Suriyadi v Bravos - [2008] NTSC 19

Suriyadi v Bravos [2008] NTSC 19
PARTIES:SURIYADI, Nurdin
v

BRAVOS, Cindy

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA 63 of 2007 (20732851)
DELIVERED:  23 April 2008
HEARING DATE:  18 April 2008
PUBLISHED:  28 April 2008
JUDGMENT OF:  SOUTHWOOD J
APPEAL FROM:  A McGregor SM
CATCHWORDS:

JUSTICES APPEAL – Appeal against sentence – whether the sentencing magistrate failed to consider or did insufficiently consider the absence of criminal antecedents – whether the sentences were manifestly excessive – weight to be given to personal and general deterrence in sentencing – whether the sentencing magistrate erred in not backdating the sentence of imprisonment to the time the appellant was apprehended – appeal allowed
Crimes Act 1914 (Cth) s 20(1)(b)
Fisheries Management Act 1991 (Cth) s 100B(1), s 101AA(1), 164B(3)
Migration Act 1958 (Cth) s 164B(3), s 250
REPRESENTATION:
Counsel:
Appellant:C R A McDonald QC and M Johnson
Respondent:  C Dixon
Solicitors:
Appellant:Hunt and Hunt
Respondent:  Commonwealth Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Sou0805
Number of pages:  11

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Suriyadi v Bravos [2008] NTSC 19

No JA 63 of 2007 (20732851)

BETWEEN:
SURIYADI, Nurdin

Appellant:
AND:
BRAVOS, Cindy

Respondent:

CORAM: SOUTHWOOD J
REASONS FOR JUDGMENT
(Delivered 23 April 2008)

On 11 December 2007 the Court of Summary Jurisdiction convicted the appellant of two offences. First, he was convicted of the offence that contrary to s 100B(1) of the Fisheries Management Act 1991 (Cth), on 3 November 2007, at a place in the territorial sea of Australia, which was in the Australian Fishing Zone, he intentionally used a foreign boat, the Adi Subeti Jaya, with a length of less than 24 metres, having been reckless as to the facts that the boat was a foreign boat; the foreign boat was used for commercial fishing; and, at the time of its use, the foreign boat was in the territorial sea of Australia. The maximum penalty for this offence is $550,000 and/or imprisonment for two years. The maximum penalty that the Court of Summary Jurisdiction could impose was a fine of $6600 and/or 12 months imprisonment.
Secondly, the appellant was convicted of the offence that contrary to s 101AA(1) of the Fisheries Management Act 1991 (Cth), on 3 November 2007, at a place in the territorial sea of Australia, which was in the Australian Fishing Zone, he intentionally had in his charge a foreign boat, the Adi Subeti Jaya, having been reckless as to the facts that the boat was a foreign boat; the boat was equipped with nets, traps or other equipment for fishing; and, at the time that it was so equipped, the foreign boat was in the territorial sea of Australia. The maximum penalty for this offence is $550,000 and/or two years imprisonment. The maximum penalty that may be imposed by the Court of Summary Jurisdiction was a fine of $6600 and/or 12 months…

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 Suriyadi v Bravos

Details

AGLC: Suriyadi v Bravos [2008] NTSC 19
Case: [2008] NTSC 19
Decision Date: 23 April 2008

CaseChat Overview and Summary

In the matter of Suriyadi v Bravos, the appellant, a 22-year-old Indonesian fisherman, appealed against his sentences of imprisonment imposed by the Court of Summary Jurisdiction. The appellant was apprehended near Adele Island, 209 nautical miles inside the Australian Fishing Zone, while on a fishing expedition for shark fin. He was the master of a 15-metre Type 3 vessel with 21 persons on board. He had no prior criminal record and had been in immigration detention since 3 November 2007. The court was required to decide whether the sentencing magistrate failed to consider alternatives to imprisonment, failed to consider or did insufficiently consider the appellant's absence of any criminal antecedents, whether the sentences were manifestly excessive, and whether the sentencing magistrate erred in not backdating the sentence of imprisonment to the time the appellant was apprehended.

The court found that the sentencing magistrate failed to consider alternatives to imprisonment, failed to consider or did insufficiently consider the appellant’s absence of any criminal antecedents, and the sentences were manifestly excessive. The sentencing magistrate placed too much emphasis on personal and general deterrence, and failed to take account of other matters which were relevant and known to the Court of Summary Jurisdiction. Additionally, the sentencing magistrate erred in not backdating the sentence of imprisonment to 3 November 2007, the date when the appellant was apprehended by Australian Customs and Fisheries officers. The court found that the sentencing magistrate failed to sufficiently take into account the periods of time that the appellant spent in immigration detention.

The court allowed the appeal and quashed the sentences of imprisonment imposed on the appellant. The court ordered that the appellant be released from custody immediately unless already released, and ordered that the sentences be backdated to 3 November 2007. The court also ordered that the appellant be given credit for time spent in immigration detention.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The appellant appeals against each of the sentences of imprisonment that was imposed on him by the Court of Summary Jurisdiction on the following grounds:1.The sentencing magistrate failed to consider alternatives to imprisonment.2.The sentencing magistrate failed to consider or did insufficiently consider the appellant’s absence of any criminal antecedents.3.The sentences were manifestly excessive.4.The sentencing magistrate erred in placing too much emphasis on personal and general deterrence; and, in doing so, he failed to take account of other matters which were relevant and known to the Court of Summary Jurisdiction.5.The sentencing magistrate erred in not backdating the sentence of imprisonment to 3 November 2007 being the date when the appellant was apprehended by Australian Customs and Fisheries officers.6.The sentencing magistrate failed to sufficiently take into account the periods of time that the appellant spent in immigration detention.The facts The facts are as follows. The appellant is a 22 year old man. He lives on Maginti which is one of the islands in the Sulawesi group of islands that form part of the Democratic Republic of Indonesia. He lives with his parents and two younger sisters. They live in a village and he gives money to his family whenever he has it. While he was in immigration detention he was told that his father was very ill. The appellant had been a fisherman for six years. He had always been the master of the boat. He had previously fished in Indonesian waters. At the time he was apprehended he was out earning a living. The appellant was a first offender. He had no prior criminal record. The appellant was in immigration detention from 3 November 2007 to 11 December 2007. After he was apprehended the appellant was either in detention under Clause 8 Schedule 1A of the Fisheries Management Act 1991 (Cth) and an enforcement visa issued under s 164B(3) of the Migration Act, or immigration detention under s 250 of the Migration Act 1958 (Cth). For the most part the appellant was in detention at the Northern Immigration Detention Centre in Darwin. At 1300 hours on 2 November 2007 HMAS Bathurst received a call from NORCOM to investigate a foreign boat at a place in the Australian Fishing Zone 120 nautical miles south of the Australian Fishing Zone boundary line and 20 nautical miles east of Scott Reef. At 0010 on 3 November 2007 HMAS Bathurst initiated hales and signals requesting the foreign boat to stop for boarding. At approximately 0047 a boarding team boarded the foreign boat in a position 209 nautical miles inside the Australian Fishing Zone and eight nautical miles west north-west of Adele Island which is inside the territorial sea of Australia. The foreign boat was identified as a Type 3 Indonesian vessel, 15 metres in length, of wood construction, a green hull and blue super structure. There were 21 persons on board. The appellant and crew were compliant during the boarding. The appellant was identified as the master of the foreign boat and he was interviewed by Customs and Fisheries officers. The appellant stated that his home port was Maginti and that the foreign boat departed his home port on 28 October 2007. The purpose of their voyage was fishing. They had been fishing in the area for approximately three days. His intention was to fish for shark fin.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The sentencing magistrate made the following remarks when sentencing the appellant:Now Mr Suriyadi you are a 22 year old man from Maginti [island which is] in the Sulawesi group of islands. You were caught near Adele Island, eight nautical miles northwest of Adele Island, which is quite close to the Western Australian coast. You were discovered 120 nautical miles south of the boundary line … on 2 November 2007 and at 10 minutes past midnight on 3 November 2007 you were 209 miles inside the Australian Fishing Zone. You were in a 15 metre Type 3 vessel with 21 persons on board. You said in interview that the purpose of your voyage was fishing for shark fin. A search of the vessel seems not to have found any fish but found numerous pairs of reef walking shoes, 18 cane collecting baskets and hessian sacks.Now of course it is possible to find reef sharks on reefs. It is much more likely, say I from my relatively limited experience of walking about on reefs, it is much more likely that you will find trepang or as I'm told trochus. I had not thought of trochus. And the walking shoes and the cane collecting baskets and the hessian sacks seem to be quite nicely designed for that sort of marine animal. You have a compass, a liquid dampened compass. ……You have not been apprehended before but you have, despite your age, been a fisherman for six years, always the captain. I can only say that you appear to show leadership capabilities. You live with your parents and two young sisters. Your father is very ill. Your boat has been burned at sea, which happened to the last boat too. I don't need, I think, to be [as] severe with you as I [was] with the last captain. But I do need to get a strong message home to you. You were practically on the West Australian coastline. You certainly weren’t in any way mistaken or just a little bit reckless about where the line was.On the first charge you are convicted and sentenced to four months imprisonment with effect from today. In fixing that, I take into account that you have been in detention since 2 November 2007. On the second count you are convicted and sentenced to three months imprisonment with effect from today.I have noted that you did not have any high-tech fishing equipment with you but that is balanced out by the fact that it was trepang in particular you are after and on a good shallow reef you do not need too much, good walking shoes and a bag may be quite enough.Now in each case … instead of serving the whole of that period, which amounts to four months. In each case you will be released after you have served 21 days. Pursuant to section 20(1)(b) of the Crimes Act (Cth), I suspend the rest of the period on you entering your own bond of $1500 to be of good behaviour for two years. You will now do 21 days in gaol.Conclusion This appeal was heard together with the appeal in Haruma v McCarthy [2008] NTSC 18. In coming to my decision in this matter I have considered all of the factors and principles that I considered in Haruma v McCarthy [supra] and I have applied them to the circumstances of this case.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.