Samide v Munn - [2004] NTSC 4

[Back to Main List] [Back to NTSC 2004 List] Samide v Munn & Letsoya v Mackay [2004] NTSC 4

PARTIES: BASRI SAMIDE

MICHAEL REX MUNN

and

HASAN LETSOYA

ROY STUART MACKAY

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NOS: JA 113 of 2003 (20308347)
JA 114 of 2003 (20308353)

DELIVERED: 10 February 2004

HEARING DATE: 4 February 2004

JUDGMENT OF: RILEY J

REPRESENTATION:

Counsel:
Appellant: J.K. Franz
Respondent: P. Usher

Solicitors:
Appellant: Northern Territory Legal Aid Commission
Respondent: Office of the Commonwealth Director of Public Prosecutions

Judgment category classification: B
Judgment ID Number: ril0401
Number of pages: 12

ril0401

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Samide v Munn & Letsoya v Mackay [2004] NTSC 4
Nos JA 113 and 114 of 2003

IN THE MATTER OF the Justices Act

AND IN THE MATTER OF an appeal against sentence handed down in the Court of Summary Jurisdiction at Darwin

BETWEEN:

BASRI SAMIDE
Appellant

AND:

MICHAEL REX MUNN
Respondent

and

HASAN LETSOYA
Appellant

AND:

ROY STUART MACKAY
Respondent

CORAM: RILEY J

REASONS FOR JUDGMENT

(Delivered 10 February 2004)

[1] These appeals against sentence were heard together at the request of the parties. The circumstances of the offending are similar and the complaints of the appellants are the same.
[2] On 5 June 2003 the appellant Basri Samide pleaded guilty to, and was convicted of, two offences against the Fisheries Management Act (Cth). The first of those offences was that on 20 May 2003 he used a foreign boat for commercial fishing in the Australian Fishing Zone (AFZ) contrary to s 100(2) of the Act. He was fined $10,000 and, pursuant to s 26(2) of the Sentencing Act (NT), it was ordered that if the fine was not paid within 28 days he was to be imprisoned for 100 days.
[3] Mr Samide was also convicted of having been in charge of a foreign boat equipped with fishing equipment contrary to s 101(2) of the Fisheries Management Act. In relation to this offence the learned sentencing magistrate, without passing sentence, ordered that he be released upon entering into a good behaviour bond pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth) in the sum of $10,000 to be of good behaviour for 5 years. Pursuant to s 33B of the Justices Act (NT) it was further ordered that, in the event the bond was breached, the amount would be forfeited and in default of immediate payment Mr Samide was to be committed to gaol for up to 3 months.
[4] Mr Letsoya was dealt with on the same day and before the same magistrate. He pleaded guilty to having, on 21 May 2003, used a foreign boat for commercial fishing in the AFZ contrary to s 100(2) of the Fisheries Management Act. In relation to that offence he was convicted and fined $11,000. Pursuant to s 26(2) of the Sentencing Act…

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 Samide v Munn

Details

AGLC: Samide v Munn [2004] NTSC 004
Case: [2004] NTSC 4
Decision Date: 10 February 2004

CaseChat Overview and Summary

In the Supreme Court of the Northern Territory, the case of Samide v Munn and Letsoya v Mackay was heard on appeal against sentence. Basri Samide and Hasan Letsoya, both Indonesian fishermen, had pleaded guilty to offences under the Fisheries Management Act (Cth) for illegal commercial fishing in the Australian Fishing Zone. Samide was convicted of using a foreign boat for commercial fishing and being in charge of a boat equipped with fishing gear, while Letsoya was convicted of similar offences. They were fined and ordered to enter into good behaviour bonds. Both appellants argued that the fines were excessive and should not have been imposed.

The legal issues before the court were whether the fines imposed were appropriate and whether the amount of the recognizances for the good behaviour bonds were excessive. The court considered the need for general deterrence given the serious nature of the offences and the significant incursions into Australian waters by the appellants. The sentencing magistrate had emphasised the need for deterrence and the distances the vessels had ventured into Australian waters.

The court found that while the penalties imposed were greater than those typically seen in the Northern Territory, they were within the range of penalties imposed in other jurisdictions such as Western Australia and Queensland. The court held that it was appropriate for sentencing courts to consider sentences imposed in other jurisdictions to achieve consistency in sentencing. The court also noted that the combined fine and default imprisonment period needed to be assessed as just rather than the individual components. The appeals were dismissed as the sentences were not manifestly excessive.

The court dismissed the appeals and upheld the sentences imposed by the sentencing magistrate. The decisions highlight the importance of considering sentencing practices in other jurisdictions to achieve consistency in sentencing for similar offences under federal legislation.

Orders