Yusup v The Queen

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.