Jamaludin v Commonwealth Director of Public Prosecutions - [2006] SASC 104

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
JAMALUDIN & ORS v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
Judgment of The Honourable Justice Duggan
12 April 2006
PRIMARY INDUSTRY - FISH - OFFENCES - FOREIGN VESSELS
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - PLEA OF GUILTY, CONTRITION AND CO-OPERATION - ASSISTANCE TO AUTHORITIES AND CO-OPERATION
Appeal against sentence imposed by magistrate - eight appellants were crew members aboard Indonesian fishing vessel detected in Australian Fishing Zone - appellants took various measures to prevent boarding and apprehension - appellants acted in a violent, aggressive and intimidating manner - vessel pursued for over six hours - second vessel required to assist in pursuit and boarding - appellants compliant once vessel boarded - appellants pleaded guilty at first opportunity, magistrate adopted starting point of imprisonment for nine months which was reduced to five months for time spent in detention - further reduction of one month for guilty pleas - sentence of one appellant reduced to two months imprisonment on account of family circumstances - whether sentences manifestly excessive - whether sufficient reduction for time spent in detention - whether sufficient reduction for guilty pleas - sentence not manifestly excessive - sufficient reduction made for time spent in detention - insufficient reduction for guilty pleas – Held: appeal allowed - appellants' sentences to be reduced by one month.
Criminal Code Act 1995 (Cth) s 149.1; Fisheries Management Act 1991 (Cth) s 108, referred to.

JAMALUDIN & ORS v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
[2006] SASC 104
Magistrates Appeal

DUGGAN J. The eight appellants pleaded guilty to obstructing an officer performing duties under the Fisheries Management Act 1991 (Commonwealth) (“the Act”). The offence was contrary to s 108(1)(f) of the Act. It consisted of a course of conduct over a period in excess of six hours on 17 October 2005.
The appellants were members of the crew of the Sepakat Jaya 1 (the vessel), an Indonesian fishing vessel. The vessel was detected in the Australian Fishing Zone in the Arafura Sea by radar. A series of attempts to board the vessel were made by a boarding crew from the Australian Customs Vessel, the Roebuck Bay. The crew took various measures to prevent apprehension and their actions in doing so formed the basis of the offence charged.
After the vessel was boarded, the appellants were taken into custody. Prior to being sentenced, they were kept in detention for approximately four months, mostly in the Baxter Detention Centre.
The appellants pleaded guilty to the offence in the Adelaide Magistrates Court on 15 February 2006. The maximum penalty for the offence is imprisonment for 12 months. The magistrate considered that the appropriate starting point for consideration of penalty was imprisonment for nine months. He then reduced that to five months after taking into account the four months spent in detention. After allowing for a further reduction on account of the pleas of guilty, he reduced the sentence to imprisonment for four months in the case of all appellants except the appellant Utomo. Considerations relating to this appellant’s family led the magistrate to sentence him to imprisonment for two months. The sentences commenced on the day on which the appellants were sentenced.
The appellants have appealed on the grounds that the sentences were manifestly excessive and that there was insufficient reduction on account of the pleas of guilty.
An agreed statement of facts was tendered before the magistrate. The following is a summary of those facts.
As the Customs vessel approached the fishing vessel, a boarding party was dispatched in a smaller craft. The boarding party came alongside the vessel, signalled for it to slow down and requested to go aboard. The appellants reacted in an aggressive and threatening manner. They threw lead weights at the boarding party, striking one on the chest and narrowly missing the head of another. The appellant Jamaludin waved a bottle filled with liquid at the boarding party and attempted to light a wick protruding from the bottle. The appellant Mahmud Kehk threw a small axe at the boarding party. Other appellants waved a wooden pole and a machete at the boarding party in a menacing fashion. Burning wooden poles were positioned along the sides of the vessel to hamper the boarding party.
The vessel failed to stop despite warning shots being fired across her bow.
A number of attempts were made to come alongside the vessel and, eventually, the aid of HMAS Armidale was enlisted. The Armidale also fired shots across the vessel’s bow, but to no avail.
Eventually, boarding parties from both the Customs vessel and Armidale succeeded in boarding the vessel. By this time, the crew members were compliant. The boarding party observed knives, machetes, gaffs and lead weights on the deck. Nine “Molotov cocktails” were also found on the vessel.
Enough has been said to indicate that this was a particularly serious offence.
Section 108 of the Act covers a wide range of conduct involving obstruction of officers enforcing the Act, but the present case must be placed in the category of the more serious offences against the section. The officers were required to perform a difficult task made dangerous by the actions of the appellants.
I have been referred to the sentences imposed in a number of cases involving resistance to officers attempting to board vessels involved in illegal fishing activities. A number of these prosecutions were for offences contrary to s 149.1 of the Criminal Code Act 1995 (Commonwealth), which provides for an offence of obstructing commonwealth public officials. However, none of these cases sets a tariff for offences of this nature and comparison is made difficult by reason of the different circumstances arising in each case. Suffice to say that there were a number of factors in the present case which have been recognised as aggravating factors in other cases. They include the length of time over which the obstruction took place, the use of poles and other implements to prevent boarding, threats of violence and acts which placed members of the boarding crew in a situation of danger.
It must be acknowledged that the appellants are first offenders in this respect and that they co-operated after their vessel was boarded. However, it is my view that the starting point for sentencing was not outside the appropriate range for an offence involving the aggravating features to which I have referred.
I do not accept that it resulted in a sentence which was manifestly excessive.
The extent to which the period spent in detention was to be taken into account in reducing the penalty was a matter for the discretion of the magistrate. As I have pointed out, he allowed for a reduction of four months by reason of this consideration.
The next ground of appeal relates to the reduction allowed for the pleas of guilty. There is some ambiguity in the magistrate’s remarks concerning this aspect. He appears to have allowed a reduction of one month. If this is compared with the starting point of imprisonment for nine months, it represents a reduction of 11 per cent. It is possible, as counsel for the respondent properly conceded, that the magistrate intended to allow for a reduction of 20 per cent for the pleas of guilty, but calculated it by reference to the period of five months and without reference to the four months spent in detention.
However that may be, I am satisfied that the reduction of one month for the pleas of guilty was too low. After apprehension, the appellants co-operated in every respect. They pleaded guilty at the first reasonable opportunity and agreed in all respects with the statement of facts presented by the prosecution. A reduction of two months (approximately 20 per cent of the starting point of nine months) would have been appropriate in the light of the early pleas of guilty and the level of co-operation.
In summary, I am of the view that the starting point for the sentences was not manifestly excessive, but that the allowance for the pleas of guilty was inadequate.
The appeals against sentence will be allowed and the sentence imposed on each appellant will be reduced by one month.