AJ v The Queen - [2011] WASCA 166

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: AJ -v- THE QUEEN [2011] WASCA 166

CORAM: McLURE P
BUSS JA
MAZZA J

HEARD: 17 JUNE 2011

DELIVERED : 29 JULY 2011

FILE NO/S: CACR 22 of 2011

BETWEEN: AJ
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :KEEN DCJ
File No  :IND 1039 of 2010

Catchwords:

Criminal law - Appeal against sentence - Construction of s 233C of the Migration Act 1958 (Cth) - Standard and burden of proof under that section - Whether trial judge applied correct test - Turns on own facts

Legislation:

Children's Court of Western Australia Act 1988 (WA), s 3, s 19(1)
Criminal Procedure Act 2004 (WA), s 126(1)(a), s 127
Migration Act 1958 (Cth), s 232A, s 233C

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: No appearance

Solicitors:

Appellant: David McKenzie Legal
Respondent: Director of Public Prosecutions (Cth)

Case(s) referred to in judgment(s):

Law v The State of Western Australia [2009] WASCA 193

McLURE P: This is an application for leave to appeal against sentence. It raises for consideration the proper construction of s 233C of the Migration Act 1958 (Cth) (the Act) as it was in December 2009.
On 22 December 2010, the appellant was convicted on his own plea of guilty on one count of facilitating the bringing or coming to Australia of a group of non‑citizens contrary to s 232A of the Migration Act. Keen DCJ, applying s 233C of the Act as it was in December 2009, imposed a mandatory minimum sentence of 5 years' imprisonment with a non‑parole period of 3 years.
Section 233C of the Act relevantly provided:
(1)This section applies if a person is convicted of an offence under section 232A … , unless it is established on the balance of probabilities that the person was aged under 18 years when the offence was committed.
Under subs 233C(2) and (3), the mandatory minimum sentence for a first offence is 5 years' imprisonment with a non‑parole period of 3 years.
On 1 October 2010, the appellant pleaded under s 126(1)(a) of the Criminal Procedure Act 2004 (WA) that the District Court did not have jurisdiction because he was under the age of 18 years. By s 19(1) of the Children's Court of Western Australia Act 1988 (WA), the Children's Court has exclusive jurisdiction, subject to s 19(1a), to hear and determine a charge of an offence alleged to have been committed by a child. A child is defined in s 3 of that Act to mean, inter alia, any boy or girl under the age of 18 years.
Under s 127 of the Criminal Procedure Act, if an accused enters a plea under s 126(1)(a) to a charge, the court must try any issue raised by the plea. A trial of the issue of whether the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AJ v The Queen

Details

AGLC: AJ v The Queen [2011] WASCA 166
Case: [2011] WASCA 166
Decision Date: 29 JULY 2011

CaseChat Overview and Summary

The case of AJ v The Queen involved the appellant, AJ, who was convicted of several criminal offences and subsequently sentenced by the trial judge. The appeal to the court was against the sentence imposed on AJ, with a particular focus on the interpretation and application of section 233C of the Migration Act 1958 (Cth). The central issue before the court was whether the trial judge had correctly applied the relevant legal tests in sentencing, particularly concerning the standard and burden of proof under section 233C. This section of the Act pertains to the criminalisation of assisting non-citizens in relation to migration offences, and the court had to determine if the trial judge had properly interpreted the legal requirements of this provision.

The court examined the legal principles surrounding the application of section 233C, emphasising the need for a clear understanding of the standard and burden of proof. The appellant argued that the trial judge had not applied the correct test, leading to an unjust sentence. The court assessed whether the trial judge had correctly balanced the elements of the offence and the principles of justice in sentencing. The decision turned on the proper construction of section 233C and whether it required the prosecution to prove certain facts beyond a reasonable doubt or on a balance of probabilities.

After a thorough examination of the legal issues and the relevant statutory provisions, the court concluded that the trial judge had indeed applied the correct legal test in sentencing AJ. The court found that the trial judge had appropriately considered the statutory requirements and the principles of justice in arriving at the sentence. Consequently, the appeal against the sentence was dismissed, and the original sentence imposed by the trial judge was upheld.

Orders