Court of Appeal (WA)|2004-11-26|Before: Mr J, Smith J

Djou v Commonwealth Department of Fisheries [2004] WASCA 282 (26 November 2004)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : DJOU -v- COMMONWEALTH DEPARTMENT OF FISHERIES [2004] WASCA 282

Appeal - Sentence - Foreign boat used for commercial fishing - Being in charge of foreign boat equipped for fishing - Imprisonment not a sentencing option - Fines and period of imprisonment to be served in default of payment - Whether fines excessive - Impecunious offender - Whether period of default imprisonment excessive - Principles of sentencing - Capacity of offender to pay - Basis of fixing default period of imprisonment

Respondent : Commonwealth Director of Public Prosecutions

Aruli v Mitchell, unreported; FCt SCt of WA; Library No 990161; 31 March 1999

Bahloni & Kalungan v Munn [2001] NTSC 101; (2001) 125 A Crim R 144

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

Flego v Lanham (1983) 32 SASR 361

Fraser v The Queen (1985) 9 FCR 397

Perez v The Queen (1999) 21 WAR 470

R v Repacholi (1990) 52 A Crim R 49

R v Wilson, unreported; FCt SCt of WA; No 120/88; 20 October 1988

Ribot-Cabrera v The Queen [2004] WASCA 101

Sgroi v The Queen (1989) 40 A Crim R 197

R v Nishanka, unreported; DCt of WA (Viol DCJ); 391 of 2003; 14 March 2003

1 ROBERTS-SMITH J: This is an appeal against sentence imposed by his Worship Mr Bloemen SM sitting in the Court of Petty Sessions at Broome on 21 January 2004.

2 The appellant, an Indonesian national, pleaded not guilty to two charges under the Fisheries Management Act 1991 (Cth) ("the FMA"), namely using a foreign boat for commercial fishing without the relevant licence contrary to s 100(2) and further of having in his charge such a boat equipped with equipment for fishing contrary to s 101(2) of the FMA. Both offences are strict liability offences. Four other persons were charged with similar offences to which one pleaded guilty on 21 November 2003 and two others pleaded guilty on the morning of the trial on 21 January 2004.

3 Following a short trial during which the learned Magistrate heard evidence from a number of Customs officers and the appellant, he found the appellant and the remaining co-accused, Joyce Dopongnuha, guilty and imposed on the appellant a fine of $14,000 with 10 months' imprisonment in default. There is some dispute between the parties as to whether the learned Magistrate imposed one global fine of $14,000 for both offences, or $14,000 on each offence. This has sprung from an apparent ambiguity in the learned Magistrate's sentencing remarks (outlined below at [52]) and the complaints, on which "$14,000 fine" is written on each complaint. However I shall deal with this matter below.

4 By application filed 28 July 2004, the appellant sought an extension of time and leave to appeal. The application was supported by an affidavit of Philip James Vincent sworn 21 July 2004 which annexed the complaints in respect of all five co-offenders. The sentences imposed on the appellant's co-offenders were as follows:

Nuel Mobubung - $7,000 Good Behaviour Bond for 5 years

Raman Betawi - $7,000 Good Behaviour Bond for 5 years

Joyce Dopongnuha - $9,000 fine or 7 months imprisonment

Welem Mandoi - $7,000 Good Behaviour Bond for 4 years

5 Leave to appeal was granted by Barker J on 27 August 2004 on the grounds that the learned Magistrate:

"(a) imposed a penalty of a fine when the appropriate penalty was a good behaviour bond;

(b) further and/or alternatively, imposed a fine or fines that were excessive;

(c) further and/or alternatively, set a period of imprisonment in default of a payment that was excessive; and

as a consequence of his failing to consider, or adequately to consider:

(i) the standards of sentencing customarily observed for offences of this nature;

(ii) the Applicant's antecedents and circumstances, particularly that he was a first offender and a foreign national;

(iii) the ability of the Applicant to pay a fine of the amount imposed;

(iv) the fact that those of the Applicant's co-offenders who were also first offenders, but had pleaded guilty, had been placed on a good behaviour bond and repatriated to their country of origin; and

(v) placed disproportionate weight in sentencing the applicant on the fact that the applicant had defended the proceedings."

6 At 4:00pm on 11 November 2003, Coastwatch surveillance aircraft located an Indonesian type 2 shark fishing vessel at a position 41 nautical miles south of the southern boundary of the MOU inside the Australian Fishing Zone. The Australian Customs Vessel Dame Roma Mitchell was in the immediate area and tasked to respond. At 4:30pm the Dame Roma Mitchell located the vessel in question and a boarding party boarded it at 5:00pm. The party ascertained that it was an Indonesian sail powered shark fishing vessel "Asmara 02". The appellant was the captain, with four crew on board, all from Papela, Roti in Indonesia. The vessel's owner was Asis Tong, also from Papela, Indonesia.

7 The crew had departed Papela on 1 November 2003 and had been in the area for one day. Navigation was by way of magnetic compass. The purpose of the voyage was to catch shark for the fin for sale in Papela, although the appellant stated that they hadn't fished for three days and hadn't caught any shark. A search of the vessel revealed approximately 1000 metres of longline, 71 shark hooks and five hand lines, amongst other equipment.

8 During the initial search it was revealed that the rudder and rudder post had been removed and were not visible. An object could be seen attached to the keel underwater where the rudder would normally be secured. A Customs officer dived underwater and cut free a mesh bag which was found to contain 35 pieces of shark fin. The appellant stated they had caught the fin at least three days prior. The appellant was advised that his vessel was in Australian waters and as a result would be escorted to Broome for investigation.

9 On arrival at Broome, the appellant told Department of Fisheries officers that he had lost the rudder three days earlier and had drifted south into Australian waters. When asked why he had hidden the shark fin underwater, he stated that it was because he was frightened. During the course of the trial the appellant later said that he hid the fin because he had had fin confiscated from him on a previous occasion when he encountered a navy patrol boat 2 miles outside the Australian Fishing Zone and that this had caused him more debt at home.

10 The appellant participated in a video record of interview with Fisheries officers. During the interview he was shown a photograph of his vessel that had been taken from the Coastwatch aircraft on the day of his apprehension. The vessel was underway and being steered by one of his crew. When the appellant saw the photograph, he identified it as his vessel, identified the crew that could be seen in the photograph and stated who was steering the vessel. He also claimed it was a photograph taken three days earlier by another Coastwatch aircraft. He was then told that the photograph had been taken on the same day as his apprehension and as it was being steered by the tiller attached to the rudder, then he could not have lost his rudder three days earlier.

11 It was then put to the appellant that he had hidden the shark fin underwater and removed the rudder to avoid apprehension. The appellant responded that he had made a makeshift rudder to steer the vessel. This was not found during a search of the vessel at Broome, nor was it located by Customs officers at the time they boarded the vessel.

12 The appellant was unrepresented at trial and the information available to the court about him was negligible, save that he had no previous convictions. When asked by the learned Magistrate if there was anything he wished to put before the Court before sentence was passed, the appellant declined to say anything.

13 Sections 100(4) and 101(4) of the FMA provide that where an offence under those respective sections is dealt with by a court of summary jurisdiction, the court may impose a fine not exceeding 250 penalty units. "Penalty unit" is defined in s 4AA of the Crimes Act 1914 (Cth) as $110. Hence, as submitted by the prosecutor following the trial, the maximum fine that could be imposed on the appellant in respect of each offence was $27,500.

14 Section 20 of the Crimes Act allows for a good behaviour bond to be ordered in respect of a federal offence and specifies the conditions that may be imposed as part of such an order; however, for the present purposes it is not necessary to detail that section here.

15 At the hearing of the appeal, counsel for the appellant chose not to pursue the grounds based on a parity argument, namely those in pars (a) and (iv), after conceding that the situation of the appellant as captain of the vessel placed him in a significantly different position to those of his co-offenders.

16 Additionally, counsel for the appellant chose not to advance the ground in par (v), namely that the learned Magistrate placed disproportionate weight in sentencing the appellant on the fact that the appellant had defended the charges.

17 In light of the grounds of appeal and the submissions advanced at the hearing of the appeal, the issues to be decided in this case are:

(1) Whether it is proper in law to impose a fine and default period of imprisonment where the offender has no capacity to pay a fine and where imprisonment ab initio is not a sentencing option under the relevant legislation;

(2) Whether the learned Magistrate imposed a fine on the basis of what he considered was an appropriate period of imprisonment in default, rather than the monetary amount that was appropriate in the circumstances of the case;

(3) Whether the fine and default period of imprisonment imposed was excessive, given the standards of sentencing customarily observed for offences of this nature and the appellant's antecedents and circumstances.

18 It was submitted there is no express provision for imprisoning an offender under the FMA because of Australia's obligations under the United Nations Convention on the Law of the Sea (UNCLOS). Article 73(3) of UNCLOS provides that:

"3) Coastal State penalties for violations of fisheries laws and regulations in the exclusive economic zone may not include imprisonment, in the absence of agreements to the contrary by the States concerned, or any other form of corporal punishment."

19 The relationship between UNCLOS and the FMA was recently discussed in Ribot-Cabrera v The Queen [2004] WASCA 101. EM Heenan J, with whom Steytler and Le Miere JJ agreed, stated (at [58]):

"The United Nations Convention on the Law of the Sea (UNCLOS) was adopted by the Third United Nations Conference on the Law of the Sea and was signed for Australia on 10 December 1982. An instrument of ratification was deposited for Australia on 5 October 1994 including ratification of Article 73 - see Australian Treaty Series 1994 No 31 - which designated that the treaty came into force generally and for Australia on 16 November 1994. It follows from this that while parts of the 1982 UNCLOS have been expressly incorporated in the provisions of the FMA, and hence have become part of the domestic law of Australia, not all parts of the treaty have been so incorporated notwithstanding that Australia is a signatory to, and has ratified, the entire treaty. Article 73 remains of that status not being incorporated as part of the municipal law of this country."

20 His Honour then went on to refer to Aruli v Mitchell, unreported; FCt SCt of WA; Library No 990161; 31 March 1999 (Kennedy, Pidgeon and Murray JJ):

"Shortly stated, the ratio of that decision is that where fines are imposed on a person convicted of an offence established by s 100 and s 101 of the FMA (1991) by a Western Australian Court of Petty Sessions, and where orders for imprisonment of each offender are also made for a specified period or until the fine was paid, those sentences of imprisonment are validly imposed and can be enforced under Australian law notwithstanding that the penalty of imprisonment is precluded under UNCLOS Article 73. The reason is because that Article is not part of the municipal law of Australia." (at [60])

21 Hence, the fact that where imprisonment ab initio is not a sentencing option available under the relevant statute, does not preclude the imposition of a fine with a period of imprisonment in default.

22 However, there remains the further issue whether it is proper at law to impose a fine and default period of imprisonment where the offender has no capacity to pay.

23 The nature of a fine in the sentencing process was reflected upon by Owen J in Perez v The Queen (1999) 21 WAR 470 per Owen J at 483, in which his Honour referred to the comments of Malcolm CJ in Sgroi v The Queen (1989) 40 A Crim R 197 at 200-201 that:

"The purpose of a fine is primarily to punish the offender. Consequently, the amount of the fine must be such as will constitute an appropriate punishment having regard to the offender's capacity to pay. Thus, the amount and method of payment of the fine will need to take into account, as far as practicable, the financial resources and income of the offender and the nature of the burden that its payment will impose. The approach to be adopted in the case of a fine has been considered by this Court in R v Cobby (unreported, Court of Criminal Appeal, WA, Full Court, No 19 of 1983, 19 April 1983). Wickham, Wallace and Pidgeon JJ said:

'There can be a number of difficulties associated with a fine; for example: courts should avoid giving the impression that a rich person can purchase absolution from a crime for cash or that a poor person can do so by instalments. It is also the case that a fine may be effectively a greater punishment upon a poor person than upon a rich person. Further in the case of joint offences it would not seem right to fine a rich person more than a poor person when the circumstances are much the same and neither would it seem right to fine a rich person less simply because the poor person could not pay more. There is also the danger that an offender may be tempted to commit another offence in order to raise the money to pay the fine. These are only some of the difficulties which might arise. We mention them merely to indicate that the opinion which we have expressed must necessarily be tempered to the circumstances of the particular case.

Where the fine is appropriate it should not be used merely as a soft option but should have some real sting in it from the point of view of the offender and be sufficiently punitive to act as a general deterrent.'

This statement was approved in R v Loughman, (unreported, Court of Criminal Appeal, WA, No 37 of 1983, 23 June 1983) and followed in R v Middleton (unreported, Court of Criminal Appeal, WA, No 1 of 1989, 21 March 1989).

The question whether the amount of a fine is within the range of a sound discretionary judgment is to be determined in the same manner as the same question when asked with respect to a sentence of imprisonment, save that in the case of a fine considerations of the offender's financial means or capacity are relevant in determining the amount of a fine which will constitute punishment proportionate to the gravity of the offence in the light of the circumstances under which it was committed, the antecedents of the offender and, where appropriate the objective of general deterrence."

24 It is a well-established principle of law that in sentencing an offender, it is generally improper to impose a fine that is beyond the capacity of the offender to pay. As Owen said in Perez, at [47]:

"Quite clearly, the general rule is that a fine should not be imposed without an assessment of the means of the offender to pay it, and should not be imposed where the offender has no means to pay. I have already referred to Sgroi in this respect. See also Flego v Lanham (1983) 32 SASR 361 at 366; Fry v Bassett (1986) 85 FLR 334 at 336; Rahme v The Queen (1989) 43 A Crim R 81 at 86. The same general principle has statutory recognition, at least in so far as it relates to an inquiry concerning the means of the offender: Crimes Act 1914 (Cth), s 16A(2)(m) and s 16C(1)." (sections outlined below)

(See also: Fraser v The Queen (1985) 9 FCR 397 at 7, 12 per Davies, Kelly and Beaumont JJ; R v Repacholi (1990) 52 A Crim R 49 per Malcolm CJ at 51-52)

25 Counsel for the respondent submitted that while the general rule is that a fine should not be imposed where the offender has no means to pay, this is not necessarily a rule that is "utterly obligatory in every particular circumstance." It was submitted that if the general rule were to apply in every case, then courts, notwithstanding the fact that they may be dealing with recidivist, impecunious offenders, would never be able to properly impose a fine because inevitably such an offender would have no capacity to pay. Further, where imprisonment ab initio is not a sentencing option under the relevant legislation, as it is not under the FMA, the only sentencing option available to a court would be a good behaviour bond, which would not be appropriate in the case of recidivist offenders.

26 It was submitted there is a body of authority which supports a departure from the general rule, particularly with respect to offences of this kind.

27 Aruli (supra) was an appeal against sentence by three Indonesian fishermen - La Nunu, Aruli and La Bau - convicted of offences under the FMA. La Bau was the skipper of the vessel and was charged with the same two offences as the appellant in this case, while La Nunu and Aruli were only charged under s 100(1) of the FMA. Each appellant pleaded guilty and admitted numerous prior convictions for which good behaviour bonds and, in the case of La Bau and La Nunu, imprisonment had been imposed. La Nunu was fined $12,500 and was ordered to be imprisoned until the fine was paid, provided that the term of imprisonment was not to exceed 250 days. Aruli was fined $15,000 with default imprisonment of no more than 300 days. The sentencing Judge concluded that La Bau was the most serious offender, was undeterred by previous punishment and unrepentant, and imposed a global fine of $20,000 with default imprisonment of no more than 400 days.

28 The Court dismissed the appeals in respect of all three appellants and in relation to the issue of capacity to pay Kennedy J said (at 10):

"In this case, it was quite clear that the offending fishermen had no means of paying fines of any significant amount, and certainly no means of paying fines of the amounts in fact imposed. However, it has for some years been recognised that the difficulty of enforcing compliance with fisheries legislation along the length of the Australian coastline calls for a stern deterrent if the legislative restrictions are to be enforced - see Cheatley v The Queen [1972] HCA 63; (1972) 127 CLR 291, per Barwick CJ, at 296. Accordingly, in Arifin v Ostle, unreported; FCt SCt of WA; Library No 8923; 18 June 1991, this Court held that a fine must reflect the gravity of the offence and must be imposed even though it is known that the offender will inevitably serve a default term of imprisonment. In the circumstances, I do not consider that the amounts of the fines fall outside the range of a fair discretionary judgment." (My emphasis).

29 Counsel for the respondent also relied upon Fakie & Ishak v Shelverton [2000] WASCA 177; (2000) 115 A Crim R 381, where in dealing with two offenders charged with the same offences as the appellant in this case, Heenan J followed Aruli (supra) and ruled that a fine was the only appropriate penalty, notwithstanding an incapacity on the part of the offenders to pay a fine.

30 The facts in Perez were somewhat different to those of the other authorities I have outlined above. The applicant, a Spanish national and master of a foreign vessel, pleaded guilty in the District Court to six charges under the FMA. He fished within the Australian Fishing Zone under direction from his employer, the owner of the vessel, who was out of the jurisdiction and lodged within the jurisdiction securities which included a deed to pay up to $200,000 to secure payment of any fine which might be imposed. The private assets of the applicant suggested he did not have the capacity to pay a large fine. The sentencing Judge took into account the deed entered into by the owner and fined the applicant the total sum of $100,000. The applicant appealed the fine on the ground that it was manifestly excessive. The question on appeal was whether a sentencing Judge can impose a fine without taking into account the personal financial means of the offender to pay where a third party has already lodged cash security to cover the amount likely to be ordered. The appeal was allowed by Owen and Wallwork JJ, Pidgeon J dissenting, and a $24,000 total fine substituted.

31 As I have indicated above, the majority held that the general rule is that a fine should not be imposed without an assessment of the means of the offender to pay it, and should not be imposed where the offender has no means to pay. And as Owen J noted (supra, at [47] and [57]) that general principle has statutory recognition, at least insofar as it relates to an inquiry concerning the means of the offender, in s 16A(2)(m) and s 16C(1) of the Crimes Act 1914 (Cth).

32 In addition to the general factors prescribed in s 16A of the Crimes Act, s 16C sets out those matters to which the court must have regard in imposing fines:

"(1) Subject to subsection (2), before imposing a fine on a person for a federal offence, a court must take into account the financial circumstances of the person, in addition to any other matters that the court is required or permitted to take into account.

(2) Nothing in subsection (1) prevents a court from imposing a fine on a person because the financial circumstances of the offender cannot be ascertained by the court."

33 Owen J identified the true question in the case as being (ibid [48]) whether, having arrived at the level of fine appropriate to the gravity of the offending conduct, the sentencing Judge should have reduced it because of the applicant's limited means. Of course, that question was posed in the context in which the owner had given a substantial cash security. In the circumstances of that case that factor was held not to derogate from the general principle that before imposing a fine on an offender a court must take into account the offender's financial circumstances and the fine imposed should not exceed the offender's capacity to pay (ibid, [57]).

"I am prepared to accept that fines totalling $100,000 were appropriate to reflect the gravity and criminality of the applicant's conduct. What seems to have happened is that there was a recognition that the applicant could not pay, but that it did not matter because the owner could, and had provided means to ensure that it would do so. In my opinion, there was no proper or sufficiently comprehensive investigation as to the applicant's means or his ability to pay so as to ascertain whether a fine of some lesser amount would better accord with justice. That is an investigation which is required by the terms of s 16C to be carried out. There is a danger that this approach might be regarded as assessing the amount of the fine in accordance with the ability of the owner to pay, rather than the means of applicant to do so."

and held the court sentencing exercise proceeded on a wrong principle and the sentencing discretion miscarried.

35 The decision in Perez was handed down on 22 November 1999. That in Aruli was delivered on 31 March 1999, but Aruli was not referred to in the judgments in Perez and was apparently not cited to the court - although Arifin v Ostle was.

36 Arifin was relied upon by Kennedy J in Aruli (in the passage from his Honour's judgment I have set out above) as holding that a fine must reflect the gravity of the offence and must be imposed even though it is known that the offender will inevitably serve a default term of imprisonment. Murray J appears to have applied what was said in Arifin in the same way (at 9 and 11).

37 Murray J did set out in full the relevant passage from 25 of the judgment of Pidgeon J (with whom Franklyn and Walsh JJ agreed):

"... that 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." (My emphasis).

38 The qualification in the last sentence is important.

39 Pidgeon J had earlier acknowledged the general principle. At 22-23 he said:

"... in the present case there was an approach to sentencing suggested to his Worship by Counsel for the complainant and adopted by his Worship, which was quite wrong and which should not have been followed. The Quarantine Act and the Continental Shelf Act did not provide for terms of imprisonment in respect of members of the crew as distinct from masters. The Fisheries Act provided for a fine or, by virtue of s 54 in lieu thereof, for a term of imprisonment which in the present cases would not exceed 100 days. It was suggested by Counsel for the complainant that the offences merited imprisonment and that this could be achieved in all cases by imposing a fine despite it being known that the defendant could not pay, and making a provision that there be no time to pay. This is contrary to proper sentencing principle. A fine imposed in any case must be one appropriate to the offence and all of its circumstances and on no account must it be imposed or increased beyond what is appropriate to achieve what might have been seen as the appropriate sentence of imprisonment when that is not provided for in the statute. Whilst there may be circumstances where time to pay might be justly refused, such time should not be withheld to compel a prison sentence for the offence when none is provided by the law. That however is what his Worship did." (My emphasis).

40 Having in that way stated and reaffirmed the general principle, Pidgeon J adverted to the particular sentencing problem presented to the court in that case. That was a circumstance in which the offender had illegally entered Australia, without means, and who would return to his country of origin as soon as he was free to do so. As his Honour observed (at 24), normally it would be difficult, if not impossible, to make any proper inquiries in respect of such persons. His Honour then set out the following passage from the judgment of Wells J in Flego v Lanham (1983) 32 SASR 361:

"If, however, a fine is fixed that is manifestly beyond the power of the offender to pay, there may, unless circumstances otherwise warrant such an imposition, be room for the argument that the fine served but as the means for forcing the offender into custody. That, of course, is not the function of the fine; if it was proper that the offender should be gaoled ab initio, then he should be gaoled by the court's duly exercising a power to order imprisonment.

Of course, a fine may be unavoidable - perhaps it is a minimum fine anyway - and any fine may be too much for the offender to meet. But the offender's capacity to pay should always be kept in mind as a factor worthy of consideration; it cannot be decisive (see generally Reid v Liersch), but it is likely to be of some moment."

41 It was immediately thereafter that Pidgeon J expressed the conclusion set out in the passage referred to by Kennedy J and quoted by Murray J in Aruli.

42 There Kennedy J observed (at 9) that although s 16C Crimes Act 1914 (Cth) requires a court to take the offender's financial circumstances into account, nothing in that section prevents the imposition of a fine on a person because their financial circumstances cannot be ascertained by the court. His Honour noted that a similar provision is to be found in s 53 of the Sentencing Act 1955 (WA).

43 Even so, Kennedy J pointed out (ibid), it was quite clear in that case that the offending fishermen had no means of paying fines of any significant amount, and certainly no means of paying fines of the amounts in fact imposed. Nonetheless, his Honour considered that the circumstances fell within the proposition articulated by Pidgeon J in Arifin and the amounts of the fines were not outside the range of a fair discretionary judgment.

44 Murray J remarked (at 9) that it was apparent that in imposing fines and ordering that the appellants be imprisoned until the fines were paid, but not for longer than the number of days respectively specified, his Worship had relied upon s 58 of the Sentencing Act 1955 (WA).

45 In relation to that case, s 58(1)(b) provided that where a fine is imposed and the court is satisfied the offender is about to leave the State and that his absence would defeat or materially prejudice the operation of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) ("the Fines Etc Enforcement Act"), the court is empowered to order the offender be imprisoned until the fine is paid, for a period not longer than that specified by the court, to a maximum of 2 years.

46 This was the same point made in the qualifying last sentence in the above-quoted passage from the judgment of Pidgeon J in Arifin, namely:

"... by reason of his not being permitted to be in the jurisdiction in order to pay the fine by other means" (My emphasis).

47 The "other means" by which a fine may be paid under the Fines Etc Enforcement Act include the sale of the offender's land or personal property under a warrant of execution (s 45), performance of community service under a work and development order (s 47 - s 51) or under a warrant of commitment (s 53).

48 It seems to me Arifin, Aruli and Perez establish the following propositions:

(1) A fine is not to be imposed without an assessment of the offender's means to pay it;

(2) A fine must be within the capacity of the offender to pay;

(3) A fine should not be imposed where the offender has no capacity to pay;

(4) A court is not precluded from imposing a fine because the offender's financial circumstances cannot be ascertained by the court;

(5) In a case falling within (4), the fine must reflect the gravity of the offence;

(6) Where imprisonment is not an available sentencing option, a fine and an immediate default period of imprisonment is not to be imposed on the basis that the offence merits imprisonment and the default period represents what would be an appropriate term of imprisonment for the offence;

(7) But where a fine is otherwise properly imposed, immediate imprisonment in default of payment may be ordered even though it is known that the offender 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.

49 It was submitted on behalf of the respondent that in prosecutions under the quarantine and fisheries legislation, many offenders, particularly those who are only crew members, will be foreign subsistence fishermen or villagers with no capacity to pay a fine of any significance in Australian dollars. If they then commit offences for which a bond is inappropriate, and imprisonment is not an available sentencing option, application of the ordinary principles of sentencing in respect of the imposition of fines would effectively mean no punishment could be imposed.

50 The answer to that submission must be that the imposition of a fine commensurate with their means (where their financial circumstances can be established) will be a punishment as appropriate to offenders in that category as to any other offender upon whom the fine is imposed according to the same principle. The period of imprisonment stipulated to be served in default must then necessarily relate to the amount of the fine. As Pidgeon J pointed out in Arifin, it would be contrary to fundamental principle to increase the default period beyond that, to accord with what might be thought to be a term of imprisonment appropriate to the offence, were it open to the court to award imprisonment.

51 Parliament has quite deliberately chosen not to include imprisonment as a sentencing option under this legislation. If this be thought to be a lacuna in the sentencing law, the remedy is not for the courts to create an inventive exception to fundamental sentencing principle, but rather for Parliament to specifically legislate to fill it.

52 In sentencing the appellant, the learned Magistrate had only this to say (AB 31):

"Abdull Rajab Djou, please stand up. I have convicted you of both charges, as I'm satisfied beyond reasonable doubt that the prosecution has proven (sic) their case. I do not accept in any way that you lost a rudder unintentionally, or that you hide (sic) the fin because other fins were taken away from you prior. In relation to both charges, I fine you $14,000, and a 10 month imprisonment term concurrent. I've also taken into consideration that you have been in custody since the 21st of November. Thank you."

53 It is submitted by counsel for the appellant that the learned Magistrate moved directly from a finding of guilt to the imposition of a penalty without making any comment as to why he imposed fines and not good behaviour bonds and that in failing to seek information about the matters to which he was required to have regard, he failed to properly exercise his sentencing discretion. Furthermore, it is submitted that the lack of explanation for the imposition of a fine gives rise to a suspicion that the learned Magistrate executed the sentencing process in reverse - ie knowing that imprisonment ab initio was not a sentencing option, nonetheless effectively achieving what he considered an appropriate term of imprisonment, namely 12 months, by imposing a substantial fine with a 10 month default period of imprisonment (the appellant already having been in custody for 2 months).

54 On that point, if it were shown that that was the path of reasoning that the learned Magistrate had indeed followed, then it would clearly be contrary to law:

"A fine imposed in any case must be one appropriate to the offence and all of its circumstances and on no account must it be imposed or increased beyond what is appropriate to achieve what might have been seen as the appropriate sentence of imprisonment when that is not provided for in statute."

55 However, there is a strong presumption in favour of the correctness of the decision being appealed (R v Wilson, unreported; FCt SCt of WA; No 120/88; 20 October 1988) and that extends to presuming the sentencing court has not taken an impermissible approach, in the absence of any indication otherwise.

56 But that does bring me to the issue of the orders actually made by the learned Magistrate. Notwithstanding the brevity of his sentencing remarks, there can be no doubt his Worship imposed a fine of $14,000 in respect of each of the two offences - that is, a total fine of $28,000. That must be so, because each complaint is indorsed "$14,000 fine or 10 months imprisonment", and because otherwise there would have been no reason for his Worship to order the 10 month (default) imprisonment period to be concurrent. Furthermore, while s 4K of the Crimes Act allows for one penalty to be imposed in respect of multiple offences, that only applies to multiple offences charged under the same provision, which does not apply in this case.

57 Counsel for the appellant submitted the amount of each fine was excessive, as was the default period of imprisonment set by the learned Magistrate.

58 Virtually the only information about the appellant before the court was that he was the master of the vessel, a foreign national and a first offender. He was not entitled to any sentencing discount for a plea of guilty.

59 Although a comparison of sentences in different cases is often not useful because circumstances are invariably different, that exercise may be at least generally indicative.

60 In Perez, the aggregate fine imposed on appeal was $24,000. That was appreciably less than the aggregate fine here, although in Perez the appellant was convicted of six offences, he was master of a much more sophisticated vessel than that involved here, was known to have an annual income of approximately A$57,000 and had pleaded guilty. The global fine was apportioned as to $4,000 to each of the six counts.

61 In Samide v Munn [2004] NTSC 4; (2004) 142 A Crim R 434, Riley J noted (at [15]) there is a "marked difference" between sentences imposed in the Northern Territory, Western Australia and Queensland under this legislation. In the Queensland cases to which his Honour was referred, (dealt with in the Cairns Magistrates' Court) the court imposed fines ranging from $3,000 to $6,800, with varying default periods from 68 days to 4 months imprisonment (for a repeat offender) being set. Significantly, the court allowed no time to pay, with the result that the offender served the default period before being returned to Indonesia.

62 In the Northern Territory, the usual disposition was a bond for a first offence and a fine with a default period of imprisonment for a second or subsequent offence. The default period of imprisonment would not have to be served until the time allowed to pay the fine had elapsed, it being understood the offender would return to Indonesia before then and so would only have to serve the imprisonment if he or she returned to Australia.

63 The Western Australian cases to which his Honour was referred were dealt with in the Broome Court of Petty Sessions. Most of the offences had attracted conditional release orders. Where fines were imposed, they ranged from $5,000 to $25,000 (for a repeat offender). The default periods of imprisonment ranged upwards from 45 days. Most were in the range of 2 months to 6 months. Offenders were required to serve the default period in lieu of payment of the fine before being released to return to Indonesia.

64 From this comparison, Riley J concluded ([19] - [23]):

"[19] It seems that an impoverished Indonesian fisherman who boards a fishing vessel in an Indonesian port, travels to the AFZ and engages in conduct contrary to s 100 or s 102 of the Fisheries Management Act, is likely to incur different penalties depending upon whether the arresting officers take him to Queensland, Western Australia or the Northern Territory of Australia.

[20] It is clearly desirable that, wherever possible, like offenders should be punished alike. Mason J said in Lowe v R [1984] HCA 46; (1984) 154 CLR 606 at 611:

'Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.'

[21] Sentencing practises will differ from jurisdiction to jurisdiction depending upon the differing conditions that may apply in different parts of Australia. This was acknowledged in Leeth v The Commonwealth [1992] HCA 29; (1991-1992) 174 CLR 455 where Mason CJ and Dawson and McHugh JJ said (470):

'It is obviously desirable that, in the sentencing of offenders, like offenders should be treated in a like manner. But such a principle cannot be expressed in absolute terms. Its application requires the determination of the categories within which equal treatment is to be measured. Its application in Australia is necessarily upon a State by State basis, for it has long been recognized that sentencing practices may not be uniform from State to State but may be affected by local circumstances. Of course, with many offences, particularly federal offences, local circumstances may, under State sentencing practises, have no bearing upon the appropriate sentence and it may be proper to have regard to sentences imposed elsewhere in Australia.'

'There is no requirement that the actual sentence of a federal offender be fixed having regard to local circumstances. The sentencing Judge may, as in this case, have regard to the sentences imposed in other States in order to achieve as far as possible a measure of consistency.'

[23] Courts in one jurisdiction should accord weight to the decisions of courts in other jurisdictions when dealing with similar offending against the same Federal statutory provision. In my view it is appropriate for those responsible for sentencing in matters such as are now before this Court to have regard to sentences imposed in other jurisdictions in order to achieve a measure of consistency Australia-wide. It is also appropriate and desirable that, where prosecuting authorities inform the court of the range of sentences available, they refer to sentences imposed in relation to offences under the same legislative provision dealt with in other jurisdictions."

65 They are apposite not only to the amount of fines imposed, but also to the default periods set. As to that, Riley J adverted to the following passage from the judgment of Bailey J in Bahloni & Kalungan v Munn [2001] NTSC 101; (2001) 125 A Crim R 144 at 150:

"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."

66 Again, I would, with respect, agree with that proposition. But there is an obvious unfairness and inconsistency involved where either the range of fines ordinarily imposed or the period of default imprisonment (for similar monetary amounts) vary significantly from one Australian jurisdiction to another.

67 Be that as it may, in the absence of some definitive statutory prescription, s 15A Crimes Act affords a principled basis for the application of the default period applicable under the law of the State or Territory in which the offender is convicted. Section 15A provides that a law of a State or Territory relating to the enforcement or recovery of a fine imposed on an offender applies to a person convicted in the State or Territory of an offence against a law of the Commonwealth.

68 On that basis, the default period of imprisonment which ought to be applied in this State should be calculated using the divisor of $150 per day specified in s 53(3)(a) of the Fines Etc Enforcement Act. In the instant case, the 10-month default period is substantially greater than that which would be so derived from a fine of $14,000 (just over 3 months) or of $28,000 (just over 6 months).

69 In Fakie & Ishak v Shelverton (supra), Heenan J imposed on a first offender a global fine of $10,000 for two offences under s 100 plus a fine of $5,000 for one offence under s 101 FMA. On the second offender he imposed a global fine of $15,000 for two offences under s 101 FMA. In respect of each offender his Honour ordered they serve a term of not more than 100 days imprisonment in default of payment, backdated to the date upon which they were taken into custody.

70 In arriving at that disposition, Heenan J had to grapple with the problem of setting both an appropriate fine and an appropriate period of imprisonment in default of payment. His Honour said (at [11] - [12]):

"11 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.

12 Pursuant to s 15A of the Crimes Act the laws of the State concerning enforcement or recovery of fines apply to a person convicted in this State of an offence against a law of the Commonwealth until such time as the Commonwealth enacts an alternative enforcement (Aruli & Ors v Mitchell (supra)). Until January 1995 in this State, by reason of the provisions of s 155 and s 167 of the Justices Act 1902 (WA), the period of imprisonment served by an offender who had not paid his fine was determined by dividing the amount owed by $25 and rounding up the result to the nearest whole number of days. Thus, in October 1994, when imposing fines of $10,000 upon Indonesian fishermen of similar antecedents for offences similar to those in the present case, another Magistrate ordered that the offenders be imprisoned for a period not longer than 400 days until the fines were paid (see Akimin & Ors v Cooper, unreported; SCt of WA; Library No 950071; 24 February 1995). When the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) came into operation in January 1995 the amount of the divisor specified in s 53(3) of that Act was $50. That amount applied in May 1998 when in similar circumstances another Magistrate imposed a fine of $12,500 with 250 days in default, a fine of $15,000 with 300 days in default and a fine of $20,000 with 400 days in default - sentences which were upheld by the Full Court in Aruli & Ors v Mitchell (supra). On 12 March 1999 the amount of the divisor was increased by regulation to the present figure of $150.

13 Section 58(1)(b) of the Sentencing Act 1995 (WA), which came into operation on 4 November 1996, provides that when a Magistrate imposes a fine and is satisfied that the offender is about to leave the State and that his absence would defeat or materially prejudice the operation of the Fines, Penalties and Infringement Notices Enforcement Act then, pursuant to s 58(2), the Magistrate is empowered to make an order that the offender be imprisoned until the fine is paid for a period not longer than that set by the Magistrate. Service of that period discharges the offender from the obligation to pay the fine. In this case, it was appropriate for the learned Magistrate to use the provisions of s 58, because, under the provisions of the Migration Act 1958 (Cth) s 198(5), the appellants were to be returned to Indonesia 'as soon as reasonably practicable'. On the hearing of this appeal counsel for the respondent conceded that, although no particular default period is prescribed in s 58 of the Sentencing Act, the appropriate amount of the divisor in this case is $150. Thus for the maximum fine of $27,500 the appropriate default period now would be 180 days and for fines of $25,000, which were imposed by the learned Magistrate in this case, the default period would be 167 days."

71 His Honour concluded the global fines of $25,000 with a default period of 18 months imprisonment in respect of each appellant were "inappropriate and manifestly excessive" and so set them aside and imposed the fines and default periods of imprisonment referred to above.

72 In this case, both the fine of $14,000 in respect of each (separate) offence and the default period of 10 months imprisonment are manifestly excessive. Furthermore, the default period is grossly excessive by reference to the monetary amount(s) of the fines and must be set aside.

73 Having regard to the need for both specific and general deterrence, the fact that the appellant was the master of the vessel but also was a first offender and that there is little information beyond the general, about his personal and financial circumstances, I would impose a fine of $3,000 in respect of each offence and order a default period of not more than 20 days imprisonment on each to be served cumulatively. The aggregate default period of not more than 40 days will run from the date of conviction, namely 21 January 2004.

Penalties and Infringement Notices Enforcement Act 1994

Djou v Commonwealth Department of Fisheries [2004] WASCA 282

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Judgment (132 paragraphs)

Djou v Commonwealth Department of Fisheries [2004] WASCA 282 (26 November 2004)

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Legislation Cited (3)

Cases Cited (6)