Chatto v Kruf - [2007] NTSC 55

Chatto v Kruf [2007] NTSC 55
PARTIES:CHATTO, RAYMOND ERIC
v

KRUF, REINOLD

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NO:JA 14 of 2007 (20615453)
DELIVERED:  7 November 2007
HEARING DATES:  18 September 2007
JUDGMENT OF:  OLSSON AJ
CATCHWORDS:

CRIMINAL LAW - JUSTICES APPEAL
Respondent pleaded guilty to attempting to take protected wildlife out of the Northern Territory without authorisation, contrary to the Territory Parks and Wildlife Conservation Act - large quantity of reptiles consigned in box from Alice Springs to respondent's address in New South Wales - intercepted at Darwin airport - 23 of the reptiles found dead due to dehydration - respondent had been party to collecting fauna with a co-offender without a permit to do so - first offender - maximum prescribed penalty for an attempt a fine of $27,500 or imprisonment for two years and six months - magistrate imposed nominal fine of $500 - prosecution appeal on grounds of manifest inadequacy and failure to express adequate reasons in justification of nominal penalty - penalty manifestly inadequate and failed to recognise paramount consideration of general deterrence - inadequate reasons explaining imposition of nominal penalty - appeal allowed - respondent to be re-sentenced.
Territory Parks and Wildlife Conservation Act, s 66 (3)
Raggett and Others (1990) 50 A Crim R 41; Robison (1992) 62 A Crim R 374; applied
The Queen v Osenkowski (1982) 30 SASR 212; followed
Janima v Edgington (unreported, Mildren J, No 36 of 1995); Sun Alliance Insurance v Massoud [1989] VR 8; referred to.
REPRESENTATION:
Counsel:
Appellant:P Elliott
Respondent:  M Johnson
Solicitors:
Appellant:Department of Natural Resources Legal Office
Respondent:  A Crane
Judgment category classification:        C
Judgment ID Number:  ols200703
Number of pages:  17

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Chatto v Kruf [2007] NTSC 55
No. JA 14 of 2007 (20615453)

BETWEEN:
CHATTO, RAYMOND ERIC

Appellant
AND:
KRUF, REINOLD

Respondent

CORAM: OLSSON AJ
REASONS FOR JUDGMENT
(Delivered 7 November 2007)
Introduction

This is a prosecution appeal against a sentence imposed by an acting stipendiary magistrate on the respondent in the Court of Summary Jurisdiction at Darwin on 14 March 2007.
The respondent was originally charged on complaint with three counts under various provisions of the Territory Parks and Wildlife Conservation Act (“the Act”). When the proceedings were called on before the learned magistrate, the respondent entered a plea of guilty, through his counsel, to one count in full satisfaction of the relevant complaint, whereupon the prosecutor withdrew the other two counts.
By his plea, the respondent admitted that, on or about 4 December 2005 at Alice Springs, he attempted to take protected wildlife out of the Northern Territory, without being authorised to do so under the Act, contrary to s 66(3) of that statute.
That offence attracts a maximum penalty of 250 penalty units, that is to say $27,500, or imprisonment for two years and six months. The prosecution informed the learned magistrate…

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.

Continue reading Chatto v Kruf

Details

AGLC: Chatto v Kruf [2007] NTSC 55
Case: [2007] NTSC 55
Decision Date: 7 November 2007

CaseChat Overview and Summary

Chatto v Kruf is a case concerning a respondent who pleaded guilty to attempting to transport a large quantity of protected wildlife out of the Northern Territory without the necessary authorisation. The reptiles, consigned in a box from Alice Springs, were intercepted at Darwin airport, where it was discovered that 23 of them had died due to dehydration. The respondent had collected the fauna with a co-offender without the required permit. This was the respondent's first offence, and the maximum prescribed penalty under the Territory Parks and Wildlife Conservation Act was a fine of $27,500 or imprisonment for two years and six months. The magistrate imposed a nominal fine of $500, leading to an appeal by the prosecution on the grounds of manifest inadequacy and the lack of adequate reasons justifying the nominal penalty.

The court was required to determine whether the penalty imposed was manifestly inadequate and if the reasons provided by the magistrate for the nominal penalty were adequate. The appeal hinged on whether the penalty sufficiently addressed both personal and general deterrence, and if the reasons given were appropriate in light of the offence's seriousness and the need to prevent similar offences in the future. The court examined the statutory framework and the circumstances of the offence, assessing the impact of the respondent's actions on the wildlife and the broader community.

The court concluded that the penalty imposed was indeed manifestly inadequate, failing to adequately reflect the principles of personal and general deterrence. The reasons provided by the magistrate for the nominal penalty were also found to be insufficient, as they did not appropriately address the need for a penalty that would effectively deter both the respondent and others from committing similar offences. The appeal was allowed, and the penalty was set aside. The court emphasised the importance of re-sentencing to ensure that the penalty appropriately reflected the seriousness of the offence and served as a deterrent to others. The court indicated that it would hear counsel regarding the appropriate re-sentencing of the respondent.

Orders

Orders of the court

The appeal is therefore allowed and the penalty imposed set aside. It falls to this court to re-sentence the respondent. I will hear counsel as to such re-sentencing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Even so, there was a clear responsibility on the Court to impose a fine of sufficient quantum to adequately reflect the factors of both personal and general deterrence. By no stretch of the imagination could it be said that a nominal fine achieved such an outcome.Conclusion The appeal is therefore allowed and the penalty imposed set aside. It falls to this court to re-sentence the respondent. I will hear counsel as to such re-sentencing.

Ratio Decidendi

Legal Principle Established

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