Alimudin v McCarthy; Nurdin v Bravos [2008] NTCA 7

Migration Act 1958 (Cth)

R v C (1997) 93 A Crim R 81; R v Lavery (1978) 19 SASR 515;

R v O'Donohue (1998) 34 A Crim R 397; Van der Meer v The Queen [1988] HCA 56; (1988) 82 ALR 10, considered

Respondents: Commonwealth Director of Public Prosecutions

Alimudin v McCarthy; Nurdin v Bravos [2008] NTCA 7

Nos AP4 of 2008 (20732015) and AP5 of 2008 (20732851)

[1]

I agree that the appeals should be allowed for the purpose of backdating the sentences to the dates specified by Riley J and with his Honour's reasons.

[2]

I have read the Reasons for Judgment prepared by Riley J. I agree, for the reasons he has expressed, that the appeals should be allowed. I agree that the sentences should be amended and backdated to the dates the appellants were first taken into custody.

[3]

On 11 December 2007 each of the appellants entered pleas of guilty in the Court of Summary Jurisdiction to offences committed under s 100B(1) and s 101AA(1) of the Fisheries Management Act 1991 (Cth). Those sections create offences of using a foreign boat for fishing in the territorial sea of Australia within the Australian Fishing Zone (AFZ) and having a foreign boat equipped for fishing in the territorial sea of Australia within the AFZ.

[4]

Following pleas in mitigation the appellants were each sentenced to terms of imprisonment. The appellants appealed against their sentences and the appeals were heard before a judge of the Supreme Court in April 2008. On 24 April 2008 orders were made allowing the respective appeals, setting aside the sentences and re-sentencing the appellants to further terms of imprisonment. Reasons for decision were delivered on 28 April 2008. Each appellant now appeals to this Court against the further sentences imposed by the learned sentencing judge.

[5]

The significant issue for the determination of the Court focuses upon the ability of a magistrate or a judge, when imposing a sentence of imprisonment on a person who was detained by officers acting under the authority of clause 8 of Schedule 1A of the Fisheries Management Act 1991 (Cth) and/or held in immigration detention pursuant to s 250(3)(a)(i) of the Migration Act 1958 (Cth) and later charged with and convicted of an offence contrary to the Fisheries Management Act, to backdate that sentence to the date upon which the person was originally detained.

[6]

The appellant, Haruma Alimudin, was apprehended and taken into custody on 2 November 2007, and the appellant, Suriyadi Nurdin, was apprehended and taken into custody on 3 November 2007. At the time of apprehension Haruma Alimudin was a member of the crew on the foreign boat the Bintang Laut located at a place in the AFZ and Suriyadi Nurdin was the master on the foreign boat the Adi Subeti Jaya located at a place in the AFZ.

[7]

It was not until 21 November 2007 that the Australian Fisheries Management Authority decided to bring criminal proceedings against each of the appellants. On that day a letter enclosing the prosecution file was provided to the Commonwealth Director of Public Prosecutions.

[8]

When their matters came before the Supreme Court it was not disputed that each of the appellants was initially apprehended and taken into "fisheries detention" under clause 8 of Schedule 1A of the Fisheries Management Act and thereafter into "immigration detention" under s 250 of the Migration Act. When the matter came before this Court there was, for the first time, some suggestion that each appellant may have been arrested pursuant to the provisions of s 84(1)(f) of the Fisheries Management Act. That submission should be rejected. The procedures applicable to such an arrest were not followed and, in all the circumstances, it is clear that the officers concerned were proceeding in reliance upon their power to take each appellant into, firstly, fisheries detention and then into immigration detention. The learned judge proceeded on that basis when sentencing and there was no challenge to his so doing in the grounds of appeal.

[9]

Schedule 1A of the Fisheries Management Act is expressed to have three main objects. The first is to provide for the detention in Australia of persons who are reasonably suspected of having committed an offence using a foreign boat and who are not Australian citizens or Australian residents for a limited period for the purposes of determining whether to charge them with the offence. A further object is to facilitate the transition of persons from fisheries detention to immigration detention under the Migration Act.

[10]

Clause 8 of the Schedule then provides as follows:

(1) An officer may detain a person in Australia or a Territory for the purposes of determining during the period of detention whether or not to charge the person with an offence against section 99, 100, 100A, 100B, 101, 101A, 101AA, 101B, 105E or 105F or an offence against section 6 of the Crimes Act 1914 relating to such an offence, if the officer has reasonable grounds to believe that the person:

(a) is not an Australian citizen or an Australian resident; and

(b) was on a foreign boat when it was used in the commission of such an offence.

(2) Subclause (1) does not authorise an officer to use more force in detaining a person than is reasonably necessary.

(3) Subclause (1) has effect subject to section 87E.

[11]

Pursuant to the terms of that provision each of the appellants was apprehended for the purposes of determining, during the period of detention, whether or not to charge them with an offence, the officer having reasonable grounds to believe that each appellant was not an Australian citizen or an Australian resident and was on a foreign boat when it was used in the commission of an offence under the Act.

[12]

Clause 10 of Schedule 1A permits a "detention officer" to continue the detention of a person already detained for the purpose of facilitating the determination of whether or not to charge the person with an offence under the identified sections of the Fisheries Management Act or s 6 of the Crimes Act 1914 (Cth). The officer must have reasonable grounds to believe that the person has been detained under Division 1 and has been presented, while detained by that officer, to a detention officer for detention by a detention officer.

[13]

The end of the period of detention under the legislative regime is provided for in clause 13 of Schedule 1A in the following terms:

(a) as soon as an officer or detention officer knows or reasonably believes that the detainee is an Australian citizen or an Australian resident; or

(b) at the time the detainee is brought before a magistrate following a decision to charge the detainee with an offence referred to in subclause 8(1); or

(c) at the time a decision is made not to charge the detainee with an offence referred to in that subclause; or

(d) at the end of 168 hours after the detention began;

[14]

Once the fisheries detention expires the person may, in appropriate circumstances, be detained in immigration detention. Immigration detention is provided for in s 250 of the Migration Act in the following terms:

(a) travelled, or was brought, to the migration zone; and

(b) is believed by an authorised officer on reasonable grounds to have been on board a vessel (not being an aircraft) when it was used in connection with the commission of an offence against a law in force in the whole or any part of Australia.

(2) For the purposes of section 189, an officer has a suspicion described in that section about a person if, but not only if, the person is a suspect.

(3) A non-citizen detained because of subsection (2) may be kept in immigration detention for:

(i) the making of a decision whether to prosecute the suspect in connection with the offence concerned; or

(b) if such a prosecution is instituted within that period - such further period as is required for the purposes of the prosecution.

(4) Without limiting the generality of paragraph (3)(b), the period that is required for the purposes of a prosecution includes any period required for:

(a) any proceedings in connection with the prosecution; and

(b) the serving of any custodial sentence imposed because of the prosecution; and

(c) the institution of, and any proceedings in connection with, any appeal from any decision in relation to the prosecution.

(5) If the period for which a person may be kept in immigration detention under subsection (3) ends, he or she:

(a) must, unless he or she has become the holder of a visa, that is in effect, to remain in Australia, be expeditiously removed from Australia under section 198; and

(b) may, at the direction of an authorised officer, continue to be detained under section 189 until so removed.

[15]

In the case of each of the appellants the period of fisheries detention came to an end in accordance with clause 13 of Schedule 1A and thereafter the individual appellants were held in immigration detention. As the learned judge observed in relation to Haruma Alimudin the appellants were either in detention under clause 8 Schedule 1A of the Fisheries Management Act and an enforcement visa issued under the Migration Act or they were under immigration detention under the Migration Act until they were brought before the Court of Summary Jurisdiction.

[16]

The commencement of a sentence of imprisonment imposed in relation to a federal offence is governed by the terms of s 16E of the Crimes Act. That section is in the following terms:

(1) Subject to subsections (2) and (3), the law of a State or Territory relating to the commencement of sentences and of non-parole periods applies to a person who is sentenced in that State or Territory for a federal offence in the same way as it applies to a person who is sentenced in that State or Territory for a State or Territory offence.

(2) Where the law of a State or Territory has the effect that a sentence imposed on a person for an offence against the law of that State or Territory or a non-parole period fixed in respect of that sentence:

(a) may be reduced by the period that the person has been in custody for the offence; or

(b) is to commence on the day on which the person was taken into custody for the offence;

the law applies in the same way to a federal sentence imposed on a person in that State or Territory or to a non-parole period fixed in respect of that sentence.

(3) Where the law of a State or Territory does not have the effect mentioned in subsection (2), a court (including a federal court) in that State or Territory that imposes a federal sentence on a person or fixes a non-parole period in respect of such a sentence must take into account any period that the person has spent in custody in relation to the offence concerned.

[17]

The relevant provision in the Northern Territory is found in s 63(5) of the Sentencing Act (NT). That section provides as follows:

(5) Where an offender has been in custody on account of his or her arrest for an offence and the offender is convicted of that offence and sentenced to imprisonment it may be ordered that such imprisonment shall be regarded as having commenced on the day on which the offender was arrested or on any other day between that day and the day on which the court passes sentence.

[18]

The effect of those provisions is that the date of commencement of a Federal sentence of imprisonment for a federal offence imposed in the Northern Territory will be fixed in accordance with s 63(5) of the Sentencing Act. The question then arising is whether each appellant was "in custody on account of his ... arrest for an offence" and whether each appellant was "convicted of that offence" in the circumstances applicable to the appellant as described above.

[19]

The provisions of the Fisheries Management Act and Migration Act establish a regime of finite detention designed to allow time for the relevant authorities to determine whether to charge a non citizen or non-resident with one or more specified offences. Where the person is detained under fisheries detention the decision must be made within 168 hours. In the event that the person is not charged or no decision has been made to charge the person within the time limit then the fisheries detention will cease and be followed by immigration detention. The purpose of the fisheries detention power is to provide an opportunity for the relevant officer to determine, during the period of detention, whether or not to charge the person. Similarly, the purpose of the immigration detention is to provide time for the making of a decision whether to prosecute a "suspect" in connection with an offence and, where appropriate, for the institution and pursuit of such a prosecution.

[20]

The respondent submitted that both fisheries detention and immigration detention are to be contrasted with the power of arrest found in s 84(1)(j) of the Fisheries Management Act which permits the arrest of a person, without warrant, "whom the officer has reasonable grounds to believe has committed an offence against this Act". It was submitted that the fisheries detention and immigration detention are part of a regime of detention wholly unrelated to custody for "an offence". There is no nexus with a specific offence for the purposes of the detention. The respondent contends that s 63(5) of the Sentencing Act is therefore not applicable to cases falling within the detention regime.

[21]

It is acknowledged by the respondent that an arrest occurs whenever it is made plain by what is said or done by an officer that a suspect is no longer a free person: R v Lavery[1]: Van der Meer v The Queen[2]; R v C[3] and R v O'Donohue[4]. The respondent concedes that it follows that a person detained under fisheries detention or immigration detention is no less under arrest than a person arrested under s 84(1)(j) of the Fisheries Management Act. However, the respondent argues that the relevant difference is to be found in the purpose of the detention.

[22]

For present purposes the power to detain in the form of fisheries detention or immigration detention exists where an officer has reasonable grounds to believe that the relevant boat was used in the commission of one or more of the offences referred to in the legislation. The respondent submits that this is to be contrasted with the power to arrest a person under s 84(1)(j) where an officer must have reasonable grounds to believe that the person has committed an offence. In that circumstance, it is said, there is a nexus between the purpose of the detention and an offence of which the person might later be convicted.

[23]

The respondent submits that the purpose of immigration detention and fisheries detention is to allow time for a decision to be made whether or not to charge the detained person with an offence. If a decision is made to charge the person then the period of fisheries detention ends and the person must be brought before a magistrate and will then be remanded in custody. That custody will be a new and distinct period of custody connected to the offence with which the person has been charged and of which he may be convicted. Similarly, if the person is in immigration detention, subsequent to a decision to institute a prosecution, that period of detention is described in s 250(3)(b) as a "further period" and has a sufficient nexus with the offence to be charged. Section 63(5) of the Sentencing Act will have application in those circumstances.

[24]

The underlying thrust of s 16E of the Crimes Act is to ensure that periods spent in custody by a person awaiting sentence are to be taken into account when the sentence is imposed. The section provides that the first recourse will be to the law of a State or Territory making allowance for a reduction of sentence for time spent in custody. In the absence of such a provision the fall back, as provided for in s 16E(3), is that the sentencing court "must take into account any period that the person has spent in custody in relation to the offence concerned". The necessary nexus is present when the custody is "in relation to" the offence concerned reflecting an intention to permit a wide application to the provision.

[25]

The intended effect of s 63(5) of the Sentencing Act and other like provisions is to ensure that fairness applies in the sentencing process. By way of example a person may spend little or no time in custody prior to sentence and another person charged with exactly the same offence in exactly the same circumstances may spend a substantial amount of time in custody before sentence is passed. It would be unfair if the judge or magistrate called upon to impose sentence was unable to reflect the different periods in custody by making allowance for time spent in custody. To do otherwise would mean that one person would spend a significantly greater time in custody than another for the very same conduct. Provisions such as s 63(5) permit such unfairness to be avoided. They should be accorded the widest available application consistent with the wording of the provision.

[26]

The requirement of s 63(5) is that an offender must have been "in custody on account of his or her arrest for an offence" and then subsequently convicted of "that offence" and sentenced to imprisonment before back dating of the sentence is permitted. The approach to the interpretation of the section pressed by the respondent involves taking a narrow view of the terms of the section. The submission of the respondent is that the offender must be arrested and detained in custody for a particular offence and then sentenced for the very same offence before the section can have application. The effect of such an interpretation would be to limit the application of the provision to relatively rare circumstances. Such an interpretation should not be adopted.

[27]

In many cases when a person is first arrested it is for an offence which may not be precisely defined. The one course of conduct may give rise to the potential for the person to be charged with one or more of a number of offences. Further, as more information comes to hand, other, and possibly quite different, offences may be alleged against the person. For example, a person initially charged with an aggravated assault and detained in custody in respect of that offence may subsequently be charged with manslaughter in the event that the victim dies. Similarly, and conversely, a person may be charged with murder and, following further investigation and deliberation, subsequently plead guilty to an offence of manslaughter. If the respondent be correct in its submissions, in each of those cases the offender would not have been sentenced for the offence for which he was originally placed in custody and would not be entitled to the benefits provided by s 63(5) of the Sentencing Act.

[28]

In my opinion the section does not call for such a narrow and confined approach. Rather, what is called for is a consideration of the surrounding circumstances giving rise to the arrest. The expression "arrested for an offence" reflects the need for there to be an arrest for conduct which gives rise to an offence. When the person is subsequently convicted it is necessary to consider whether that conviction arises out of the same conduct which gave rise to the initial arrest and entry of the person into custody/detention. There need not be an exact identity between the offence initially identified and the offence of which the person was subsequently convicted and for which sentence is to be passed. It is sufficient that there is conformity between the conduct that led to the arrest and the conduct for which the person was ultimately sentenced to imprisonment. There does not need to be a nexus with a specific offence but rather a nexus between the conduct giving rise to the arrest and detention and the offence or offences for which the person is to be sentenced.

[29]

In my opinion that broad approach should be adopted in the application of s 63(5) of the Act to the circumstances of this case. Each appellant was detained in circumstances suggesting the commission of an offence under the Fisheries Management Act. They were each apprehended on a foreign boat found within the territorial sea of Australia and within the AFZ. The vessels were each Type 3 Indonesian vessels carrying fishing equipment. The information provided to the boarding officers was that the vessels were to be used for fishing.

[30]

The appellants were each arrested/detained under fisheries detention to provide an opportunity for the relevant officer to determine whether or not to charge the individual appellant with an offence under the Fisheries Management Act. That continued to be the case during the subsequent period of immigration detention. The only reason the appellants were detained during these periods "related to the offence concerned" to adopt the expression found in s 16E (3) of the Crimes Act.

[31]

For the purposes of s 63(5) of the Sentencing Act each appellant was taken into custody on account of his arrest for conduct which may have amounted to an offence under the Fisheries Management Act relating to the use of a foreign boat equipped for fishing in the AFZ and each was subsequently convicted of such an offence and sentenced to imprisonment. In those circumstances, in my view, pursuant to s 63(5) of the Sentencing Act the court may order that such imprisonment shall be regarded as having commenced on the day on which the offender was arrested or on any other day between that day and the day on which the court passes sentence.

[32]

In the circumstances it was appropriate that the sentences imposed upon the appellants be backdated to the date upon which they were taken into custody being, in the case of Haruma Alimudin, 2 November 2007, and in the case of Suriyadi Nurdin, 3 November 2007. I would allow the appeal in each case and amend the sentences accordingly.

[1] (1978) 19 SASR 515 at 516-517

[2] [1988] HCA 56; (1988) 82 ALR 10 at 34

[3] (1997) 93 A Crim R 81 at 96

[4] (1998) 34 A Crim R 397 at 401