Isak v Garbellini - [2006] WASC 50

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: ISAK -v- GARBELLINI [2006] WASC 50

CORAM: MCKECHNIE J

HEARD: 28 FEBRUARY 2006

DELIVERED : 28 FEBRUARY 2006

FILE NO/S: SJA 1123 of 2005

BETWEEN: PITER ISAK
Appellant
AND
LESLIE PETER GARBELLINI
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE I G BROWN
File No  :PE 52901 of 2005, PE 52902 of 2005

Catchwords:

Criminal law and procedure - Sentence - Fishing without foreign fishing licence - Global fine - Whether excessive - Appeals - Reasonable prospects of success

Legislation:

Fisheries Management Act 1991 (WA)

Result:

Leave to appeal refused

Category: A

Representation:

Counsel:

Appellant: Mr D J McKenzie
Respondent: Mr G T J Farley

Solicitors:

Appellant: Legal Aid of Western Australia
Respondent: Commonwealth Director of Public Prosecutions

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

Djou v Commonwealth Department of Fisheries [2004] WASCA 282
Samuels v State of Western Australia [2005] WASCA 193

Case(s) also cited:

Nil

MCKECHNIE J: This is an application for leave to appeal. I am grateful to the Commonwealth for responding to the application for leave to appeal so that I may deal with it today. I stress that it is an application for leave to appeal, not the appeal itself. Under the Criminal Appeals Act 2004 (WA) s 9 I can only grant leave if I am satisfied that the ground I am considering has reasonable prospects of success as described: Samuels v State of Western Australia [2005] WASCA 193. It is that test that I apply.
There are three grounds of appeal. Ground 3 is abandoned. That leaves grounds 1 and 2.

Ground 1

"1.The Learned Magistrate erred in law by imposing sentences which were manifestly excessive in all the circumstances of the convictions, including that:
1.1the Appellant pleaded guilty at the first opportunity; and
1.2the Appellant had no capacity to pay the fine."

I do not consider there are reasonable prospects of success on the first particular. Clearly the Court below took the plea of guilty into account. I say that because that is what his Honour said he did. The precise amount by which he took it into account was not identified. I hesitate to apply any rough rule of thumb that may apply in relation to sentences of imprisonment to fines, but clearly a plea of guilty should always be taken into account and this one was.
As to the second particular, it appears the Magistrate was referred to Djou v Commonwealth Department of Fisheries [2004] WASCA 282. In that case Roberts‑Smith J set out at [48] a number of propositions he had distilled from the authorities. He noted at (7):
"But where a fine is otherwise properly imposed, immediate imprisonment in default of payment may be ordered even though it is known that the offender will serve a default term by reason of his not being permitted to be in the jurisdiction in order to pay the fine by other means."
I…

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 Isak v Garbellini

Details

AGLC: Isak v Garbellini [2006] WASC 50
Case: [2006] WASC 50
Decision Date: 28 FEBRUARY 2006

CaseChat Overview and Summary

The case of Isak v Garbellini arose from a dispute where the applicant, Isak, appealed against the sentence imposed for fishing without a foreign fishing licence. The sentence involved a global fine that Isak argued was excessive. The appeal was heard in the Supreme Court of New South Wales. The legal issues in this case centred around whether the global fine imposed on Isak was excessive and whether the applicant had reasonable prospects of success on appeal. The court had to consider the principles of sentencing and proportionality in the context of a global fine for a fishing licence offence.

The court began its analysis by examining the principles of sentencing, particularly the need for a sentence to be proportionate to the offence. It considered the maximum penalty for the offence and the relevant legislative framework. The court also evaluated whether the fine was appropriate given the circumstances of the case, including the nature and seriousness of the offence, the offender's culpability, and any other relevant mitigating or aggravating factors. The court found that the fine imposed was not excessive, taking into account the maximum penalty, the offender's culpability, and the need to deter similar offences. The court also determined that Isak did not have reasonable prospects of success on appeal because the sentence was proportionate and within the legislative limits.

The court dismissed Isak's appeal against sentence and denied leave to appeal against the conviction. The court held that the global fine imposed was not excessive and that Isak did not have reasonable prospects of success on appeal. The decision underscored the importance of proportionality in sentencing and the need to consider all relevant factors in determining an appropriate sentence. The court's reasoning and outcome reflect the balance between punitive measures and the principles of justice in sentencing for minor offences.

Orders