R v Zainudin & Ho - [2005] NTSC 14

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PARTIES: THE QUEEN

ZAINUDIN
and
LEI JAN HO

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO: 20423893 & 20425275

DELIVERED: 24 January 2005

HEARING DATES: 18 and 21 January 2005

JUDGMENT OF: MILDREN J

CATCHWORDS:

SENTENCE – Commonwealth offences – whether time spent in immigration detention is time spent in custody – backdating of sentence – Sentencing Act (NT) s 63(5)

Fisheries Management Act s 84(1)(a), s 84(1)(ai), s 84(1)(i)(a), s 84(1)(j), s 84A(1), s 84A(2), s 100(1), s 100A, s 100A(1), s 100A(2)(a), s 100(1), s 101A, s 101A(1), s 101A(2), s 106C; Criminal Code (Cth) s 149.1; Crime Acts 1914 s 4B(2), s 16A , s 16C(1), Div 2 of Pt IC; Migration Act s 5, s 250; Immigration Act s 198; Sentencing Act s 18, s 26(2), s 63(5); Prisons (Correctional Services) Act s 5

Referred to
Williams v R (1986) 161 CLR 278; Donaldson v Broomby (1982) 60 FLR 124; Putland v R (2004) 204 ALR 455; Pearce v R (1998) 194 CLR 610; R v Muhammad Yusup (20 January 2005), sentencing remarks of Angel J

REPRESENTATION:

Counsel:
Plaintiff: R. Curnow
Defendant: T. Berkley

Solicitors:
Plaintiff: Commonwealth Director of Public Prosecutions
Defendant: NT Legal Aid Commission

Judgment category classification: B
Number of pages: 18

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

R v Zainudin & Ho [2005] NTSC 14
No. 20423893 & 20425275

BETWEEN:

THE QUEEN
Plaintiff

AND:

ZAINUDIN
First Defendant
LEI JAN HO
Second Defendant

CORAM: MILDREN J

SENTENCING REMARKS

(Delivered 24 January 2005)

[1] I am dealing firstly with the case of R v Zainudin. Some of the remarks that I am going to make in Zainudin will apply equally to the case of Ho.
[2] The prisoner Zainudin had pleaded guilty to three offences against Commonwealth law. The first is an offence of using a foreign vessel for fishing in the Australian Fishing Zone contrary to s 100A(1) and s 100A(2)(a) of the Fisheries Management Act.
[3] As the vessel in question was 24 metres long, the maximum penalty fixed by the Parliament for this offence is 7500 penalty units or $825,000.
[4] The second offence is that of having a foreign boat equipped for fishing in an Australian Fishing Zone, contrary to s 101A(2) of the Fisheries Management Act. The maximum penalty for that offence is 5000 penalty units or $550,000.
[5] The third offence is resisting a public official in the performance of his functions, contrary to s 149.1 of the Criminal Code of the Commonwealth. The maximum penalty for that offence is two years’ imprisonment and in addition or alternatively the court may impose a fine of $13,200 pursuant to s 4B(2) of the Crimes Act 1914.
[6] The facts in relation to the matter of Zainudin are that on Tuesday…

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 R v Zainudin & Ho

Details

AGLC: R v Zainudin & Ho [2005] NTSC 014
Case: [2005] NTSC 14
Decision Date: 24 January 2005

CaseChat Overview and Summary

In the case of R v Zainudin and Ho, the defendants pleaded guilty to multiple charges under Commonwealth law, including fishing in the Australian Fishing Zone without a license and resisting a public official. The court had to decide whether time spent in immigration detention should be taken into account when sentencing, and whether sentences could be backdated. The court found that time spent in immigration detention should be taken into account in sentencing, but not when fixing the amount of a fine. The court also found that sentences could be backdated for offences under the Fisheries Management Act, but not for resisting a public official. The court sentenced Zainudin to an aggregate fine of $100,000 and four months imprisonment, backdated to the date of his remand in custody. Ho was sentenced to an aggregate fine of $100,000 and three months imprisonment, backdated to the date of his remand in custody. The court took into account the defendants' pleas of guilty and the fact that they were first-time offenders. The court also considered the gravity of the offending and the need for general and specific deterrence.

Orders