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Yusup v The Queen [2005] NTCCA 19

PARTIES: YUSUP, Mohammad

v

THE QUEEN

TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION: APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO: CA 2 of 2005 (20424685)

DELIVERED: 22 December 2005

HEARING DATE: 10 November 2005

JUDGMENT OF: MILDREN, RILEY & SOUTHWOOD JJ

CATCHWORDS:

COMMONWEALTH LAW – APPEAL – SENTENCE

Guilty plea to two offences pursuant to ss 100A(2) and 101A(2) Fisheries Management Act 1991 (Cth) – whether sentence manifestly excessive – in the circumstances there was significant commonality between the offences – time spent in fisheries and immigration detention is a matter to be taken into account in determining an appropriate sentence.

Crimes Act 1914 (Cth), s 15A(3), s 15A(4), s 16A(2), s 16E(3)
Fisheries Management Act 1991 (Cth) s 84(1)(ia), s 84(A)(1)(d), s 100A(2), s 101A(2)
Migration Act 1958 (Cth), s 164B, s 189, s 250
Prisons (Correctional Services) Act (NT), s 5
Sentencing Act (NT) s 26(2), s 26(6)

Johnson v R (2004) 205 ALR 346, applied
Pearce v The Queen (1998) 194 CLR 610, applied
R v Zainudin & Ho (2005) 190 FLR 149, applied

United Nations Convention on the Law of the Sea, Article 73

REPRESENTATION:

Counsel:
Appellant: S. Cox QC
Respondent: P. Usher

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

Judgment category classification: A
Judgment ID Number: ril0529
Number of pages: 15

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Yusup v The Queen [2005] NTCCA 19
No CA 2 of 2005 (20424685)

BETWEEN:

YUSUP, Mohammad
Appellant

AND:

THE QUEEN
Respondent

CORAM: MILDREN, RILEY and SOUTHWOOD JJ

REASONS FOR JUDGMENT

(Delivered 22 December 2005)

MILDREN J:

[1] I agree with Riley J that the appeal in this matter should be allowed for the reasons which his Honour gives. I also agree with the sentencing orders which he proposes.

I wish to add the following comments.

[2] In recent times, offences against the Fisheries Management Act in the north and north-western parts of the Australian Fishing Zone have become more and more prevalent. Offences against s 100A and s 101A of the Act presently carry only fines. Although the maximum fines which may be imposed are very significant, the deterrent effect of such a fine upon a poor Indonesian fisherman who could not possibly pay such a fine is minimal because, unless time to pay is refused, the defendant will be deported before he can be imprisoned as a fine defaulter. In this jurisdiction, there is no power to refuse time to pay, every person is granted 28 days to pay and the maximum period of imprisonment for failure to pay a fine is only three months: see Sentencing Act s 19, s 26(2) and s 26(3)(c). The period of default imprisonment for non-payment of a fine varies widely amongst the several State jurisdictions. At one extreme, in Western Australia the court may fix a default…

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 Yusup v The Queen

Details

AGLC: Yusup v The Queen [2005] NTCCA 19
Case: [2005] NTCCA 19
Decision Date: 22 December 2005

CaseChat Overview and Summary

The Court of Criminal Appeal of the Northern Territory heard an appeal by Mohammad Yusup against sentences imposed by the Supreme Court for two offences under the *Fisheries Management Act 1991* (Cth). Yusup had pleaded guilty to intentionally using a foreign boat in the Australian Fishing Zone for commercial fishing, and intentionally possessing a foreign boat equipped for fishing within the same zone. The offences arose from events on 27 September 2004, when Yusup was the captain of an Indonesian fishing vessel apprehended within the Australian Fishing Zone with a significant quantity of fish and shark fin.

The legal issues before the Court of Criminal Appeal included whether the sentences imposed were manifestly excessive, whether the sentencing judge erred in failing to give sufficient weight to the total period Yusup spent in fisheries and immigration detention, and whether the sentencing judge failed to adequately consider the principle of totality in light of the significant commonality between the two offences. Yusup also argued that the sentencing judge incorrectly applied the *Crimes Act 1914* (Cth) regarding the cumulative nature of default imprisonment periods.

The Court reasoned that the sentencing judge erred in failing to consider the period of immigration detention as a relevant factor in sentencing, distinguishing it from mere unlawful presence in Australia. It was held that detention under s 250 of the *Migration Act 1958* (Cth), which arose from the investigation of the fisheries offences, was a form of custody that should be taken into account. Furthermore, the Court found a significant overlap in the elements of the two offences, meaning Yusup should not be punished twice for the common conduct, applying the principle from *Pearce v The Queen*. The Court also noted that the *Crimes Act 1914* (Cth) mandates concurrent default imprisonment periods unless otherwise ordered, contrary to the sentencing judge's application of Northern Territory legislation which presumed cumulation.

Allowing the appeal, the Court of Criminal Appeal set aside the original sentences. It re-sentenced Yusup by imposing an aggregate fine of $100,000, to be paid within 28 days, with imprisonment in default. This approach reflected the commonality of the offences and the substantial period of detention already served.

Orders