Bahloni and Kalungan v Munn [2001] NTSC 101

Supreme Court of the NT|2001-11-16|Before: Riley J, Martin CJ, Bailey J

Criminal law - Appeal against sentence - use of a foreign boat for commercial fishing in the Australian Fishing Zone - imposition of an appropriate penalty by way of fine - enforcement of the penalty by setting default period of imprisonment -principles applicable to the setting of default periods which are "just in all the circumstances" - need for general and personal deterrence - sentence not manifestly excessive - appeal dismissed.

Mackay v Diman (1999) NTSC 96, unreported, Riley J, delivered 7 September 1999 - followed

Aruli (1999) WASCA 1042, unreported, Western Australia Court of Appeal, delivered 31 March 1999 - followed

La Ode Arifin, unreported, Full Court of the Supreme Court of Western Australia, delivered 18 June 1991 - followed

Sanara v Munn (2000) NTSC 63, unreported, Martin CJ, delivered 6 June 2001- referred

Newcastle v Coffey [2000] NTSC 21; (2000) 9 NTLR 168 - referred

Fakie and Ishak v Shelverton [2000] WASCA 177; (2000) 115 A Crim R 381 - referred

Kumantjara v Harris [1992] NTSC 64; (1992) 109 FLR 400 - referred

Maynard v O'Brien (1991) 78 NTR 16 - referred

Bahloni and Kalungan v Munn [2001] NTSC 101

[1]

These two appeals against sentence were heard together as each raises a similar issue concerning the setting of default periods of imprisonment for non-payment of fines imposed for breaches of Commonwealth legislation.

[2]

Tudik Bahloni ("Bahloni") was convicted in the Darwin Court of Summary Jurisdiction after pleas of guilty of the following offences:

a)

breach of a recognizance (s 20A Crimes Act 1914 of the Commonwealth) imposed on 26 July 2001 at the Darwin Court of Summary Jurisdiction. The recognizance was in the sum of $5,000 and required Bahloni to be of good behaviour for a period of 4 years from the 26 July 2001. The recognizance was imposed after Bahloni had pleaded guilty to using a foreign boat for commercial fishing in the Australian Fishing Zone ("AFZ") contrary to s 100(2) of the Fisheries Management Act 1991 of the Commonwealth ("Fisheries Act"). On the same occasion Bahloni was also convicted and fined $2,000 with 7 days imprisonment in default for having in his possession or charge fishing equipment contrary to s 101(2) of the Fisheries Act;

b)

using a foreign boat for commercial fishing on 6 September 2001 in the AFZ contrary to s 100(2) of the Fisheries Act;

c)

having in his possession or charge on 6 September 2001 in the AFZ a foreign boat equipped with fishing equipment contrary to s 101(2) of the Fisheries Act; and

d)

providing a false name on 6 September 2001 contrary to s 108 of the Fisheries Act.

[3]

On 27 September 2001, the learned sentencing magistrate imposed the following penalties upon Bahloni:

a)

breach of recognizance - the recognizance be forfeited in the sum of $5,000, in default 100 days imprisonment;

b)

s 100(2) - a fine of $1,250;

c)

s 101(2) - a fine of $1,000; and

d)

s 108 - a fine of $250.

[4]

With respect to the total fines of $2,500 for the Fisheries Act offences, the learned magistrate ordered Bahloni to be imprisoned for a period of 50 days. His Worship allowed no time to pay any of the fines and further ordered that the 50 days default period for the Fisheries Act offences was to be served concurrently with the 100 days default period for the breach of recognizance. Accordingly, Bahloni's effective head sentence was a fine of $7,500 with 100 days imprisonment in default with no time to pay.

[5]

On the same day that the learned magistrate dealt with Bahloni, he also convicted Malik Kalungan ("Kalungan"), upon his own plea, of having in his possession or charge on 9 September 2001 in the AFZ a foreign boat equipped with fishing equipment, contrary to s 101(2) of the Fisheries Act. Kalungan was fined $10,000 with 200 days imprisonment in default with no time to pay.

[6]

In the case of both Bahloni and Kalungan the learned magistrate accepted that each was an Indonesian fisherman of limited means and very unlikely to be able to pay a substantial fine. Each of the appellants was unlawfully in Australia at the time of their arrest and neither would be permitted to earn money in Australia which could be used to pay a fine.

[7]

The learned magistrate considered the breach of Bahloni's recognizance six weeks after he had undertaken to be of good behaviour for four years was "blatant". His Worship expressly recognised the need for Bahloni's sentence to include a strong element of personal deterrence.

[8]

In the case of Kalungan, the learned magistrate noted that this appellant had been convicted of Fisheries Act offences of the same kind as the present matter on three previous occasions in 1995, 1997 and in January 2001. With respect to the 1997 and January 2001 convictions he had been imprisoned twice for periods of 50 days in default of payment of fines. The learned magistrate found Kalungan was "recalcitrant" and deserving of condign punishment.

[9]

Both appellants rely on an appeal ground drafted in the following terms:

"The learned magistrate in setting the period(s) in default fell into error by failing to distinguish correctly between the punishment aspect of the orders insofaras he took into account irrelevant considerations and failed to take into account relevant considerations in setting the default period(s)"

[10]

In relation to Kalungan, his counsel Mr Read sought and was granted leave to add a further appeal ground in the following terms:

"That the sentence imposed by way of fine was manifestly excessive in so far as:

(a) The learned Magistrate failed to give sufficient weight to the defendant's financial circumstances and ability to pay the fine; and

(b) The fine imposed was outside the range of fines imposed in the Northern Territory on offenders of similar circumstance to the defendant.

(c) The learned Magistrate gave too much weight to the sentencing considerations of general and specific deterrence."

[11]

The general principles applicable to an appeal against sentence were conveniently summarised by the Federal Court (Brennan, Deane and Gallop JJ) in R v Tait (1979) 46 FLR 386 at 387-8:

"Those principles were expressed in Harris v The Queen [1954] HCA 51; (1954) 90 CLR 652 which was followed by this Court in Kovac v The Queen (1977) 15 ALR 637 at 642-643 and which contains a citation from Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509 at 519-520: '... the appeal is from a discretionary act of the court responsible for the sentence. The jurisdiction to revise such a discretion must be exercised in accordance with recognized principles. It is not enough that the members of the court would themselves have imposed a less or different sentence, or that they think the sentence over-severe. There must be some reason for regarding the discretion confided to the court of first instance as improperly exercised. This may appear from the circumstances which that court has taken into account. They may include some considerations which ought not to have affected the discretion, or may exclude others which ought to have done so. The court may have mistaken or been misled as to the facts, or an error of law may have been made. Effect may have been given to views or opinions which are extreme or misguided. But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound. In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this court to cases where the sentence appears unreasonable, or has not been fixed in the due and proper exercise of the court's authority'.

An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error (see generally, Skinner v The King [1913] HCA 32; (1913) 16 CLR 336 at 339-340; R v Withers [1925] NSWStRp 38; (1925) 25 SR (NSW) 382 at 394; Whittaker v The King [1928] HCA 28; (1928) 41 CLR 230 at 249; Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293."

[12]

The offences created by ss 100 and 101 of the Fisheries Act provide for punishment by means of a fine only. Notwithstanding the unavailability of imprisonment as a punishment, courts have recognized on many occasions that the proper management of Australian marine resources is undermined by offences of the kind committed by the appellants and that there is a special need to deter offenders where surveillance and detection is difficult and costly (see generally MacKay v Diman [1999] NTSC 96, unreported, Riley J, delivered 7 September 1999 and cases cited therein). For present purposes, it is unnecessary to explain in detail the reason why imprisonment is not an available punishment for offences such as those created by ss 100 and 101 of the Fisheries Act. In essence, for imprisonment to be an available penalty, this would need to be agreed between Australia and the Republic of Indonesia pursuant to the United Nations Convention on the Law of the Sea. Presently, there is no such agreement. For a more detailed explanation see Aruli [1999] WASCA 1042, unreported, Western Australia Court of Appeal, delivered 31 March 1999.

[13]

In Aruli, a challenge was mounted to the validity of imposing default periods of imprisonment under State laws for Commonwealth Fisheries Act offences of the present kind. The Western Australia Court of Appeal upheld the validity of default periods of imprisonment. In relation to the State provisions for such default periods Murray J held:

"To apply it is not to provide a penalty which includes imprisonment. The penalty is the monetary penalty. The enforcement of its payment may be avoided by paying the penalty. In that way it is demonstrated that any imprisonment suffered is not by way of the imposition of a penalty but by way of the ordinary process of providing sanctions to enforce compliance with the law."

[14]

Mr Read does not seek to challenge the correctness of the decision in Aruli. Similarly, Mr Read does not suggest that the learned magistrate erred in imposing fines that were likely to be in excess of the appellants' capacity to pay and allowing no time to pay. The validity of such an approach was upheld by the Full Court of the Supreme Court of Western Australia in La Ode Arifin, unreported, delivered 18 June 1991, BC 9101085; Pidgeon J (Franklyn and Walsh JJ agreeing) held:

"... where the only option open is a fine and where the option such as a bond is otherwise excluded by the facts of the case, then the fine must reflect the gravity of the offence and must be imposed even though it is known that the defendant will serve a default term by reason of his not being permitted to be in the jurisdiction in order to pay the fine by other means."

[15]

That proposition was subsequently endorsed in Aruli, supra and has been consistently applied in both Western Australia and the Northern Territory in cases of the present kind - at least in relation to offenders with a history of similar offending (see Sanara v Munn [2000] NTSC 63, unreported, Martin CJ, delivered 6 June 2001).

[16]

The laws of the Northern Territory relating to the enforcement or recovery of a fine imposed on an offender apply to a person convicted in the Territory of an offence against a law of the Commonwealth (s 15A Crimes Act). It is not suggested that there is any means by which a fine imposed upon persons such as the present appellants could be enforced other than by imprisonment. In the Territory (cf Western Australia) there is no fixed formula in determining the default period by reference to the amount of a fine, but it must not exceed one day in prison for each $50 of the fine (ss 81 and 85 of the Justices Act and see Newcastle v Coffey [2000] NTSC 21; [2000] 9 NTLR 168).

[17]

In relation to the appellants, the learned magistrate fixed the default periods by applying the maximum of one day for each $50 of the fines and the amount of the forfeited recognizance (albeit in Bahloni's case ordering three default periods totalling 50 days to be served concurrently with the default period of 100 days imposed for forfeiture in the sum of $5,000 for breach of recognizance).

[18]

It is the submission of Mr Read that in applying the maximum ratio in determining the length of the default periods, the learned magistrate erred by failing to distinguish properly between the two judicial functions that he was required to exercise, namely the imposition of an appropriate penalty by way of fine and the enforcement of that penalty by way of setting a default period of imprisonment.

[19]

Mr Read submitted that the two functions (sentence and enforcement) are separate and are directed at different purposes. In his submission, the sentencing aspect is concerned with achieving the relevant objectives of sentencing whereas the enforcement aspect (by the setting of a default period of imprisonment) is concerned with ensuring that the court's orders are carried out. In support of his submissions, Mr Read referred to the passage in the judgment of Murray J in Aruli, supra, which I have set out at para [13].

[20]

Mr Read submitted that in the case of offenders, such as the appellants, the inability to pay any fine imposed was an important factor in determining the default period to be set in accordance with the principles discussed by Riley J in Newcastle v Coffey, supra. In that case, Riley J held that it was inappropriate to prescribe the conditions or criteria to be considered in setting an appropriate default period upon non-payment of a fine. His Honour stressed that any attempt to do so would be at the risk of fettering judicial discretion. Riley J did suggest, however, at para [19]:

"Matters that may be considered may include those set out in s 5 of the Sentencing Act and, in particular, the requirement that the punishment of the offender shall be 'to an extent or in a way that is just in all the circumstances'".

[21]

It was the submission of Mr Read that the appellants' inability to pay fines reduced their moral culpability when their situation was compared with an offender who had the means to pay a fine but wilfully refused to do so. Further, it was not open to offenders such as the appellants to discharge their liability to pay by means available to others in the Australian community such as participating in an approved project (s 27(10) of the Sentencing Act: one hour for each $12.50 remaining unpaid). In these circumstances, Mr Read submitted that the setting of a default period which is "just in all the circumstances" required some discounting from the maximum ratio of one day for each $50 provided by the Justices Act. Mr Read did not suggest any particular discount.

[22]

For the respondent, Mr Fisher submitted that the learned magistrate demonstrated by his reasons that he was aware of, and took account of, the need to fix default periods which were "just in all the circumstances". In his submission, application of the maximum ratio for the setting of default periods pursuant to the Justices Act could not be excluded simply because the appellants were persons who were unable to pay anything but a nominal fine and would inevitably have to serve the default period. Mr Fisher submitted that the only issue which needed to be addressed was whether the learned magistrate had imposed a sentence, having regard to both the amount of the fine and the default period, which reflected the level of seriousness of the offence and was also just in all the circumstances. In his submission, in addressing that issue, it was not helpful to attempt to divide the sentencing process into discrete stages and subject each stage to analysis without regard to the overall result.

[23]

A staged approach to sentencing in other contexts may have advantages and attractions (for example, expressly indicated discounts for guilty pleas or greater weight being afforded to subjective mitigating factors over the objective seriousness of an offence in deciding whether to suspend or partly suspend a sentence of imprisonment). However, I consider that the practical approach advanced by the respondent's submissions has a good deal of merit in the context of the present appeals.

[24]

Mr Read fairly and correctly conceded that the learned magistrate had taken into account the appellants' inability to pay in determining the financial penalties imposed upon the appellants. There is nothing to suggest that he did not similarly take into account that inability to pay in fixing the default periods of imprisonment. I do not think that it assists to introduce notions of moral relativities in an attempt to differentiate between punishment and enforcement in cases such as the present.

[25]

The learned magistrate was in no doubt that any fines he imposed upon the appellants would not be paid and that the appellants would serve any default periods of imprisonment. While it is true that the service of imprisonment is not to be suffered as a penalty for offending, but as part of the ordinary process of providing sanctions to enforce compliance with the law, default periods of imprisonment and the level of fines are both required to reflect the level of seriousness of the offence and be just in all the circumstances.

[26]

In Newcastle v Coffey, supra, Riley J observed at para [23]:

"... any period of imprisonment in default of payment must reflect the seriousness of the offence and also be just in all the circumstances."

[27]

In Fakie and Ishak v Shelverton [2000] WASCA 177; (2000) 115 A Crim R 381, Heenan J in considering appeals against sentence by two Indonesian fishermen for offences under the Fisheries Act observed at p 385:

"Deciding upon the amount of the fines has its difficulties. Because the appellants have no capacity to pay, the imposition of any fine necessarily results in each serving imprisonment by way of default. It follows that, in order to ensure that the penalty fits the offending conduct, the court must bear in mind the period which will be served by way of default."

[28]

The legislation of Western Australia, in contrast to the Territory's Justices Act, provides (in effect) for a fixed ratio of one days default imprisonment for each $150 of unpaid fine. Accordingly, in that State there is a direct relationship between the amount of a fine and the period to be served in prison for non-payment. While in the Northern Territory there is a discretion to fix the default period (subject to a maximum of not more than one day in prison for each $50 of unpaid fine) I consider that it is self-evident that a sentencer is required to consider both the amount of a fine and the default period imposed in respect of it to ensure a just disposition in all the circumstances of a particular case. Where an offender has no capacity to pay and the imposition of anything other than a nominal fine will necessarily result in the offender serving a term of imprisonment by way of default, the setting of an appropriate fine and the default period cannot be exercises carried out in isolation. From an offender's viewpoint, whether he is fined $10,000 with 200 days imprisonment in default or fined $14,000 with 200 days imprisonment in default has no practical significance. In the former he would "cut out" his fine at $50 per day and in the latter at $70 per day. On either approach he would be imprisoned for 200 days. In the case of an offender with no means to pay a fine, the precise calculation to arrive at the actual term of imprisonment which he will serve is of little more than academic interest. In terms of the administration of the criminal justice system, it is the combined fine and default period which needs to be assessed as just in all the circumstances rather than the component parts of the sentence.

[29]

In relation to the appellant Bahloni, no complaint is made as to either the decision of the learned magistrate to forfeit the recognizance of $5,000 or as to the level of the fines (totalling $2,500) for the new offences. The learned magistrate in arriving at an effective default period of imprisonment of 100 days said:

"I have not had much regard to (the) $50 a day rule, save that it happens to work out to about what I reckon he ought to serve, which is three months, 100 days."

[30]

This comment was made in the context of forfeiture of the recognizance. The learned magistrate's decision to order that the default period for the fines imposed for the new offences was to be served concurrently with the default period imposed for non-payment of the forfeited recognizance is a clear demonstration that His Worship had both the total financial penalty and the default period in mind in determining an appropriate disposition of the matters before him. I am not persuaded that the learned magistrate's approach was unreasonable or discloses any error in the due and proper exercise of his sentencing discretion.

[31]

In the case of the appellant Kalungan, for the reasons I have endeavoured to state, I am similarly not persuaded that the learned magistrate's decision to adopt the maximum permissible ratio of one days imprisonment for each $50 of the fine unpaid discloses any error which would warrant appellate intervention. Aside from the learned magistrate's approach generally to the imposition of the default period, Mr Read sought to rely on the additional appeal ground that the fine of $10,000 with 200 days imprisonment in default is manifestly excessive.

[32]

In summary, Mr Read submitted that the learned magistrate had failed to give sufficient weight to the appellant's financial circumstances and inability to pay the fine while, correspondingly, giving too much weight to the issues of general and personal deterrence. Further, it was submitted that the fine imposed was outside the range of fines imposed in the Northern Territory on offenders in similar circumstances to that of the appellant.

[33]

The maximum fine for Kalungan's offence under s 101(2) of the Fisheries Act where dealt with by the court of summary jurisdiction was $27,500. If Kalungan had been prosecuted on indictment the maximum fine would have been $275,000. The learned magistrate was required to exercise his discretion in relation to the maximum penalty available on indictment (Kumantjara v Harris [1992] NTSC 64; (1992) 109 FLR 400) and if His Worship considered that the offence warranted a greater penalty than he was permitted to impose, he was obliged to refer the matter to the Supreme Court for sentence (Maynard v O'Brien (1991) 78 NTR 16).

[34]

Mr Read fairly and correctly conceded that the learned magistrate had taken into account the appellant's inability to pay anything other than a nominal fine and that the appellant had deliberately set out to poach Australia's fishing resources. Further, Mr Read accepted that it was rare to find a repeat offender before the courts with a record of Fisheries Act offences as bad as that of the appellant. The appellant had been convicted of similar offences to the present matter on three occasions. He had served default periods of imprisonment for non-payment of fines twice before, most recently in January 2001. In such circumstances, I consider that the learned magistrate was not in error in emphasising the need for personal as well as general deterrence in this appellant's case. The serious nature of offences against the Fisheries Act and the costs and difficulty of detection has been acknowledged by the courts on numerous occasions (for a recent example see MacKay v Diman, supra).

[35]

On the hearing of Kalungan's appeal, I received schedules which contain particulars of all cases of the present kind to come before Darwin magistrates in the periods 19 May 1995 to 11 August 1999 and 1 January to 20 October 2001. The schedule bears out the prevalence of Fisheries Act offences. The 1995-1999 schedule does not indicate the extent to which offenders had previous convictions for similar offences. The current year schedule does give some indication of this, but the details of offences and sentences are necessarily very brief. Of the 83 offenders listed as having had their matters finalised, only one offender had more than two previous similar convictions. He was sentenced to a fine of $6,000 with 90 days imprisonment in default with no time to pay. There are examples of offenders with two previous convictions receiving fines of $12,000 and $16,000 with default terms of 75 and 60 days respectively.

[36]

I do not consider that the schedules provide sufficient examples of sentences imposed upon repeat offenders to conclude that there is an established range of fines and associated default periods of imprisonment for offenders with a history of offending similar to that of Kalungan.

[37]

I consider that the learned magistrate was correct in his description of Kalungan as "recalcitrant" and deserving of punishment. The appellant had not been deterred in the past by substantial fines and periods of imprisonment in default. On the basis of the schedules provided to me, the appellant's sentence while stern does not appear to be outside the range of a sound exercise of sentencing discretion.

[38]

I do not consider that the learned magistrate's approach in sentencing Kalungan was attended by any error of fact or law. In light of the deliberate and exploitive nature of the offending coupled with the failure of previous attempts to deter him, I am far from persuaded that Kalungan's sentence is manifestly excessive.

[39]

For the reasons stated above, the appeals against sentence by Tudik Bahloni and Malik Kalungan are dismissed.

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