Haruma v McCarthy - [2008] NTSC 18

Haruma v McCarthy [2008] NTSC 18
PARTIES:HARUMA, Alimudin

v
McCARTHY, Kristin Rose

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA 64 of 2007 (20732015)
DELIVERED:  23 April 2008
HEARING DATE:  18 April 2008
PUBLISHED:  28 April 2008
JUDGMENT OF:  SOUTHWOOD J
APPEAL FROM:  A McGregor SM
CATCHWORDS:

JUSTICES APPEAL – Appeal against sentence – whether the sentences were manifestly excessive – whether the sentencing magistrate erred in not backdating the sentence of imprisonment to the time the appellant was apprehended – appeal allowed
Crimes Act 1914 (Cth) s 16A(2), s 16E, s 17A, s 20(1)(b),

Fisheries Management Act 1991 (Cth) s 100(2), s 100B(1); s 101AA(1)
Migration Act (Cth) s 5, s 164B(3); s 250
Sentencing Act s 63(5)

R v Zainudin and Another (2004) 190 FLR 149, followed
Freeman v Pulford (1988) 92 FLR 122; R v Leonard and Rose (unreported NSWCCA 9 May 1997); Mackay v Diman [1999] NTSC 96; Morgan v Schrapel (1983) 2 NTJ 523; Morris v Crown Office [1970] 2 QB 114; R v Nagas (1995) 5 NTLR 45; Smith v Spiers (1995) 128 FLR 242; Yusup v The Queen [2005] NTCCA 19, referred to

Cheatley v The Queen and Others (1972) 127 CLR 291; Samide v Munn; Letsoya v Mackay [2004] 142 A Crim R 434, considered
REPRESENTATION:
Counsel:
Appellant:C R A McDonald QC and M Johnson
Respondent:  C Dixon
Solicitors:
Appellant:Hunt and Hunt
Respondent:  Commonwealth Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Sou0804
Number of pages:  28

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Haruma v McCarthy [2008] NTSC 18

No JA 64 of 2007 (20732015)
BETWEEN:

HARUMA, Alimudin

Appellant:

AND:

McCARTHY, Kristin Rose

Respondent:

CORAM: SOUTHWOOD J
REASONS FOR JUDGMENT
(Delivered 23 April 2008)

On 11 December 2007 the Court of Summary Jurisdiction convicted the appellant of two offences. First, he was convicted of the offence that contrary to s 100B(1) of the Fisheries Management Act 1991 (Cth), on 2 November 2007, at a place in the territorial sea of Australia, which was in the Australian Fishing Zone, the appellant intentionally used a foreign boat, the Bintang Laut, with a length of less than 24 metres, having been reckless as to the facts that the boat was a foreign boat; the foreign boat was used for commercial fishing; and, at the time of its use, the foreign boat was in the territorial sea of Australia. The maximum penalty for this offence is $550,000 and/or imprisonment for two years. The maximum penalty that the Court of Summary Jurisdiction could impose was a fine of $6600 and/or 12 months imprisonment.
Secondly, the appellant was convicted of the offence that contrary to s 101AA(1) of the Fisheries Management Act 1991 (Cth), on 2 November 2007, at a place in the territorial sea of Australia, which was in the Australian Fishing Zone, the appellant intentionally had in his charge a foreign boat, the Bintang Laut, having been reckless as to the facts that the boat was a foreign boat; the boat was equipped with nets, traps or other equipment for fishing; and, at the time that it was so equipped, the foreign boat was in the territorial sea of Australia. The maximum penalty for this offence is $550,000 and/or two years imprisonment. The maximum penalty that may be imposed by the Court of Summary Jurisdiction was a fine of $6600 and/or 12 months imprisonment.
The Court of Summary Jurisdiction sentenced the appellant to five months imprisonment on each charge with effect from 11 December 2007; the sentences of imprisonment were made concurrent with each other; and under s 20(1)(b) of the Crimes Act 1914 (Cth), the appellant was ordered to be released, after serving two months in prison, on his own recognizance of $2000 to be of good behaviour for three years.
By convention, Article 73 of the United Nations Convention on the Law of the Sea, to which Australia is a signatory, prevents the Nations that are signatories to the convention from imposing custodial penalties for fisheries violations that occur in the exclusive economic zone of a particular country. However, Article 73 of the United Nations Convention on the Law of the Sea does not apply to fisheries violations that are committed in the territorial sea of Australia. The width of the territorial sea is limited to 12 nautical miles from the low water line along the coast of Australia as marked on the large-scale charts officially recognized by the Australian Government.
The appellant appeals against each of the sentences of imprisonment that was imposed on him by the Court of Summary Jurisdiction on the following grounds:
1.The sentencing magistrate failed to consider alternatives to imprisonment.
2.The sentences were manifestly excessive.
3.The sentencing magistrate erred in placing too much emphasis on personal and general deterrence; and, in doing so, he failed to take account of other matters which were relevant and known to the Court of Summary Jurisdiction.
4.The sentencing magistrate erred in not back dating the sentence of imprisonment to 2 November 2007 being the date when the appellant was apprehended by Australian customs and fisheries officers.
5.The sentencing magistrate failed to sufficiently take into account the periods of time that the appellant spent in immigration detention.
The facts
The facts are as follows.
The appellant is 25 years of age. He is a citizen of Indonesia. He lives with his parents and three younger siblings in Kupang. The appellant has been a fisherman for 10 years. Fishing is his livelihood. On 2 November 2007 he was the master of a foreign boat, the Bintang Laut.
The appellant’s parents suffer from health and heart problems. In November 2007 they were due to travel to Sulawesi for medical treatment and to buy medicine. Their travel was cancelled as a result of the appellant's apprehension by Australian Customs and Fisheries officers on 2 November 2007.
The appellant has a prior conviction for a fisheries offence. He was apprehended in Australian waters on 16 May 2003. He was convicted of an offence contrary s 100(2) of the Fisheries Management Act (Cth) and then released on a recognizance of $3000 to be of good behaviour for three years. Under s 33B of the Justices Act an order was made that if the recognizance was forfeited, the appellant was to be committed by warrant to prison for 30 days in default of payment. During the three years of his recognizance the appellant worked in the construction industry in Indonesia.
The appellant was in immigration detention from 2 November 2007 to 11 December 2007. After he was apprehended the appellant was either in detention under Clause 8 Schedule 1A of the Fisheries Management Act (Cth) and an enforcement visa issued under s 164B(3) of the Migration Act, or immigration detention under s 250 of the Migration Act 1958 (Cth). For the most part the appellant was in detention at the Northern Immigration Detention Centre in Darwin.
On 2 November 2007 the crew of the Australian customs vessel, Harvey Bay, received information from the crew of a Royal Australian Air Force aircraft about a suspected foreign boat being in the Australian Fishing Zone near Ashmore Reef. At 12:36 hours the foreign boat was detected on the automatic radar of Harvey Bay at a position approximately 39.5 nautical miles inside the Australian Fishing Zone and 7.95 nautical miles inside the 12 nautical mile territorial sea limit of Ashmore Reef.
The foreign boat was identified as a 14 metre long Indonesian Type 3 motorised trepang boat named Bintang Laut. There were six people on board including the appellant. At approximately 12:56 hours the commanding officer of the Australian customs vessel called the foreign boat on VHF radio and directed the foreign boat to stop. However, the foreign boat steered to the west and continued steaming and altering its course. A short time later the Australian customs vessel drew ahead of the foreign boat and steered across its bow causing the foreign boat to come to a stop.
At approximately 13:22 hours the foreign boat was boarded by Australian Customs and Fisheries officers at a location approximately 39.5 nautical miles inside the Australian Fishing Zone and 5.36 nautical miles inside the 12 nautical mile territorial sea limit of Ashmore Reef. The position is 193 nautical miles northwest of the Northern Territory coast.
The appellant and crew were compliant throughout the boarding process. The appellant was interviewed with the aid of Indonesian translation cards and the following information was ascertained from him. The home port of the foreign boat was Kupang. The foreign boat had sailed from Kupang. It took one day to sail from Kupang to the area where the foreign boat was apprehended.
No navigational equipment was located on board the foreign fishing vessel. However, during his interview by the Australian Customs and Fisheries officers, the appellant stated that the compass that he had used to navigate the foreign boat’s course from Kupang fell overboard as they were trying to get away from the Australian customs vessel.
Twenty kilograms of fresh trepang stowed with approximately 20 kg of salt were found in the forward section of the hull of the foreign boat. In addition a hooker, hosing with three second stage scuba-diving regulators attached, four 20 litre drums filled with fuel, an air compressor, two diesel engines that were warm to touch, one diving mask, one mobile telephone, one notebook and the foreign boat’s papers were found on the foreign boat. The equipment on board the foreign boat fell outside the definition of traditional fishing equipment and the foreign boat, which was motorised, was not a traditional fishing vessel.
The appellant was interviewed at the Northern Immigration Detention Centre on 15 November 2007. He made the following admissions. The appellant was in the area to earn his living. The purpose of the voyage was to search for trepang. He caught 20 kilograms of trepang. He intended to sell the trepang. He understood that traditional boats are allowed to fish in the area. Once it had been explained to him, the appellant understood that the area of sea where he was apprehended belonged to Australia. He attempted to get away from Customs “as [he] crossed the border.”
The Bintang Laut was disposed of by burning at sea. It was disposed of because the boat was infested with insects and it could not be readily towed.
During the hearing of the appeal counsel for the respondent, Ms Dixon, told the court that on 21 November 2007 the Australian Fisheries Management Authority decided to bring criminal proceedings against the appellant. A letter enclosing the prosecution file was written to the Commonwealth Director of Public Prosecutions on 21 November 2007 and the file was received by the office of the Commonwealth Director of Public Prosecutions on 22 November 2007.
The remarks of the sentencing magistrate
The sentencing magistrate made the following remarks when he sentenced the appellant:
Haruma Alimudin, Masrifin Arifin and Irfan Sirbur were all fishing in the Australian [Fishing] Zone on 2 November [2007]. The first named was a skipper and the other two were crew members.
All have been charged with using a foreign fishing boat in the territorial sea [of Australia]. The skipper has also been charged with having a foreign boat equipped for fishing. The Bintang Laut is a 14 metre trepang boat, a motorised trepang boat. There were six people on board including the captain.
They were discovered at a point about 39.5 nautical miles inside the zone and 7.9 miles inside the 12 mile territorial sea limit of Ashmore Reef. That is a well-known trepang area. And I understand there are times and places within what is called the Memorandum of Understanding Box where traditional fishermen can fish by traditional means.
This was not a traditional boat. They were called on to stop. They steered west and continued steaming and altering course but a customs vessel, Harvey Bay, which was chasing them, drew ahead and drove across the bow of the fishing boat and they stopped.
Now according to my précis the captain admitted that he was in the sea to earn a livelihood. They were searching for trepang and he admitted to catching 20 kilograms of trepang. According to the précis there was also about 40 kilograms of fresh trepang stowed with about 20 kilograms of salt found in the hull. Now I am not going to argue with that. Forty kilograms of fresh trepang may very well dry down to about 20 kilograms for all I know.
But he clearly was a relatively modern fisherman. He had scuba-diving regulators and an air compressor and a diving mask and a mobile telephone and diesel engines. He used to have a compass but apparently it fell overboard when they were trying to get away.
The captain is a man of about 25 years who has parents and siblings at home. His parents have had to put off medical attention for themselves because of his current situation.
Now his two crew, Masrifin Arifin is a 19 year old from Sulawesi and Irfan Sirbur is a 21 year old. I do not think I know where he is from. Irfan Sirbur has already been fined $2500 in this court as recently as August this year for an offence in July this year for using a foreign boat for commercial fishing. And Masrifin has a similar sort of record. He was fined $2500 on 7 August 2007 for an offence on 8 July 2007.
Haruma on the other hand has not been here since 2003, for an offence of using a boat to fish on 15 May [2003]. He was convicted and released without sentence on his own bond, a bond of $3000 to behave himself three years. And while we may congratulate him getting through those three years unscathed, we must also say that it was not the intention to encourage him just to take a break of three years and then come back again.
Haruma Alimudin cannot expect to come back here as a skipper and expect leniency. Indeed none of these men can really expect leniency in the circumstances. If they wish to fish for trepang by traditional methods there are ways of doing it and ways of finding out when and where to do it. In the meantime it is well-known that in some parts of the fishery trepang are becoming scarce.
Haruma Alimudin is convicted on each of these charges and sentenced to five months imprisonment on each with effect from today. He will be released after serving two months pursuant to s 20(1)(b) of the Crimes Act (Cth) on his own recognizance of $2000 to be of good behaviour for three years. Now that means that you have two months - he has not been in custody, he has only been in detention, right, so that doesn't count.
In fixing the five months [sentence] I have taken into account the period that he has been in detention. He now has two months to serve in prison and he has three months hanging over his head for the next three years. The court's plain intention is that he will find some other place to fish than the Australian Fishing Zone.
Ground 1 - the sentencing magistrate failed to consider alternative dispositions to imprisonment
In support of ground 1 of the appeal the appellant relied on two arguments which were based on s 17A of the Crimes Act (Cth). First, the appellant argued that the sentencing magistrate erred because he failed to consider alternative dispositions to a sentence of imprisonment. Secondly, the appellant argued, in the alternative, that the sentencing magistrate erred because he failed to state the reasons for his decision that no sentence other than a sentence of imprisonment was appropriate.
Section 17A of the Crimes Act (Cth) states:
(1) A court shall not pass a sentence of imprisonment on any person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.
(2) Where a court passes a sentence of imprisonment on a person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, the court:
(a)shall state the reasons for its decision that no other sentence is appropriate; and
(b) shall cause those reasons to be entered in the records of the court.
(3) The failure of a court to comply with the provisions of this section does not invalidate any sentence.
(4) This section applies subject to any contrary intention in the law creating the offence.
This ground of appeal cannot be sustained. The appellant’s first argument in support of this ground of appeal fails because there is no proper basis to find that the sentencing magistrate failed to properly consider all other available alternative sentences to a sentence of imprisonment. I accept the respondent’s submission that the fact that the sentencing magistrate did not expressly remark that he had considered all alternative sentences to a sentence of imprisonment and he has rejected them is no indication that he has not done so. The remarks of the sentencing magistrate are sufficient to infer that all alternative sentencing dispositions were considered by him and rejected. It is apparent from the whole of his remarks that the sentencing magistrate was satisfied that no sentence other than a sentence of imprisonment was appropriate in all of the circumstances of this case.
The sentencing magistrate gave considerable weight to specific and general deterrence. He considered that the offending was objectively serious. He noted the following. The appellant was the master of the foreign boat. There were six men on board the foreign boat. The appellant was a modern fisherman who had scuba-diving regulators, an air compressor, a diving mask and a mobile telephone and the foreign boat was equipped with diesel engines. The foreign boat was equipped with a compass. The offences were committed for commercial gain. There had been a significant incursion into the Australian Fishing Zone and the territorial sea of Australia and there were 20 kilograms of trepang on board the foreign boat.
The sentencing magistrate also took into account the fact that the appellant was a recidivist who had a prior conviction for breaching s 100(1) of the Fisheries Management Act 1991(Cth). He noted that the appellant had been previously convicted and placed on a good behaviour bond. Although the appellant had complied with the terms of his bond he had re-offended. Counsel for the appellant in the Court of Summary Jurisdiction submitted that the appellant should be fined. It is obvious that this submission was rejected by the sentencing magistrate. He noted that the appellant’s crew were also recidivists who had been recently fined for fishing in Australian waters.
Senior Counsel for the appellant, Mr McDonald QC, also quite fairly and properly conceded during the course of the appeal that a sentence of imprisonment was a sentencing disposition that fell within the range of sentencing dispositions that may be imposed on the appellant in this case.
In relation to the second argument in support of this ground of appeal, Mr McDonald QC stated that a failure to comply with s 17A(2) was an error of law upon which this court could rely to set aside the sentences of imprisonment that were imposed on the appellant by the Court of Summary Jurisdiction. Mr McDonald QC submitted that the purpose of s 17A(3) of the Crimes Act (Cth) was not to restrict this court’s jurisdiction on appeal. The court may review a sentence on appeal where there has been a failure to comply with s 17A(2): Morgan v Schrapel (1983) 2 NTJ 523. The purpose of s 17A(3) was to ensure that non-compliance with s 17A(2) does not mean that the sentence of imprisonment is a nullity. The sentence of imprisonment is enforceable and cannot be disregarded by an offender until it is set aside on appeal: Smith v Spiers (1995) 128 FLR 242; Freeman v Pulford (1988) 92 FLR 122 at 127 – 128; Morris v Crown Office [1970] 2 QB 114 at 122 – 123.

While I accept the appellant’s argument as to the purpose and effect of s 17A(3) of the Crimes Act (Cth), I do not find that the sentencing magistrate’s failure to comply with s 17A(2) demonstrates any error in the way that he exercised his sentencing discretion. It is not the primary duty of a sentencing magistrate to elaborate upon each of the sentencing options which he has rejected; rather it is his duty to expose the reasons which lead to the selection of the chosen sentencing disposition: R v Leonard and Rose (unreported NSWCCA 9 May 1997) per Grove J. Sufficient remarks were made by the sentencing magistrate to expose his reasons for imposing sentences of imprisonment on the appellant thereby rejecting all other sentencing options. The sentencing magistrate did not fail to give reasons for imposing sentences of imprisonment on the appellant.
Given the seriousness of the appellant’s offending and his prior criminal history, considerations of both general and personal deterrence were important factors in sentencing the appellant. The importance of specific and general deterrence and the national interest in maintaining a sustainable fishery and protecting the marine environment in the area of Ashmore Reef meant that the learned magistrate could be satisfied that no sentencing disposition other than a sentence of imprisonment was appropriate in the circumstances of this case.
Ground 3 - The sentencing magistrate erred in placing too much emphasis on personal and general deterrence and, in doing so, has failed to take into account other matters which were relevant and known to the court.
As to ground 3 of the appeal, the appellant submits that the sentencing magistrate did not take into account the various subjective factors listed in s 16A(2) of the Crimes Act (Cth) despite the fact that Ms Tregear had included such information in her plea in mitigation on behalf of the appellant. The appellant argued that the sentencing magistrate did not take into account the appellant's character, antecedents, cultural background, or the probable effect that a sentence of imprisonment would have on his family or dependants. Mr McDonald QC stated that the sole concern of the sentencing magistrate seems to have been to deter the appellant and others from fishing in that part of the territorial sea of Australia that lies within the Australian Fishing Zone.
In my opinion this ground of appeal also fails. There was very little information put before the sentencing magistrate about the appellant's character, antecedents and cultural background. The hardship suffered by his family was no different to the hardship that any family may suffer when a relative is sentenced to a term of imprisonment. There was no information placed before the sentencing magistrate to establish that the hardship suffered by his family was considerably more severe than the deprivation suffered in normal circumstances as a result of the imprisonment of a family member. Such hardship is not normally a circumstance that the sentencing magistrate may take into account when sentencing an offender: R v Nagas (1995) 5 NTLR 45 at 53 to 54. The information that was before the court did not establish much in the way of mitigation. The sentencing magistrate did take the subjective circumstances of the appellant into account. He imposed an aggregate sentence of five months imprisonment which was suspended after the appellant had served two months in prison.
As to the weight to be given to specific and general deterrence the following factors should be noted. The maximum penalties imposed under s 100B and s 101AA of the Fisheries Management Act 1991 (Cth) demonstrate that the Australian Parliament regards these offences as serious offences. The offending was objectively serious and the appellant was the master or captain of the foreign boat and he was a recidivist. Despite his prior punishment the appellant again contravened Australian law and for a period of time he tried to evade being apprehended by the Australian Customs and Fisheries officers. He did not immediately bring the foreign boat to a stop when called on to do so by the crew of the Australian customs vessel.
In all of the circumstances of the case, including the paucity of the information about the appellant’s circumstances, the subjective circumstances of the appellant are not sufficient to entitle him to any more leniency than he was accorded by the sentencing magistrate. The sentencing magistrate was entitled to give considerable weight to specific and general deterrence.
The importance of general deterrence in the protection of the Australian Fishing Zone is well recognized, particularly where substantial profits can be made by persons engaged in the commercial fishing industry: Yusup v The Queen [2005] NTCCA 19; Mackay v Diman [1999] NTSC 96. I accept the respondent’s submissions that courts have continually reinforced the need for deterrent penalties in order to protect Australian fisheries from foreign fishing boats. In Samide v Munn; Letsoya v Mackay [2004] 142 A Crim R 434 at 438 Riley J stated:
The offences to which the appellants pleaded guilty are serious. The maximum penalties imposed by the legislation reflect that fact. The courts have repeatedly referred to the need to protect the resources in the Australian Fishing Zone. Comment has been made as to the expanse of waters concerned and the difficulty and expense of detecting and combating illegal fishing in that area. The need for deterrent sentences has frequently been stated. In this case, his Worship regarded the offending as more serious because of the depth of the incursion into Australian waters in circumstances where those incursions were for the purpose of commercial fishing. The offences are prevalent. In my view, his Worship correctly concluded that deterrent sentences were appropriate.
In Cheatley v The Queen and Others (1972) 127 CLR 291 at 296 Barwick CJ stated:
The protection of the fishing grounds of the nation from foreign exploitation is somewhat akin to the protection of the country from smuggling. Drastic action in protection of the country's interests in each instance may be regarded as warranted, indeed, if not to be expected; each is an area where pecuniary penalties are unlikely to provide adequate protection.
Personal and general deterrence are matters to which significant weight should be given in cases such as this. Laws such as this are enacted in the national interest. The purpose of the Fisheries Management Act 1991 (Cth) is to protect the marine environment and maintain a sustainable fishery. The purpose of the legislation is to ensure that the Australian territorial sea is not plundered by foreign boats. Such activities have the potential to do great harm to Australian fisheries and to the marine environment.
Ground 4 – The sentencing magistrate erred in not backdating the sentence of imprisonment to 2 November 2007 when the appellant was apprehended by Australian customs and fisheries officers.
The appellant argued that under s 16E(1) and (2)(b) of the Crimes Act (Cth) and s 63(5) of the Sentencing Act the Court of Summary Jurisdiction had the power to back date the appellant’s sentence of imprisonment to 2 November 2007 which is the date that the appellant was apprehended.
Section 16E of the Crimes Act (Cth) states:
Commencement of sentences
(1)Subject to subsections (2) and (3), the law of a State or Territory relating to the commencement of sentences and of non-parole periods applies to a person who is sentenced in that State or Territory for a federal offence in the same way as it applies to a person who is sentenced in that State or Territory for a State or Territory offence.
(2) Where the law of a State or Territory has the effect that a sentence imposed on a person for an offence against the law of that State or Territory or a non-parole period fixed in respect of that sentence:
(a)may be reduced by the period that the person has been in custody for the offence; or
(b)is to commence on the day on which the person was taken into custody for the offence;
the law applies in the same way to a federal sentence imposed on a person in that State or Territory or to a non-parole period fixed in respect of that sentence.
(3) Where the law of a State or Territory does not have the effect mentioned in subsection (2), a court (including a federal court) in that State or Territory that imposes a federal sentence on a person or fixes a non-parole period in respect of such a sentence must take into account any period that the person has spent in custody in relation to the offence concerned.
Subsection 63(5) of the Sentencing Act (NT) states:
Where an offender has been in custody on account of his or her arrest for an offence and the offender is convicted of that offence and sentenced to imprisonment it may be ordered 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.
The appellant argued that the word “custody” in each of the above sections should be given its ordinary meaning and its ordinary meaning included detention under Clause 8, Schedule 1A of the Fisheries Management Act (Cth) and s 250 of the Migration Act. Mr McDonald QC said the appellant had been held in custody in relation to the offences for which he was sentenced by the Court of Summary Jurisdiction from the time of his apprehension on 2 November 2007 until he was imprisoned on 11 December 2007. In essence, he submitted that the foreign boat was stopped because it was in the territorial sea of Australia and the appellant and the crew of the foreign boat were apprehended because the customs and fisheries officers had reasonable grounds to believe they were not Australian citizens and they were on a foreign boat when it was used in the commission of offences contrary to s 100B and s 101AA of the Fisheries Management Act (Cth). The appellant was then detained in a detention centre under s 250 of the Migration Act for the purpose of making a decision whether to prosecute him under s 100B and s 101AA of the Fisheries Management Act, instituting the prosecution and for the purpose of the prosecution.
Clause 8 of Schedule 1A of the Fisheries Management Act (Cth) states:
(1) An officer may detain a person in Australia or a Territory for the purposes of determining during the period of detention whether or not to charge the person with an offence against section 99, 100, 100A, 100B, 101, 101A, 101AA, 101B, 105E or 105F or an offence against section 6 of the Crimes Act 1914 relating to such an offence, if the officer has reasonable grounds to believe that the person:
(a) is not an Australian citizen or an Australian resident; and
(b) was on a foreign boat when it was used in the commission of such an offence.
(2) Subclause (1) does not authorise an officer to use more force in detaining a person than is reasonably necessary.
(3) Subclause (1) has effect subject to section 87E.
Section 250 of the Migration Act states:
(1) In this section:
suspect means a non-citizen who:
(a) travelled, or was brought, to the migration zone; and
(b) is believed by an authorised officer on reasonable grounds to have been on board a vessel (not being an aircraft) when it was used in connection with the commission of an offence against a law in force in the whole or any part of Australia.
(2) For the purposes of section 189, an officer has a suspicion described in that section about a person if, but not only if, the person is a suspect.
(3) A non-citizen detained because of subsection (2) may be kept in immigration detention for:
(a) such period as is required for:
(i)the making of a decision whether to prosecute the suspect in connection with the offence concerned; or
(ii) instituting such a prosecution; and
(b) if such a prosecution is instituted within that period—such further period as is required for the purposes of the prosecution.
(4) Without limiting the generality of paragraph (3)(b), the period that is required for the purposes of a prosecution includes any period required for:
(a)any proceedings in connection with the prosecution; and
(b)the serving of any custodial sentence imposed because of the prosecution; and
(c) the institution of, and any proceedings in connection with, any appeal from any decision in relation to the prosecution.
(5) If the period for which a person may be kept in immigration detention under subsection (3) ends, he or she:
(a)must, unless he or she has become the holder of a visa, that is in effect, to remain in Australia, be expeditiously removed from Australia under section 198; and
(b) may, at the direction of an authorised officer, continue to be detained under section 189 until so removed.
Under s 5 of the Migration Act “immigration detention” means:
(a)being in the company of, and restrained by:
(i) an officer; or
(ii) in relation to a particular detainee—another person directed by the Secretary to accompany and restrain the detainee; or
(b)being held by, or on behalf of, an officer:
(i) in a detention centre established under this Act; or
(ii) in a prison or remand centre of the Commonwealth, a State or a Territory; or
(iii)in a police station or watch house; or
(iv)in relation to a non-citizen who is prevented, under section 249, from leaving a vessel—on that vessel; or
(v)in another place approved by the Minister in writing;
but does not include being restrained as described in subsection 245F(8A), or being dealt with under paragraph 245F(9)(b).
Given the text of each of the above provisions there is considerable force in the appellant’s submissions. Support is found for the appellant’s argument in the decision of this court in R v Zainudin and Another (2004) 190 FLR 149.
In his reasons for decision Mildren J stated the following at 154:
The defendant was not remanded in custody until 29 November, although the prosecutor did apply to have him remanded in the Court of Summary Jurisdiction. So all in all the defendant has spent almost 11 weeks in detention in one form or another.
The importance of this is whether or not I should take this period into account either in imposing fines or when considering whether to back date any sentence of imprisonment which I might impose in respect of count 3.
The Crown's position is that I cannot back date the sentence beyond the date that the prisoner was remanded in custody, but that I can take into account the period of detention in fixing any head sentence, but not when deciding on the amount of a fine. So far as the backdating of sentence is concerned the Crown's position is consistent with previous authority in this Court, where on each occasion that I have been able to discover, a judge of this Court has not backdated the sentence beyond the date on which the person has been remanded in custody.
On each occasion where the matter has been reported and has been brought to my attention the relevant judge has said that he has taken into account the period of detention in fixing the period of the sentence.
His Honour then went onto state at 155 – 156:
Clearly being held in detention is the same, for all practical purposes, as being held in remand so far as the detainee is concerned. Considerations of justice require that it be taken into account in a proper case. However, I accept that if it is to be taken into account in fixing a sentence of imprisonment, whether or not the sentence is backdated, it would be wrong to take it into account again when fixing the amount of any fine.
The other question is whether the sentence can be backdated. There is no doubt s 63(5) of the Sentencing Act applies to Commonwealth offences. That provision provides:
Where an offender has been in custody on account of his or her arrest for an offence and the offender is convicted of that offence and sentenced to imprisonment it may be ordered 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.
The submission of Mr Berkley for the defendant is that that section applies in this case, having regard to the purposes of the section (which I think is to ensure that justice is done and that sentences are properly enunciated) and also having regard to the position of common law and the scrutiny under which detention is held or should be held by the courts. I interpret Mr Berkley's submission as being one where I should give s 63(5) as broad an interpretation as possible.
There can be no doubt that the defendant was in custody when he was held in detention. Now whether the detention was under the Fisheries Act or the Migration Act, he was not free to go and he would have committed an offence if he had escaped. This kind of detention is different from the kind of immigration detention used to hold illegal immigrants because they have the right under s 198 of the Migration Act to ask the Minister to remove them from Australia and then they must be removed as soon as is reasonably practicable. Section 198 does not apply to prisoners held under and detained under s 250.
In my opinion there is no doubt that the prisoner was arrested for an offence within the meaning of s 63(5). An arrest occurs whenever it is made plain by what is said or done that a person is not free to go. In Donaldson v Broomby (1982) 60 FLR 124 at 126 Deane J said:
Arrest is the deprivation of freedom. The ultimate instrument of arrest is force.
Here the arrest, in my opinion, occurred no later than the moment the defendant was handcuffed. It is not to the point whether or not the arrest was lawful. In my opinion s 63(5) does not distinguish between lawful and unlawful arrests. Nor is the fact that no formal arrest was made by the officer concerned, in the sense that he at no stage apparently told the defendant that he was being arrested or charged with an offence, relevant.
The officer had the power to arrest the defendant under s 84(1)(j) of the Fisheries Act. He could hardly say he held no belief that the defendant had not committed an offence against the Act because in order to lawfully board the vessel, the officer must have held a reasonable belief that the vessel was used, or intended to be used, for fishing in the Australian Fishing Zone, which is in itself an offence unless the vessel is licensed: see ss 84(1)(a) and 100(1) of the Fisheries Act.
I therefore conclude that the offender was arrested for an offence or offences, but the question is for what offence or offences. The answer to that seems to me to be that he was arrested for offences against ss 100A(1) and 101A(1) of the Fisheries Act. However, I am not persuaded that he was arrested for a breach of s 149.1 of the Criminal Code Act. The officer's powers of arrest under s 84(1)(j) relate only to arrests for offences against the Fisheries Act. The power to detain under s 84(1)(ai) of the Fisheries Act does not include a power to detain for a breach of s 149.1.
The conclusion I reach, reluctantly, is that the power to backdate a sentence of imprisonment in this case cannot be used in respect of the offence against s 149.1, but nevertheless considerations of justice require that I take into account the time already spent in detention.
It seems that the only reason that Mildren J did not back date the sentence of four months imprisonment that he imposed on Mr Zainudin for the offence that he committed contrary to s 149.1 of the Criminal Code (Cth) was that he found that Mr Zainudin was not arrested or detained for that offence, rather he was arrested and detained for the offences under the Fisheries Management Act (Cth).

Counsel for the respondent, Ms Dixon, argued that R v Zainudin and Another (supra) can be distinguished from this case because in this case the appellant was not arrested for an offence. He was not arrested under s 84(1)(j) of the Fisheries Management Act 1991 (Cth). Instead, the appellant was apprehended under clause 8 Schedule 1A of the Fisheries Management Act. A person may be apprehended under clause 8 for the purposes of determining during the period of detention whether or not to charge the person with an offence if the officer has reasonable grounds to believe that the person is not an Australian citizen or an Australian resident and was on a foreign boat when it was used in the commission of an offence under the Act. It is not necessary for an officer to have reasonable grounds to suspect that a person has committed an offence. Subsection 63(5) only has application where an offender has been in custody on account of his or her arrest for an offence and the offender is convicted of that offence.
I do not accept the respondent’s submission. The appellant was taken into custody and placed on board the Harvey Bay. The foreign boat was burnt at sea. In circumstances where a person is ultimately prosecuted and convicted of offences against the Fisheries Management Act 1991 (Cth), being detained under clause 8 Schedule 1A of the Fisheries Management Act 1991 (Cth) is the equivalent of being arrested. Once the person is detained the person is no longer a free person, he cannot asked to be released from Australia as soon as reasonably practical, it is necessary that the customs and fisheries officers have reasonable grounds to believe that the foreign boat was used in the commission of an offence under the Act and the person is placed in custody for the purpose of being questioned about offences under the Act with the intention of prosecuting the person under the Act.
In my opinion, for the reasons given by Mildren J in R v Zainudin and Another (supra), which I apply, “custody on account of his or her arrest for an offence” for the purposes s 63(5) of the Sentencing Act (NT) includes the period following the appellant’s detention on the foreign boat and his detention at the Northern Immigration Detention Centre in Darwin. I accept the appellant’s submissions in this regard.
I find that the sentencing magistrate erred in not backdating the sentences of imprisonment that he imposed on the appellant. I would allow the appeal on this ground.
Ground 5 - The sentencing magistrate failed to sufficiently take into account the periods of time that the appellant spent in immigration detention.
In the alternative to ground 4 of the appeal, the appellant submitted that the learned magistrate failed to sufficiently take into account the periods of time that the appellant spent in immigration detention. As ground four of the appeal has been upheld it is not necessary to decide this ground of appeal.
I note that while the sentencing magistrate did take into account the period of time that the appellant spent in immigration detention, he did not state the extent to which he took this factor into account when exercising his sentencing discretion to fix the head sentences that he imposed on the appellant.
Ground 2 – The sentences were manifestly excessive.
I find that the sentences of imprisonment that were imposed on the appellant by the sentencing magistrate were excessive because he erred by not backdating the sentences of imprisonment to 2 November 2007 being the date when the appellant was apprehended. But for this error the exercise of the sentencing discretion by the sentencing magistrate would not have miscarried. He was entitled to give considerable weight to specific and general deterrence. The appellant was a recidivist and the level of his offending was escalating.
Re-sentence
I turn to re-sentence the appellant. But for the fact that the appellant remained in prison until 10 February 2008, I would have imposed a sentence of five months imprisonment, which I would have back dated to 21 November 2007 to reflect the time that the appellant had already been in custody for the offences for which he has been convicted, and I would have ordered that the offender be released on 20 January 2008 under s 20(1)(b) of the Crimes Act (Cth) on his recognizance of $2000 to be of good behaviour for three years.
Given that the appellant was released from prison on 10 February 2008, I make the following orders:
1.The appeal is allowed on grounds 2 and 4. Grounds 1 and 3 of the appeal are not made out and it was not necessary to consider ground 5.
2.The sentences of five months imprisonment that were imposed on the appellant by the Court of Summary Jurisdiction for counts 1 and 2 of the Information for an Indictable Offence are set aside.
3.For count 1 of the Information for an Indictable Offence I impose a sentence of four months and one week’s imprisonment on the appellant. For count 2 of the Information for an Indictable Offence I impose a sentence of four months and one week’s imprisonment on the appellant.
4.Each sentence of imprisonment that I have imposed on the appellant is back dated to 21 November 2007 (being the date on which the Australian Fisheries Management Authority determined to proceed against the appellant) to reflect the time that the offender was in custody for each offence.
5.I order that the appellant is to be released on 10 February 2008 being the date when the appellant was released from prison.
6.I confirm the order of the Court of Summary Jurisdiction that under s 20(1)(b) of the Crimes Act (Cth) the appellant is released on his own recognizance of $2000 to be of good behaviour for three years.
7.I make no order as to the costs of the appeal.
I have reduced each of the head sentences of imprisonment that I imposed on the appellant by three weeks to reflect the fact that the offender was released from prison on 10 February 2008 rather than 20 January 2008.
I have back dated each of the sentences of imprisonment to 21 November 2007 as this was the date on which the Fisheries Management Authority determined to proceed against the appellant and from this date until the appellant was sentenced by the Court of Summary Jurisdiction the appellant was kept in detention under s 250 of the Migration Act (Cth) for the purpose of instituting the prosecution against the appellant and for the purpose of the prosecution of the appellant for the offences for which he was convicted by the Court of Summary Jurisdiction.
Having considered all other available sentences, I am satisfied for the reasons given in pars [24], [25], [29], [31] to [36] and [54] above that no sentence other than the sentences of imprisonment that I have imposed on the appellant are appropriate in all the circumstances of the case. Such offences as these are prevalent, the appellant was a recidivist and the level of the offences committed by the appellant was escalating.
This means that the appellant still has six weeks and four days imprisonment hanging over his head should he re-offend during the three year period from 11 December 2007.

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