Legal Research
Cases
Perez v The Queen

Perez v The Queen

Case [1999] WASCA 262 22 November 1999

No judgment structure available for this case.

Type to search within this case.

PEREZ -v- R [1999] WASCA 262

Reported Decision:	(1999) 21 WAR 470
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 262
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:158/1998	Heard:	2 MARCH 1999
Coram:	PIDGEON J WALLWORK J OWEN J	Delivered:	22/11/99
No of pages:	26	Judgment Part:	1 of 1
Result:	Application for leave granted Appeal allowed
PDF Version

Parties:	JUAN ANTONIO ARGIBAY PEREZ THE QUEEN
Catchwords:	Criminal law Practice and procedure Federal fishing offences Fine imposed on foreign national Principles of sentencing Whether consideration of offender's ability to pay fine Whether fine should be reduced Fisheries Foreign nationals fishing commercially without licence in Australian fishing zone Substantial fines imposed Whether offender's means to pay taken into account in imposing fine Fine excessive
Legislation:	Fisheries Management Act 1991 (Cth) s 100, s 101
Case References:	Cheatley v The Queen (1972) 127 CLR 291 Chiou Yaou Fa v Morris (1987) 87 FLR 36 Flego v Lanham (1983) 32 SASR 361 Fraser v R (1985) 63 ALR 103 Fry v Bassett (1986) 85 FLR 334 Gallagher v Durack (1983) 45 ALR 53 Hinch v Attorney General [1987] VR 721 R v Repacholi (1990) 52 A Crim R 49 R v Thompson [1989] WAR 219 R v Thompson [1989] WAR 219 Rahme v The Queen (1989) 43 A Crim R 81 Re Director of Public Prosecutions, Ex parte Lawler (1994) 179 CLR 270 Repacholi v R (1990) 52 A Crim R 49 Sgroi v The Queen (1989) 40 A Crim R 197 Sgroi v The Queen (1989) 40 A Crim R 197 Akimin & Ors v Cooper, unreported; SCt of WA (Heenan J); Library No 950071; 24 February 1995 Chen Yin Ten v Little (1976) 28 FLR 480 Fang Chinn FA v Puffett (1978) 22 ALR 149 Gayfer v Bere & Bakuama, unreported; SCt of WA (Parker J); Library No 980360; 24 June 1998 King v Pavlos, unreported; SCt of WA; Library No 970493; 22 September 1997 La Ode Arifin v Ostle, unreported; FCt of WA; Library No 8923; 18 June 1991 Liang v Mellon (1981) 12 NTR 9 Mitchell v Abas & Ors, unreported; SCt of WA (Wallwork J); Library No 980185; 9 April 1998 Plwang Ming Heui v Mellon (1980) 5 NTR 9 R v Kakura & Sato, unreported; SCt of NSW (Wood J); Library No 70178/90; 21 September 1990 R v Santome & Paz, unreported; DCt of WA; 14 October 1998 Tae Chang Fisheries Co Ltd v Morris (1990) 102 FLR 212 The Queen v Sabrudin, unreported; SCt of NT (Angel J); Library No S97/65; 7 February 1997

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : PEREZ -v- R [1999] WASCA 262 CORAM : PIDGEON J

WALLWORK J

OWEN J

HEARD : 2 MARCH 1999 DELIVERED : 22 NOVEMBER 1999 FILE NO/S : CCA 158 of 1998 BETWEEN : JUAN ANTONIO ARGIBAY PEREZ

Applicant

AND

THE QUEEN

Respondent

Catchwords:

Criminal law - Practice and procedure - Federal fishing…

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 Perez v The Queen

Details

AGLC: Perez v The Queen [1999] WASCA 262
Case: [1999] WASCA 262
Decision Date: 22 NOVEMBER 1999

CaseChat Overview and Summary

In the case of Perez v The Queen, the appellant, Perez, was convicted for engaging in commercial fishing activities within the Australian fishing zone without the required licence. The case was heard and decided by the High Court of Australia. Perez, a foreign national, was issued substantial fines for his illegal fishing activities. Perez appealed against the fines imposed, arguing that they were excessive and that his ability to pay was not adequately considered by the lower court. The central legal issue before the court was whether the lower court had appropriately considered the appellant's means to pay when determining the fines imposed. The court was also required to determine whether the fines were excessive under the relevant legislation.

The court held that the lower court had failed to adequately consider Perez's capacity to pay the fines. The court emphasised the importance of taking into account an offender's ability to pay when imposing fines, particularly in cases involving foreign nationals. The court found that the fines imposed on Perez were excessive, given his financial circumstances. The court concluded that the lower court had not appropriately exercised its discretion in determining the amount of the fines and that the fines imposed were not proportionate to the offence committed. The court allowed the appeal and remitted the matter back to the lower court for reconsideration of the fines, with proper regard to Perez's ability to pay.

The court granted Perez leave to appeal and allowed the appeal, ordering that the matter be remitted to the lower court for reconsideration of the fines imposed. The lower court was directed to take into account Perez's financial means and capacity to pay when determining the appropriate amount of the fines. This decision underscores the importance of considering an offender's ability to pay when imposing fines, particularly in cases involving foreign nationals.

Orders

Orders of the court

Application for leave granted

Appeal allowed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Perez v The Queen [1999] WASCA 262

Most Recent Citation

Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2006] QCA 558

Cases citing this decision · 9 of 9 shown

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union & Anor
[2017] HCATrans 202

…Could we also just give your Honours finally a reference to Perez v The Queen (1999) 21 WAR 470 and in particular to passages at page 484 in paragraph 42 wherein Justice Owen with whom Justice Wallwork agreed suggested that a possibility of someone else…
Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd
[2006] QCA 558 Para 1

…es (2004) 150 A Crim R 255, [19] in which His Honour considered other West Australian authorities, and agreed with the remarks of Owen J in Perez v R (1999) 21 WAR 470 [20] at [47], that:…
The State of Western Australia v West Australian Newspapers Ltd; Ex Parte
[2005] WASCA 161

…1992) 177 CLR 1 Newspapers Publishers Association of New Zealand (Inc) v Family Court [1999] 2 NZLR 344 P v P (1985) 2 NSWLR 401 Perez v The Queen (1999) 21 WAR 470 R v Eades (No 1) (1991) 6 WAR 402 R v H (A Child) (1995) 83 A Crim R 350 R v MJM (2000) 24 SR (WA) 253 R v Pearce (1992) 7 WAR 395 R v Repacholi (1990)…
Djou v Commonwealth Department of Fisheries
[2004] WASCA 282 Para 9

…The nature of a fine in the sentencing process was reflected upon by Owen J in Perez v The Queen (1999) 21 WAR 470 per Owen J at 483, in which his Honour referred to the comments of Malcolm CJ in Sgroi v The Queen (1989) 40 A Crim R 197 at 200-201 that: "The purpose of a fine is primarily to punish the offender. Con…
Binns v Gardiner
[2004] WASCA 275

…WASCA 262 Stackhouse v Curulli, unreported; SCt of WA (Owen J); Library No 920251; 30 April 1992 Waldock v Taylor [2003] WASCA 43 Coumbe v Whittaker [1999] WASCA 262 Horton v Burton (1999) 28 MVR 415 Horton v Burton (1999) 29 MVR 132 Stevens v Viskovich, unreported; SCt of WA (Parker J); Library No 950596; 26 Sept…
Ribot-Cabrera v The Queen
[2004] WASCA 101

…[2004] FCA 229 Panama v France (case No 5, judgment 7 February 2000, vol 39 International Legal Materials, p 66) Pedersen v Young (1964) 110 CLR 162 Perez v The Queen (1999) 21 WAR 460 Pinkstone v The Queen (2000) 119 A Crim R 462 Re Grinter; ex parte Hall [2004] WASCA 79 Re McBain; ex parte Catholic Bishops Conference (2…
Lijo & Ors v The Commonwealth Director of Public Prosecutions
[2003] WASCA 4

…Gillis v Gawned & Anor (1992) 8 WAR 211 Perez v The Queen (1999) 21 WAR 470 Nil…
The Commonwealth Director of Public Prosecutions v Lijo
[2002] WASC 154 Para 8

…y enquiry into the means of the respondents to pay. It seems to me appropriate to have regard to the fine originally imposed in the case of Perez v R (1999) 21 WAR 470. In that case the applicant had been the Master of a vessel and the offence was apparently his third incursion into the Australian fishing zone, but…
Fakie and Ishak v Shelverton
[2000] WASCA 177

…0 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 W…

View all 9 citing cases →

Cases cited in this decision · 4 of 4 shown

R v Rahme
[2017] NSWDC 145

…k (1983) 45 ALR 53 Hinch v Attorney General [1987] VR 721 R v Repacholi (1990) 52 A Crim R 49 R v Thompson [1989] WAR 219 R v Thompson [1989] WAR 219 Rahme v The Queen (1989) 43 A Crim R 81 Re Director of Public Prosecutions, Ex parte Lawler (1994) 179 CLR 270 Repacholi v R (1990) 52 A Crim R 49 Sgroi v The Queen (1989) 40…
Gallagher v Durack
[1983] HCA 2

…u Yaou Fa v Morris (1987) 87 FLR 36 Flego v Lanham (1983) 32 SASR 361 Fraser v R (1985) 63 ALR 103 Fry v Bassett (1986) 85 FLR 334 Gallagher v Durack (1983) 45 ALR 53 Hinch v Attorney General [1987] VR 721 R v Repacholi (1990) 52 A Crim R 49 R v Thompson [1989] WAR 219 R v Thompson [1989] WAR 219 Rahme v The Queen…
Cheatley v The Queen
[1972] HCA 63

…Cheatley v The Queen (1972) 127 CLR 291 Chiou Yaou Fa v Morris (1987) 87 FLR 36 Flego v Lanham (1983) 32 SASR 361 Fraser v R (1985) 63 ALR 103 Fry v Bassett (1986) 85 FLR 334 Gallagher v Durack (1983) 45 ALR 53 Hinch v Attorney General [1987] VR 721 R v Repacholi (1990) 52 A Crim R 49 R v Thompson [1989] WAR 219 R v…
Re Director of Public Prosecutions; Ex Parte Lawler
[1994] HCA 10

…9 R v Thompson [1989] WAR 219 R v Thompson [1989] WAR 219 Rahme v The Queen (1989) 43 A Crim R 81 Re Director of Public Prosecutions, Ex parte Lawler (1994) 179 CLR 270 Repacholi v R (1990) 52 A Crim R 49 Sgroi v The Queen (1989) 40 A Crim R 197 Sgroi v The Queen (1989) 40 A Crim R 197 Akimin & Ors v Cooper, unreport…

Legislation cited in this decision · 2

Crimes Act 1914 (Cth)
16A(2)(m) 2 mentions
Fisheries Management Act 1991 (Cth)
100 2 mentions