 (20114142)

DELIVERED:  16 November 2001
HEARING DATE:  8 November 2001
JUDGMENT OF:  BAILEY J
CATCHWORDS:

APPEAL – Justices
Criminal law – Appeal against sentence – use of a foreign boat for commercial fishing in the Australian Fishing Zone – imposition of an appropriate penalty by way of fine – enforcement of the penalty by setting default period of imprisonment –principles applicable to the setting of default periods which are “just in all the circumstances” – need for general and personal deterrence – sentence not manifestly excessive – appeal dismissed.
Fisheries Management Act 1991 (Cwlth) – s 100, s 101
Justices Act 1928 (NT) – s 81, s 85
R v Tait (1979) 46 FLR 386 - followed
Mackay v Diman (1999) NTSC 96, unreported, Riley J, delivered 7 September 1999 - followed
Aruli (1999) WASCA 1042, unreported, Western Australia Court of Appeal, delivered 31 March 1999 - followed
La Ode Arifin, unreported, Full Court of the Supreme Court of Western Australia, delivered 18 June 1991 - followed
Sanara v Munn (2000) NTSC 63, unreported, Martin CJ, delivered 6 June 2001- referred
Newcastle v Coffey (2000) 9 NTLR 168 - referred
Fakie and Ishak v Shelverton (2000) 115 A Crim R 381 - referred
Kumantjara v Harris (1992) 109 FLR 400 - referred
Maynard v O’Brien (1991) 78 NTR 16 - referred
REPRESENTATION:
Counsel:
Appellants:I Read
Respondent:  G Fisher
Solicitors:
Appellants:NTLAC
Respondent:  Commonwealth DPP
Judgment category classification:    B
Judgment ID Number:  bai0109
Number of pages:  17

bai0109
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Bahloni and Kalungan v Munn [2001] NTSC 101

Nos. JA 64 of 2001 (20114134) &
JA 65 of 2001 (20114142)

BETWEEN:
TUDIK BAHLONI and MALIK KALUNGAN

Appellants
AND:
MICHAEL REX MUNN

Respondent

CORAM: BAILEY J
REASONS FOR JUDGMENT
(Delivered 16 November 2001)
Background

These two appeals against sentence were heard together as each raises a similar issue concerning the setting of default periods of imprisonment for non-payment of fines imposed for breaches of Commonwealth legislation.
Tudik Bahloni (“Bahloni”) was convicted in the Darwin Court of Summary Jurisdiction after pleas of guilty of the following offences:
a) breach of a recognizance (s 20A Crimes Act 1914 of the Commonwealth) imposed on 26 July 2001 at the Darwin Court of Summary Jurisdiction. The recognizance was in the sum of $5,000 and required Bahloni to be of good behaviour for a period of 4 years from the 26 July 2001. The recognizance was imposed after Bahloni had pleaded guilty to using a foreign boat for commercial fishing in the Australian Fishing Zone (“AFZ”) contrary to s 100(2) of the Fisheries Management Act 1991 of the Commonwealth (“Fisheries Act”). On the same occasion Bahloni was…

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: [2001] NTSC 101
Decision Date: 16 November 2001

CaseChat Overview and Summary

The case of Bahloni and Kalungan v Munn involved an appeal against sentence. The appellants, Bahloni and Kalungan, were convicted of offences under sections 100 and 101 of the Fisheries Act. They sought to appeal against the sentence imposed by the court. The respondents, Munn, were the parties who had brought the original proceedings. The case was heard by the Federal Court, where Brennan, Deane, and Gallop JJ provided their judgment.

The legal issues before the court centred on the principles applicable to an appeal against sentence. Specifically, the court needed to determine whether the sentence imposed by the trial court was unreasonable or if there had been an error in the exercise of the court's discretion. The appeal did not hinge on the court's personal view that the sentence was insufficient or excessive but rather on whether there was a demonstrated error in the sentencing process. The court had to consider whether the trial court had acted on a wrong principle, misunderstood or wrongly assessed evidence, or whether the sentence itself was so disproportionate as to indicate an error.

The court, in its judgment, emphasised that appellate courts do not interfere with a sentence unless there is a clear error in the exercise of the trial court's discretion. The court must identify whether the sentencing judge had considered improper factors, excluded relevant considerations, made factual errors, committed an error of law, or allowed extreme or misguided views to influence the sentence. The court must also consider whether the sentence, in relation to the offence and the circumstances, manifests an unsound exercise of discretion. The Federal Court found that the sentence imposed was not unreasonable and there was no error in the exercise of the trial court's discretion.

As a result, the appeal was dismissed. The sentence imposed by the trial court was upheld as appropriate and within the bounds of the court's discretion. The Federal Court did not find any grounds to interfere with the sentence on appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The general principles applicable to an appeal against sentence were conveniently summarised by the Federal Court (Brennan, Deane and Gallop JJ) in R v Tait (1979) 46 FLR 386 at 387-8:“Those principles were expressed in Harris v The Queen (1954) 90 CLR 652 which was followed by this Court in Kovac v The Queen (1977) 15 ALR 637 at 642-643 and which contains a citation from Cranssen v The King (1936) 55 CLR 509 at 519-520: ‘… the appeal is from a discretionary act of the court responsible for the sentence. The jurisdiction to revise such a discretion must be exercised in accordance with recognized principles. It is not enough that the members of the court would themselves have imposed a less or different sentence, or that they think the sentence over-severe. There must be some reason for regarding the discretion confided to the court of first instance as improperly exercised. This may appear from the circumstances which that court has taken into account. They may include some considerations which ought not to have affected the discretion, or may exclude others which ought to have done so. The court may have mistaken or been misled as to the facts, or an error of law may have been made. Effect may have been given to views or opinions which are extreme or misguided. But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound. In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this court to cases where the sentence appears unreasonable, or has not been fixed in the due and proper exercise of the court’s authority’.An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error (see generally, Skinner v The King (1913) 16 CLR 336 at 339-340; R v Withers (1925) 25 SR (NSW) 382 at 394; Whittaker v The King (1928) 41 CLR 230 at 249; Griffiths v The Queen (1977) 137 CLR 293.”Consideration and Judgment The offences created by ss 100 and 101 of the Fisheries Act provide for punishment by means of a fine only. Notwithstanding the unavailability of imprisonment as a punishment, courts have recognized on many occasions that the proper management of Australian marine resources is undermined by offences of the kind committed by the appellants and that there is a special need to deter offenders where surveillance and detection is difficult and costly (see generally MacKay v Diman [1999] NTSC 96, unreported, Riley J, delivered 7 September 1999 and cases cited therein). For present purposes, it is unnecessary to explain in detail the reason why imprisonment is not an available punishment for offences such as those created by ss 100 and 101 of the Fisheries Act. In essence, for imprisonment to be an available penalty, this would need to be agreed between Australia and the Republic of Indonesia pursuant to the United Nations Convention on the Law of the Sea. Presently, there is no such agreement. For a more detailed explanation see Aruli [1999] WASCA 1042, unreported, Western Australia Court of Appeal, delivered 31 March 1999.