Darter v Diden - [2006] SASC 152

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DARTER v DIDEN; DARTER v YANTO; DARTER v MANSIBU
[2006] SASC 152
Judgment of The Honourable Chief Justice Doyle
24 May 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - OTHER OFFENCES
The respondents were each convicted in the Magistrates Court of using a foreign fishing boat for commercial fishing in the Australian Fishing Zone contrary to s 100(2) of the Fisheries Management Act 1991 (Cth) - each respondent was also convicted in the Magistrates Court of having in his charge in the Australian Fishing Zone a foreign boat equipped for fishing contrary to s 101 of the Fisheries Management Act 1991 (Cth) - the Magistrate imposed a fine of five dollars on each of the respondents - the respondents were deported to Indonesia - whether the sentence imposed is manifestly inadequate - consideration of the relevant factors to be taken into account in sentencing for offences of this kind - the loss of the fishing vessel, the time spent in detention and the financial circumstances of the respondents are all relevant factors in determining the sentence - the financial circumstances of the respondents is not the determinative factor - error made out in respect of a failure to give proper weight to factors beyond the financial circumstances of the respondents in sentencing - no submission that the sentence be set aside - appeal dismissed.
Fisheries Management Act 1991 (Cth) s 100(2), s 101(2), s 100(4); Crimes Act 1914 (Cth) s 15A, s 16A, s 16A93), s 16C, s 16E; Criminal Law (Sentencing) Act 1988 (SA) s 61, s 69, referred to.
Winkler v Cameron (1981) 33 ALR 663; Rahme (1989) 43 A Crim R 81; Smith v The Queen (1991) 25 NSWLR 1; Chief Executive Officer of Customs v Rota Tech Pty Ltd & Ors (1991) 201 LSJS 390; Fraser v R (1985) 20 A Crim R 4; Kaye v Vagg (No 2) (1984) 11 A Crim R 127; Briant v Bessell (1994) 74 A Crim R 204, discussed.
Bahloni v Munn (2001) 125 A Crim R 144; Djoy v Department of Fisheries (Cth) (2004) 150 A Crim R 255; Samide v Munn (2004) 142 A Crim R 434; Mahammed Yusup v The Queen [2005] NTCCA 19; Flego v Lanham (1983) 32 SASR 361; Fry v Bassett (1986) 44 SASR 90, considered.

DARTER v DIDEN; DARTER v YANTO; DARTER v MANSIBU
[2006] SASC 152
Magistrates Appeal: Criminal

DOYLE CJ: Three Indonesian fishermen appeared before the Magistrates Court in Adelaide and pleaded guilty to offences against s 100(2) and s 101(2) of the Fisheries Management Act 1991 (Cth) (“the FMA”). The circumstances of the offences and of the defendants were similar to numerous other such offences coming before the courts of this and other States, and of the Northern Territory. On each count each defendant faced a maximum penalty of a fine of $27,500. No other penalty is provided by the FMA. The defendants had no means of payment in Australia, and were dealt with on the basis that they were fishermen of very limited means. Once they were dealt with by the Court they were to be deported to Indonesia.
The Magistrate said that to impose a fine was “tokenism”. He imposed a fine of $5 on each count.
The prosecutor appeals, arguing that the sentence is manifestly inadequate. The appeal raises the question of the approach to be taken in a case like this.
Facts and legislation
The offences charged were these. First, using a foreign fishing boat for commercial fishing in the Australian Fishing Zone (“the AFZ”), contrary to s 100(2) of the FMA. The maximum penalty for this offence when dealt with on indictment is $275,000 and when dealt with summarily is $27,500: s 100(4) of the FMA. Second, an offence of having in his charge in the AFZ a foreign boat equipped for fishing, contrary to s 101(2) of the FMA. The maximum penalty for that offence is the same.
The circumstances of each offence and of each offender are virtually indistinguishable.
Each of them was detected and detained on the vessel in question while at sea. They were a substantial distance inside the AFZ.
Each vessel was described as a type III Indonesian fishing vessel. They were between 12 metres and 15 metres long. Each was equipped with a compass. Two of the vessels carried six crew, one of them carried 12 crew.
A substantial quantity of fishing equipment was found on each vessel. A small to moderate quantity of fish including shark fin was found on two of the vessels.
Each of the defendants, when interviewed at sea, said that he knew he was in Australian waters and that it was illegal to fish there.
None of the defendants had a previous conviction for this offence.
They were all detained in immigration custody for between five weeks and six weeks. At the time of their appearance in court they were being held at the Baxter Detention Centre in South Australia, which explains why they appeared before a South Australia Court. Each of them faced deportation. I was told that each of them was deported shortly after appearing before the Magistrate. They spent between 46 days and 51 days in detention.
Each of them came from a fishing village in Indonesia. They were dealt with on the basis that they had no means in Australia to pay a fine, and no means in Indonesia to pay a fine of any substance.
Section 16A of the Crimes Act 1914 (Cth) sets out the matters that a court must take into account in determining a sentence, in addition to any other matters that might be relevant. The imposition of a fine is dealt with by s 16C. It provides:
16C Fines
(1) Subject to subsection (2), before imposing a fine on a person for a federal offence, a court must take into account the financial circumstances of the person, in addition to any other matters that the court is required or permitted to take into account.
(2) Nothing in subsection (1) prevents a court from imposing a fine on a person because the financial circumstances of the offender cannot be ascertained by the court.
Because the Magistrates Court is a South Australian court, the law of South Australia relating to the enforcement of fines applies to the defendants: s 15A of the Crimes Act. Under the Criminal Law (Sentencing) Act 1988 (SA) there is no provision for fixing a period of imprisonment to be served in default of payment of a fine. Imprisonment in default of payment is not available in this State. In certain other States such provision is made, and the default period varies significantly.
In South Australia failure to pay a fine within 28 days (see s 61 of the Sentencing Act) can result in a penalty enforcement order (see s 69), but such an order does not include imprisonment. There is no need to refer to the enforcement methods that are available. Having regard to the deportation of the defendants, or their imminent deportation, there was no prospect of a fine being enforced against any of them.
The Magistrate’s decision
The Magistrate’s reasons run to a few lines only. His approach appears from the following passages:
It is very very important for Australia to protect its fishery, and nothing should be read into the penalty that I am going to impose, that I think otherwise. But the main harm has been fixed here. The boat has been seized and will be destroyed. They have spent time in immigration detention. To impose a fine on an Indonesian, who will go back to Indonesia and won’t pay it and has limited money personally, in my view is only tokenism.
I impose a $5 fine on each count, prosecution do not seek any fees.
…
As an addition I note that it was my original intention to convict without further penalty until the prosecutor reminded me there is no power to do that in the Commonwealth legislation.
Relevant principles
These are serious offences. The substantial maximum fine indicates that. There is no provision for imprisonment because of Australian’s international treaty obligations in such cases: see Bahloni v Munn [2001] NTSC 101; (2001) 125 A Crim R 144 at [12] Bailey J; Djou v Department of Fisheries (Cth) [2004] WASCA 282; (2004) 150 A Crim R 255 at [18]-[19] Roberts-Smith J.
Offences of this kind are prevalent. This was demonstrated by schedules provided to me which contain details of prosecutions under the FMA in Western Australia, the Northern Territory, Queensland and South Australia. In South Australia almost 200 offenders have appeared before the Magistrates Court since 2005. Substantial numbers of persons have been prosecuted in the last few years in the other jurisdictions referred to.
I accept that the detection of offenders is both costly and difficult. It requires the constant patrolling of the relevant waters, and must at times involve danger to the seamen involved.
It is obvious that the fisheries in question are a valuable national resource, and that proper management of that resource is important to Australia: see Bahloni at [12] and Samide v Munn [2004] NTSC 4; (2004) 142 A Crim R 434 at [25] Riley J.
As the offences are offences under Commonwealth law, operating throughout Australia, a consistent approach to sentencing should be taken. However, it is necessary to bear in mind that local law relating to the enforcement of fines will vary, and it is not practicable to fine tune an otherwise appropriate sentence in one jurisdiction to allow for different approaches to enforcement in other jurisdictions: see Samide at [20]-[23], and the decisions there referred to.
Reference to the reported cases shows that many of the offenders against the provisions in question are Indonesian fishermen from small fishing villages, whose circumstances are indistinguishable from the defendants in this case. They have no means to pay a substantial fine. In a jurisdiction in which imprisonment is ordered in default of payment, and in particular when that default period is likely to be served before the offender is deported, regard should be had to the impact of the default period: see Bahloni at [25]-[28] Bailey J. The different approaches to default periods are canvassed in Samide by Riley J at [15]-[19] and in Djou by Roberts-Smith J at [61]-[71]. This difference, as I have earlier mentioned, limits the extent to which consistency can be achieved.
It is appropriate in considering the sentence to bear in mind the impact of the forfeiture of the vessel in question or, as happened in this case, the loss of the vessel at sea. However, by providing for automatic forfeiture by s 106A of the FMA, and for payment of a fine, Parliament has indicated that a fine is to be imposed as a further penalty in the ordinary case.
It is also appropriate to take account of the time spent in detention, even though that detention may be a result of the defendant’s immigration status (that is, not being an Australian citizen or the holder of an appropriate visa) rather than a result of the offence itself. That was the view of the Full Court of the Supreme Court of the Northern Territory in Mohammed Yusup v The Queen [2005] NTCCA 19 at [13]-[25] Riley J, with whom the other members of the Court agreed. In that case Riley J put considerable weight on the provisions of s 16E of the Crimes Act. I am not confident that that section applies in a case like this. However, there is such a close connection between the detention and the offence that it is appropriate to take the detention into account.
Finally, it is appropriate to take into account the substantial overlap between the two offences. In that respect I agree with the observations of Riley J in Yusup at [10]-[12].
Consideration of the appeal
The loss of the vessel and the period in detention were relevant matters. But a substantial further punishment was required. Each defendant’s financial circumstances, that is their inability to pay, was relevant, but was not a reason to abandon consideration of the other matters relevant to the fixing of a penalty. They include in particular the seriousness of the offence, the deliberate nature of the offending, deterrence of the defendants and of others, and the denunciatory aspects of punishment.
The Magistrate’s approach appears to have been to subordinate all these considerations to the capacity of the defendants to pay a fine.
The Magistrate thought that a substantial fine was an exercise in tokenism, because it was unlikely that it would be paid. But to take that approach is to accept that capacity to pay is the decisive consideration, which in my opinion it cannot be.
I consider that a substantial fine was called for, even after making allowance for the loss of the vessel and the period of detention. A substantial fine was called for because, in particular, of the seriousness of the offence and its prevalence. Deterrence remains a factor, even if it is attenuated by the unlikelihood of recovery of the fine in future like cases.
Treating the offender’s capacity to pay as relevant, but not decisive, is consistent with the approach at common law. In Flego v Lanham (1983) 32 SASR 361 at 365-367 Wells J considered this issue. He said at 366:
But the offender’s capacity to pay should always be kept in mind as a factor worthy of consideration; it cannot be decisive (see generally Reid v Liersch unreported, Walters J, 23 September 1970), but it is likely to be of some moment.
Legoe J came to a similar conclusion in Winkler v Cameron (1981) 33 ALR 663. This approach is consistent with the view of Finlay J in Rahme (1989) 43 A Crim R 81 at 86-88, although that case was complicated by the fact that the sentencing Judge had been urged to impose a substantial fine rather than a sentence of imprisonment. In Smith v The Queen (1991) 25 NSWLR 1 Kirby P (at 21) expressed opposition to the imposition of a fine which was beyond the means of the person fined. That case also was complicated by its particular circumstances. It was a case involving contempt of court by a prisoner serving life imprisonment, the response of the Judge having been to impose a very substantial fine. The matter was complicated by the life sentence being served, which rendered other forms of punishment impractical, but likewise made the prospect of payment of the fine illusory. Nevertheless, Mahoney JA (at 23-24) and Meagher JA (at 24) both upheld the fine, recognising that it was unlikely ever to be collected.
I have considered these cases and remain of the view that the defendants’ capacity to pay was a relevant consideration, but not decisive. There is nothing in the Crimes Act to suggest that it is a decisive factor. Nor, in my opinion, does ordinary sentencing principle require that it be so treated.
The impact of s 16C of the Crimes Act was considered by Mullighan J in Chief Executive Officer of Customs v Rota Tech Pty Ltd & Ors [1999] SASC 64; (1999) 201 LSJS 390. He considered a number of the reported cases and (at 397) said:
It follows that the capacity of the offender to pay cannot be the dominant factor when fixing the fine to be imposed. It is an important factor along with the other matters which the Court must take into account pursuant to s 16A. Where the offence involves large scale drug importation for the illicit drug trade in this country, the financial circumstances of the offender, whilst relevant, should not assume prominence in the exercise of the sentencing discretion.
I agree with his approach.
There are some cases in which observations are made to the effect that a fine must not exceed the defendant’s capacity to pay. Some of them are referred to by the Full court of the Federal Court in Fraser v R (1985) 20 A Crim R 4 at 7-9. In that case, the Court’s reasoning was directed to cases in which imprisonment is an available punishment, and to circumstances in which it is appropriate to impose a sentence of imprisonment and a fine. In Kaye v Vagg(No 2) 1984) 11 A Crim R 127 at 129 Cox J (as he then was) referred with approval to a statement that it was never “just or rational” to impose a fine that is beyond the offender’s capacity to pay. But that also was in a context in which imprisonment was an alternative, and a fine attracted a default period of imprisonment. The same comment applies to remarks made by Zeeman J in Briant v Bessell (1994) 74 A Crim R 204. He made the point that if imprisonment and a fine are imposed, the period of imprisonment and the default period should not, in aggregate, exceed the sentence that was appropriate. I refer also to the discussion of this topic in Fox and Freiberg, Sentencing, State and Federal Law in Victoria (2^nd ed, 1999, Oxford University Press) at 4.209.
When imprisonment and a fine are available as punishment, it will not usually be appropriate to impose a fine on a defendant who lacks the capacity to pay: Fry v Bassett (1986) 44 SASR 90 at 92 Olsson J. For reasons explained in a number of the cases referred to above, in such a case imprisonment is the appropriate response. To put it shortly, in a case like that the period of imprisonment should not be arrived at by reference to the default rate applicable on failure to pay the fine, but should be determined directly. But that is not the present case. Imprisonment is not an alternative. It was the former situation which was considered by Roberts-Smith J in Djou: see his summary of the cases at [48].
To sum up, when a fine is the only punishment provided by Parliament, a court considering the sentence to be passed (which will usually include as a possibility an order such as an order of discharge without proceeding to a conviction – see s 16A(3) of the Crimes Act must consider all of the matters relevant to the imposition of an appropriate sentence. The defendant’s capacity to pay a fine is not, in such a case, the decisive consideration. Authority does not support that view. Capacity to pay is a relevant factor. If a default period of imprisonment is to be or later may be fixed, the likelihood and import of the defendant having to serve that period is relevant. In that way, in such a case capacity to pay calls for consideration, as it does if imprisonment and a fine are imposed.
For the reasons that I set out, the Magistrate should have imposed a substantial fine. Sentencing principle does not support the approach that he took.
Moreover, courts in this State and other States and in the Northern Territory have been imposing substantial fines in indistinguishable circumstances. Consistency required the Magistrate to adhere to that approach, until it has been shown to be wrong.
Ms Abraham QC, counsel for the appellant, did not submit that I should set the sentence aside and re-sentence the defendants. Her main concern was to ensure that the Magistrate’s decision, which attracted some comment at the time, did not set a precedent. The absence of the defendants from Australia, and their inability to be heard on appeal, is another reason for not setting aside the sentence and re-sentencing them.
Had I thought it appropriate to re-sentence the defendants, I would have imposed a fine of not less than $4,000 on each count, amounting to a total of not less than $8,000 to be paid by each defendant.
I should record that in dealing with this matter I was assisted not only by the submissions from Ms Abraham, but also by submissions from Mr Muscat, who appeared as amicus curiae on instructions from the Legal Services Commission to assist the Court. I understand that the Commission provided representation for the defendants before the Magistrate.
Conclusion
I order that the appeal be dismissed.