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…

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 Haruma v McCarthy

Details

AGLC: Haruma v McCarthy [2008] NTSC 18
Case: [2008] NTSC 18
Decision Date: 23 April 2008

CaseChat Overview and Summary

Haruma has appealed against the sentences of imprisonment imposed on him by the Court of Summary Jurisdiction, arguing that the magistrate erred in not considering alternatives to imprisonment, that the sentences were manifestly excessive, and that the magistrate placed too much emphasis on personal and general deterrence. Additionally, Haruma claims that the magistrate failed to backdate the sentence of imprisonment to the date of his apprehension and did not sufficiently take into account the time he spent in immigration detention. The appeal raises questions about the adequacy of the sentencing process, the appropriateness of the sentences, and the handling of detention periods.

The court needed to decide whether the sentencing magistrate properly exercised his discretion, particularly whether he sufficiently considered alternatives to imprisonment, the excessiveness of the sentences, and the relevance of the appellant's time in immigration detention. The court also had to determine whether the magistrate correctly backdated the sentences to the date of apprehension, and whether the sentences adequately reflected the principle of general and specific deterrence.

The court found that the sentencing magistrate erred in not backdating the sentences to the date of apprehension, and that this error rendered the sentences excessive. The court emphasised that while the magistrate was entitled to give considerable weight to deterrence, the error in not backdating the sentences led to a miscarriage of the sentencing discretion. The court also noted that although the magistrate considered the time spent in immigration detention, he did not explicitly state the extent of this consideration. However, this did not necessitate a decision as the error in backdating had already led to the sentences being set aside.

The appeal was allowed on the grounds that the sentences were manifestly excessive due to the failure to backdate them. The sentences of five months imprisonment were set aside and re-sentenced to four months and one week for each count, backdated to the date of apprehension. The court also ordered that the appellant be released from imprisonment on the date he was actually released, and that he be released on his own recognizance of $2000 to be of good behaviour for three years. The court made no order as to the costs of the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.