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)

[1]	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.
[2]	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 imprisonment.
[3]	The Court of Summary Jurisdiction sentenced the appellant to four months imprisonment on the first charge and to three months imprisonment on the second charge with both sentences taking effect from 11 December 2007.  The sentences of imprisonment were made concurrent with each other; and under s 20(1)(b) of the Crimes Act 1914 (Cth), the appellant was ordered to be released, after serving 21 days in prison, on his own recognizance of $1500 to be of good behaviour for two years.
[4]	By convention, Article 73 of the United Nations Convention on the Law of the Sea, to which Australia is a signatory, prevents the Nations that are signatories to the convention from imposing custodial penalties for fisheries violations that occur in the exclusive economic zone of a particular country. However, Article 73 of the United Nations Convention on the Law of the Sea does not apply to fisheries violations that are committed in the territorial sea of Australia.  The width of the territorial sea is limited to 12 nautical miles from the low water line along the coast of Australia as marked on the large-scale charts officially recognized by the Australian Government.
[5]	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
[6]	The facts are as follows.
[7]	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.
[8]	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.
[9]	The appellant was a first offender.  He had no prior criminal record.
[10]	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.
[11]	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.
[12]	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.
[13]	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.
[14]	The boarding team located the following items on board the foreign boat: numerous pairs of reef walking shoes, 18 cane collecting baskets, hessian sacks, one liquid dampened compass and a piece of paper with handwritten sailing directions.
[15]	During the hearing of the appeal counsel for the respondent, Ms Dixon, told the court that on 21 November 2007 the Australian Fisheries Management Authority decided to bring criminal proceedings against the appellant.  A letter was written to the Commonwealth Director of Public Prosecutions on 21 November 2007 enclosing the prosecution file and the file was received by the office of the Commonwealth Director of Public Prosecutions on 22 November 2007.
Remarks of the sentencing magistrate
[16]	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
[17]	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. 
[18]	It is to be noted that this appeal is different to the other appeal because the appellant in this case is only 22 years of age, he is a first offender, he had been fishing on boats as the captain or master of the boat for six years, he normally fished in Indonesian waters and at the time of his apprehension he had caught nothing in the territorial sea of Australia.  While it is true that these factors must be balanced against the extent to which the appellant and his crew entered the territorial sea of Australia and how close they came to the Australian mainland, it is my opinion that the sentencing magistrate erred in the exercise of his sentencing discretion.  He did not give sufficient weight to the subjective circumstances to which I have just referred.  Specific deterrence was much less of an issue in this appeal than it was in the other appeal.  The sentencing magistrate also erred because he did not back date the sentences of imprisonment that he imposed on the appellant to 3 November 2007 being the date on which the appellant was apprehended in the territorial sea of Australia.
[19]	In my opinion, for the above reasons, the appeal should be allowed on grounds 2, 3, 4 and 5.  Ground 1 of the appeal is not made out and it is unnecessary to decide ground 6 of the appeal.
Re-sentence
[20]	I turn to re-sentence the appellant.  But for the fact that the appellant remained in prison until 31 December 2007, I would have imposed two sentences of two months imprisonment on the appellant and I would have ordered that the appellant be released on 11 December 2007 under s 20(1)(b) of the Crimes Act (Cth) on his recognizance of $1500 to be of good behaviour for two years.
[21]	Given that the appellant was released on 31 December 2007, I make the following orders:
1.	The appeal is allowed on grounds 2, 3, 4 and 5. Ground 1 of the appeal is not made out and it was not necessary to consider ground 6.
2.	The sentences of four months and three months imprisonment that were imposed on the appellant by the Court of Summary Jurisdiction for counts 1 and 2 of the Information for an Indictable Offence are set aside.
3.	For count 1 of the Information for an Indictable Offence I impose a sentence of two months imprisonment on the appellant.  For count 2 of the Information for an Indictable Offence I impose a sentence two months imprisonment on the appellant.
4.	Each sentence of imprisonment that I have imposed on the appellant is back dated to 21 November 2007 (being the date on which the Australian Fisheries Management Authority determined to proceed against the appellant) to reflect the time that the offender was in custody for each offence.
5.	I order that the appellant is to be released on 31 December 2007 being the date when the appellant was released from prison.
6.	I confirm the order of the Court of Summary Jurisdiction that under s 20(1)(b) of the Crimes Act (Cth) the appellant is released on his own recognizance of $1500 to be of good behaviour for two years.
7.	I make no order as to the costs of the appeal.
[22]	I have back dated each of the sentences of imprisonment to 21 November 2007 as this was the date on which the Fisheries Management Authority determined to proceed against the appellant and from this date until the appellant was sentenced by the Court of Summary Jurisdiction the appellant was kept in detention under s 250 of the Migration Act (Cth) for the purpose of instituting the prosecution against the appellant and for the purpose of the prosecution of the appellant for the offences for which he was convicted by the Court of Summary Jurisdiction.
[23]	Having considered all other available sentences, I am satisfied that no other sentences other than the sentences of imprisonment that I have imposed on the appellant are appropriate in all the circumstances of the case.  Such offences as these are prevalent; there was a significant incursion into the territorial sea of Australia; the appellant was in charge of a crew of 20 men; and the learned magistrate found that the appellant was not in any way mistaken or just a little bit reckless about the location of the boundary line of the territorial sea of Australia.
[24]	This means that the appellant still has 20 days of imprisonment hanging over his head should he re-offend during the two year period from 11 December 2007.
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