Fakie and Ishak v Shelverton

[2000] WASCA 177

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   FAKIE & ISHAK -v- SHELVERTON [2000] WASCA 177

CORAM:   HEENAN J

HEARD:   8 JUNE 2000

DELIVERED          :   11 JULY 2000

FILE NO/S:   SJA 1028 of 2000

BETWEEN:   JOHN FAKIE

Appellant

AND

PHILLIP ANTHONY SHELVERTON

Respondent

FILE NO/S              :SJA 1029 of 2000

BETWEEN             :PITER ISHAK

Appellant

AND

PHILLIP ANTHONY SHELVERTON
Respondent

Catchwords:

Appeal - Sentencing - Foreign boat used for commercial fishing - Being in charge of foreign boat equipped for fishing - Assault on Royal Australian Navy personnel exercising powers under Fisheries Management Act 1991 (Cth) - Impecunious offenders - Global penalty of fine imposed - Separate penalties required for offences under different provisions of Act - Imprisonment only appropriate penalty for assault - Fines for other offences varied - Default periods fixed by reference to State legislation

Legislation:

Fisheries Management Act 1991 (Cth), s 100, s 101, s 108(f)

Crimes Act 1914 (Cth), s 4AA, s 4B, s 4K, s 15A, s 19AC
Sentencing Act 1995 (WA), s 58

Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA), s 53

Result:

Appeals allowed

Representation:

SJA 1028 of 2000

Counsel:

Appellant:     Mr R E Lindsay

Respondent:     Mr J McGrath

Solicitors:

Appellant:     Director of Legal Aid

Respondent:     Commonwealth Director of Public Prosecutions

SJA 1029 of 2000

Counsel:

Appellant:     Mr R E Lindsay

Respondent:     Mr J McGrath

Solicitors:

Appellant:     Director of Legal Aid

Respondent:     Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Akimin & Ors v Cooper, unreported; SCt of WA; Library No 950071; 24 February 1995

Aruli & Ors v Mitchell, unreported; FCt SCt of WA; Library No 990161A; 31 March 1999

Case(s) also cited:

Cheatley v The Queen (1972) 127 CLR 291

Chen Yin Ten v Little (1975) 28 FLR 480

Flego v Lanham (1983) 32 SASR 361

La Ode Arifin and Ors v Ostle and Ors, unreported; FCt SCt of WA; Library No 8923; 18 June 1991

Perez v The Queen (1999) 21 WAR 470

R v Boyle (1987) 34 A Crim R 202

R v Downie and Dandy (1997) 95 A Crim R 299

R v Sinclair (1990) 51 A Crim R 418

Thomas v Ducret (1984) 153 CLR 506

Wilde v Menville Pty Ltd (1981) 50 FLR 380

1. HEENAN J:  These are appeals by two Indonesian fishermen from sentences imposed upon them in the Court of Petty Sessions at Broome after they had been convicted of offences under the Fisheries Management Act 1991 (Cth).

2. The appellants and five other Indonesians were the crew of a fishing boat, about 14 m long with a beam of about 3 m, which on 21 November 1999 had been seen fishing near Cassini Island, about 600 km north east of Broome.  Later that day a patrol boat of the Royal Australian Navy intercepted the fishing boat.  The executive officer and two able seamen boarded the other vessel.  The respondent, a fisheries officer, accompanied them.  After interviewing the appellant Ishak, the master of the fishing boat, the respondent informed him that it would be towed to Broome for further investigation.  He and the executive officer returned to the patrol boat, leaving behind the two seamen, AB Lamont and AB Hayward, to protect the fishing boat and its crew.  AB Lamont was armed with a loaded 9 mm pistol.  The tow began shortly afterwards.

3. The evidence which later was presented to the Court shows that, about 90 minutes after the tow began, one of the Indonesians alerted AB Hayward to the presence of water in the bilge of the fishing boat.  Having satisfied himself that the water level was not rising, AB Hayward instructed the Indonesian to use the boat's hand pump to remove the water.  The latter refused to do so.  He wanted to use the small motor pump which the seamen had brought from the patrol boat for use in an emergency.  Taking the view that there was no emergency, AB Hayward repeated his instruction.  The other man became angry, refused to pump the water and joined several other members of the crew who were already in the cabin.  AB Hayward then squatted down by the cabin and told the closest crew member to "come out and pump".  This prompted an abusive response.  The remaining members of the crew joined those in the cabin.  AB Hayward then instructed Ishak to "come out and pump".  The latter refused.  While the two able seamen were standing outside the rear of the cabin Jovi Sina, another member of the crew, picked up a machete and lunged with it towards AB Lamont.  The latter drew his pistol, pointed it at Sina and told him to put down the machete.  Sina did not do so, but went back into the cabin with it.  Ishak then took another machete and handed it to the appellant Fakie.  The latter, followed by Ishak, went out on deck and used the machete to chop some wood which he placed on a small wood fired stove.  Then Ishak poured flammable liquid on the stove and lit it.  Fakie cut the rope which had secured the stove to the deck and both appellants pushed the stove towards Lamont and Hayward.  By then the flames from the stove were a metre or more high.  In that way the two seamen were trapped at the stern of the vessel for about ten minutes.  They were faced with the likelihood that, in order to protect themselves, either AB Lamont would have to fire his pistol or both would have to jump overboard.  Fortunately, Hayward had summoned help by radio and they were relieved by another boarding party.  Then, with "the application of minimal force", the crew of the fishing boat was transferred to the patrol boat.

4. The naval vessel reached Broome with its tow on the following day. When interviewed there on 23 November, each of the appellants admitted that the boat had been fishing in Australian waters, not only on 21 November but also on 5 November 1999. They and Jovi Sina were each charged under s 100 of the Act with two offences of using a foreign boat for commercial fishing in the Australian fishing zone without the appropriate licence. In addition, Ishak was charged under s 101 with two offences of having in his charge in the Australian fishing zone an unlicensed foreign boat equipped for fishing. The three men were each charged also under s 108(f) with two offences of assaulting an officer in the exercise of the officer's powers under the Act, one offence relating to each of the able seamen.

5. On 6 December 1999 each of the three fishermen pleaded not guilty to the charges of assault, but did plead guilty to the other charges.  On 3 February 2000, after trial, the learned Magistrate found all three guilty on the assault charges.  Having heard addresses from counsel on the matter of sentence, his Worship released Jovi Sina on a bond of $16,000 to be of good behaviour for a period of 5 years but imposed on each of the appellants a "global sentence" of a $25,000 fine and ordered imprisonment for 18 months without parole in default of payment of the fine.  His Worship also ordered forfeiture of the fishing boat as well as the equipment and fish on board.

6. On the hearing of the appeals counsel for the appellants relied on two main grounds:  one, that the fines of $25,000 are manifestly excessive, particularly as the appellants have no means to pay; the other, that 18 months imprisonment for default in payment of the fines is inappropriate and manifestly excessive, taking into account the nature of the offences, the statutory regime and the principles governing default penalties.  Prior to the hearing of the appeal counsel for the respondent had given notice to the appellants' solicitor that he also intended to challenge the decision of the learned Magistrate, submitting that imprisonment, instead of a fine, should have been imposed for the assaults.  At my invitation, because of the real possibility that the success of such a challenge would result in the imposition of a heavier penalty, counsel for the respondent formally summarised his submission as follows:

   "1.The Learned Magistrate erred in law by not imposing separate penalties in respect to the separate provisions of the law of the Commonwealth.

   2.That a term of imprisonment should have been imposed in respect to the offences contrary to section 108 of the Fisheries Management Act 1991.

   3.That separate fines should have been imposed in respect to the offences contrary to the separate provisions being sections 100 and 101 of the Fisheries Management Act 1991."

7. Before considering whether the sentences are disproportionate to the overall blameworthiness of the appellants, it is convenient to turn to the provisions of s 4K(3) and (4) of the Crimes Act 1914 (Cth).  Those provisions read as follows:

   "(3)Charges against the same person for any number of offences against the same provision of a law of the Commonwealth may be joined in the same information, complaint or summons if those charges are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character.

   (4)If a person is convicted of 2 or more offences referred to in subsection (3), the court may impose one penalty in respect of both or all of those offences, but that penalty shall not exceed the sum of the maximum penalties that could be imposed if a separate penalty were imposed in respect of each offence."

   The "global sentence" imposed by the learned Magistrate in respect of each appellant does not comply with the above provisions. His Worship should have imposed separate penalties in respect of the offences against the provisions of s 100, s 101 and s 108 respectively of the Fisheries Management Act.  Thus it is necessary now to decide, in respect of each appellant, what penalty is appropriate to the offences under each of those provisions.

8. Section 108 of the Fisheries Management Act imposes a maximum penalty of imprisonment for 12 months for assaults and other offences under that section. Pursuant to s 4AA(1) and 4B(2) of the Crimes Act a pecuniary penalty not exceeding $6,600 may be imposed instead of, or in addition to imprisonment.  In this case the assaults did not involve the application of force to either of the victims, but they did involve the use of threatening behaviour which might well have provoked desperate action.  Bearing in mind that they were on a small boat manned by a crew of seven, some of whom had displayed a readiness to use machetes, there was a real prospect ‑ if the two seamen did not jump overboard in order to escape the threat ‑  that AB Lamont would fire his pistol, thereby involving the risk of death or serious injury to one or more of those on the boat.  The situation was aggravated by the fact that, having been apprehended for breach of the laws of another country, the appellants were threatening officers of that country who were acting in performance of their duty.

9. In all the circumstances of the case I am satisfied that imprisonment is the only appropriate penalty for the assaults.  In my opinion a term of 9 months for the assault on each of the seamen would be justified.  However, bearing in mind that the assaults arose out of the same incident and are of the same character, I would direct that those terms take effect concurrently with each other.  Having regard to the nature and circumstances of the assaults and the antecedents of the appellants, and bearing in mind in particular that they have served by far the greater part of the sentence which I would impose, I am satisfied that a recognizance release order is not appropriate in either case (see Crimes Act, s 19AC(2), (4) and (5)).

10. Sections 100 and 101 of the Fisheries Management Act both provide for punishment by a fine not exceeding $27,500 if the offence is dealt with by a court of summary jurisdiction.  Such offences are very serious and their gravity should be reflected in the penalties imposed.  Although the appellants have no capacity to pay, a fine is the only appropriate penalty for those offences and the Court is obliged to impose it (see Aruli & Ors v Mitchell, unreported; FCt SCt of WA; Library No 990161A; 31 March 1999). Each appellant has prior convictions under the Act. On 23 September 1998 in the Court of Petty Sessions at Darwin, having been convicted of one charge under s 100 and one under s 101, Ishak was released on a recognizance to be of good behaviour. On 10 March 1998 Fakie was convicted of one charge under s 100 and released on a recognizance to be of good behaviour. In October of the same year, having been convicted of a similar charge, he was fined a total of $6,000 for both offences. Bearing in mind, on the one hand, that Ishak was the master of the fishing boat during the two expeditions in respect of which he appeared before the learned Magistrate but, on the other hand, that he had only one prior conviction whereas Fakie had two, it seems to me that the total of the fines to be imposed on the appellants should be the same.

11. Deciding upon the amount of the fines has its difficulties.  Because the appellants have no capacity to pay, the imposition of any fine necessarily results in each serving imprisonment by way of default.  It follows that, in order to ensure that the penalty fits the offending conduct, the Court must bear in mind the period which will be served by way of default.

12. Pursuant to s 15A of the Crimes Act the laws of the State concerning enforcement or recovery of fines apply to a person convicted in this State of an offence against a law of the Commonwealth until such time as the Commonwealth enacts an alternative enforcement (Aruli & Ors v Mitchell (supra)).  Until January 1995 in this State, by reason of the provisions of s 155 and s 167 of the Justices Act 1902 (WA), the period of imprisonment served by an offender who had not paid his fine was determined by dividing the amount owed by $25 and rounding up the result to the nearest whole number of days.  Thus, in October 1994, when imposing fines of $10,000 upon Indonesian fishermen of similar antecedents for offences similar to those in the present case, another Magistrate ordered that the offenders be imprisoned for a period not longer than 400 days until the fines were paid (see Akimin & Ors v Cooper, unreported; SCt of WA; Library No 950071; 24 February 1995).  When the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) came into operation in January 1995 the amount of the divisor specified in s 53(3) of that Act was $50. That amount applied in May 1998 when in similar circumstances another Magistrate imposed a fine of $12,500 with 250 days in default, a fine of $15,000 with 300 days in default and a fine of $20,000 with 400 days in default - sentences which were upheld by the Full Court in Aruli & Ors v Mitchell (supra).  On 12 March 1999 the amount of the divisor was increased by regulation to the present figure of $150.

13. Section 58(1)(b) of the Sentencing Act 1995 (WA), which came into operation on 4 November 1996, provides that when a Magistrate imposes a fine and is satisfied that the offender is about to leave the State and that his absence would defeat or materially prejudice the operation of the Fines, Penalties and Infringement Notices Enforcement Act then, pursuant to s 58(2), the Magistrate is empowered to make an order that the offender be imprisoned until the fine is paid for a period not longer than that set by the Magistrate. Service of that period discharges the offender from the obligation to pay the fine. In this case, it was appropriate for the learned Magistrate to use the provisions of s 58, because, under the provisions of the Migration Act 1958 (Cth) s 198(5), the appellants were to be returned to Indonesia "as soon as reasonably practicable". On the hearing of this appeal counsel for the respondent conceded that, although no particular default period is prescribed in s 58 of the Sentencing Act, the appropriate amount of the divisor in this case is $150.  Thus for the maximum fine of $27,500 the appropriate default period now would be 180 days and for fines of $25,000, which were imposed by the learned Magistrate in this case, the default period would be 167 days.

14. Bearing such matters in mind, and after taking into account the imprisonment to be served by the appellants for the assaults, I have concluded that the fines which the learned Magistrate imposed and the default periods which he has set are inappropriate and manifestly excessive. In my opinion the penalties for the offences under s 100 and 101 of the Fisheries Management Act should be as follows. In the case of Ishak, in respect of the two offences under s 100 there should be one fine of $10,000 and in respect of the two offences under s 101 there should be one fine of $5,000, representing a total of $15,000. In the case of Fakie, in respect of the two offences under s 100 there should be one fine of $15,000. In the case of each appellant there should be an order that in default of payment he serve a term of not more than 100 days imprisonment, cumulative upon the imprisonment imposed for the offences of assault. The sentence which I would impose should be taken to have begun on 21 November 1999, the day on which the appellants were taken into custody.

15. It follows that I would allow the appeal, set aside the fines imposed by the learned Magistrate and substitute the penalties which I have mentioned.