Sanara v Munn - [2001] NTSC 63

Sanara & Ors v Munn [2001] NTSC 63
PARTIES:SANARA, BAUN, Abdulla, AMIR, BUTIOP, Simon
AND:

MUNN, Michael Rex

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NOS:20018648, 20018268, 20017888, 20018644
DELIVERED:  1 August 2001
HEARING DATES:  6 June 2001
JUDGMENT OF:  MARTIN CJ
CATCHWORDS:

APPEAL
Justice – appeal against sentence – use of a foreign boat in the Australian Fishing Zone – possession of a boat equipped with equipment for fishing within the Australian Fishing Zone – general deterrence – whether statistical evidence was sufficient to show an increase in prevalence such as to justify an increase in penalty.
REPRESENTATION:
Counsel:
Appellants:I Read
Respondent:  G Fisher
Solicitors:
Appellants:NTLAC
Respondent:  Commonwealth DPP
Judgment category classification:                 B
Judgment ID Number:  mar0121
Number of pages:  16

Mar0121
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Sanara & Ors v Munn [2001] NTSC 63
Nos 20018648, 20018268, 20017888, 20018644

BETWEEN:
SANARA
ABDULLA BAUN
AMIR
SIMON BUTIOP
Appellants

AND:
MICHAEL REX MUNN
Respondent

CORAM: MARTIN CJ
REASONS FOR JUDGMENT
(Delivered 1 August 2001)

Appeals against sentence. Each of the appellants pleaded guilty in the Court of Summary Jurisdiction at Darwin for that he:
1.did at a place in the Australian fishing zone contravene s 100(1) of the Fisheries Management Act 1991 (Cwth) in that he did use a foreign boat for commercial fishing, and
2.did at a place within the zone have in his possession or in his charge a foreign boat equipped with long lines, hooks and other equipment for fishing.
3.The offences were committed by each appellant independently of the others in separate boats, Sanara and Butiop on 9 November 2000, Baun on 8 November 2000 and Amir on 1 November 2000. All had been in immigration custody until dealt with by the Court.
The admitted facts in respect of each may be conveniently tabulated as follows:
1.refers to the distance in kilometres in the zone at which the vessel was detected;
2.refers to the number of long lines in the water;
3.the weight or quantity of dried fish and shark fin found on board the vessel;
4.refers to fresh shark on board or on hooks in the water;
5.the number of long lines on board (in each case there was additional fishing equipment);
6.the estimated value of the vessel, catch and equipment.

1 2 3 4 5 6

No of lines in water Dried fish on board Fresh fish etc

Sanara 8 small quantity of shark fin 1 (+other lines) $3,000

Baun 10 20 pieces & 40 kg 5 20 $4,600

Mullet

Amir 30 1
10 kg
4 sharks, 1 cod 8 trawling lines $4,050

Butiop
6.5 2 80 – 100 kg fish & shark fin 14 sharks 3 $4,600

In each case the vessel was identified as a type III motorised Indonesian fishing vessel. All were equipped with working compasses and some with charts showing the boundaries of the Australian Fishing Zone marked on them.

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.

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Details

Case: [2001] NTSC 63
Decision Date: 1 August 2001

CaseChat Overview and Summary

The Supreme Court of the Northern Territory was presented with an appeal against sentence by four appellants, each of whom had pleaded guilty to charges under the Fisheries Management Act 1991 (Cth) for using a foreign boat for commercial fishing within the Australian Fishing Zone and possessing a boat equipped with fishing equipment within the same zone. The legal issues centered on whether the trial judge had sufficiently considered the financial circumstances of the appellants and whether the statistical evidence presented justified an increase in penalty to achieve general deterrence. The appellants argued that the fines imposed, which would lead to their imprisonment due to their inability to pay, were excessive given their limited financial means. They also contested the sufficiency of the evidence to show an increase in the prevalence of such offences that would warrant a harsher penalty.

The court examined the evidence and submissions to assess the trial judge’s consideration of the appellants’ financial circumstances and the relevance of the statistical data on the prevalence of such offences. The court noted that while the trial judge acknowledged the appellants’ financial difficulties, it appeared that he did not fully consider the additional financial burden that would be imposed on them by the forfeiture of their vessels and the requirement to repay the owners. Regarding the statistical evidence, the court found that the data provided did not conclusively demonstrate an increasing trend in the prevalence of these offences, and therefore, did not support the imposition of higher penalties. The court emphasized that general deterrence should be balanced with the personal circumstances of the offenders and the effectiveness of the proposed penalties in achieving the desired deterrent effect. Consequently, the court determined that the penalties imposed were excessive and not justified by the available evidence.

The final orders of the court were not detailed in the provided excerpt, but the court invited submissions on the appropriate orders to be made, considering the appellants had already served their sentences and returned to Indonesia.

Orders