Bahar v The Queen - [2011] WASCA 249

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BAHAR -v- THE QUEEN [2011] WASCA 249

CORAM: MARTIN CJ
McLURE P
MAZZA J

HEARD: 16 SEPTEMBER 2011

DELIVERED : 15 NOVEMBER 2011

FILE NO/S: CACR 182 of 2010

BETWEEN: SAMSUL BAHAR
Appellant
AND
THE QUEEN
Respondent

FILE NO/S :CACR 202 of 2010

BETWEEN :ANWAR ABDULLAH
Appellant
AND
THE QUEEN
Respondent

FILE NO/S :CACR 222 of 2010

BETWEEN :ANTO
Appellant
AND
THE QUEEN
Respondent

FILE NO/S :CACR 190 of 2010

BETWEEN :THE QUEEN
Appellant
AND
ANWAR ABDULLAH
First Respondent
ANTO
Second Respondent
SAMSUL BAHAR
Third Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :WISBEY DCJ
File No  :IND 329 of 2010

Catchwords:

Criminal law - Appeal against conviction - People smuggling - Physical and fault elements of the offence under s 232A of the Migration Act 1958 (Cth) - Whether trial judge required to direct jury on defence of mistake under s 9.1 of the Criminal Code Act 1995 (Cth) - Whether proof of fault elements negatived any possibility of the defence

Criminal law - Appeal against sentence - Correct approach to sentencing of an offender for a federal offence for which a statutory minimum term of imprisonment is prescribed

Legislation:

Crimes Act 1914 (Cth), s 16A(1), s 16A(2), s 16A(2)(a), s 17A, s 19B, s 20, s 20AB
Criminal Code (WA), s 24
Criminal Code Act 1995 (Cth), s 4.1, s 5.1, s 9.1, s 9.1(1)
Migration Act 1958 (Cth), s 42(1), s 228A, s 232A, s 232A(1), s 232A(1)(b), s 233C

Result:

Appeals dismissed

Category: A

Representation:

CACR 182 of 2010

Counsel:

Appellant: Mr S Watters
Respondent: Ms W Abraham QC & Mr A Troy

Solicitors:

Appellant: Marc G Saupin Pty Ltd
Respondent: Director of Public Prosecutions (Cth)

CACR 202 of 2010

Counsel:

Appellant: Mr S Watters
Respondent: Ms W Abraham QC & Mr A Troy

Solicitors:

Appellant: Thames Legal
Respondent: Director of Public Prosecutions (Cth)

CACR 222 of 2010

Counsel:

Appellant: Mr S Watters
Respondent: Ms W Abraham QC & Mr A Troy

Solicitors:

Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (Cth)

CACR 190 of 2010

Counsel:

Appellant:     Ms W Abraham QC & Mr A Troy
First Respondent           :     Mr S Watters
Second Respondent       :     Ms K Farley
Third Respondent         :     Mr S Watters

Solicitors:

Appellant:     Director of Public Prosecutions (Cth)
First Respondent           :     Thames Legal
Second Respondent       :     Legal Aid (WA)
Third Respondent         :     Marc G Saupin Pty Ltd

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

Atherden v The State of Western Australia [2010] WASCA 33
Braysich v The Queen [2011] HCA 14
Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309
Fraser v The State of Western Australia [2009] WASCA 23
Hili v The Queen [2010] HCA 45; (2010) 272 ALR 465
Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348
Keating v The State of Western Australia [2007] WASCA 98
Malika Holdings Pty Ltd v Stretton [2001] HCA 14; (2001) 204 CLR 290
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Miles v The State of Western Australia [2010] WASCA 93
Moody v French [2008] WASCA 67
Muldrock v The Queen [2011] HCA 39
Palling v Corfield [1970] HCA 53; (1970) 123 CLR 52
R v Ironside (2009) 104 SASR 54
Stasinowsky v The State of Western Australia [2009] WASCA 20
Teakle v The State of Western Australia (2007) 33 WAR 188
The Queen v Pot, Wetangky and Lande (Unreported, NTSC, 18 January 2011)
Trenerry v Bradley (1997) 6 NTLR 175
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

MARTIN CJ: The appeals against conviction, and the Crown's appeal against sentence should each be dismissed for the reasons given by McLure P, with which I agree.
McLURE P: Samsul Bahar, Anwar Abdullah and Anto (referred to in the conviction and sentence appeals as 'the appellants') appeal against their conviction on one count of facilitating the bringing or coming to Australia of a group of five or more people to whom s 42(1) of the Migration Act 1958 (Cth) (the Act) applied, namely a group of 50 Afghani and Iranian people, and did so reckless as to whether the people had a lawful right to come to Australia, contrary to s 232A of the Act.
The sole ground of appeal is that the trial judge 'failed to adequately or at all' direct the jury with regard to the defence of mistake under s 9.1 of the Criminal Code Act 1995 (Cth) (the Code).
The appellants were each sentenced by Wisbey DCJ to a term of imprisonment of 5 years with a non‑parole period of 3 years. The Crown appeals against the sentence imposed on the appellants. It contends the sentencing judge:
1.erred in his application of the mandatory penalty provision in s 233C of the Act;
2.imposed a sentence that is manifestly inadequate.

The factual background

The appellants and another person, Lorens Lapikana, were jointly charged and stood trial together for the offence. Mr Lapikana, who testified in his defence at trial, was acquitted.
The four men were the crew of a vessel intercepted by the Australian Navy near Ashmore Reef on 23 June 2009. Forty‑three Afghanis and seven Iranians were also on the vessel.
The Crown case at trial was that Mr Bahar and Mr Anto were on the vessel for the whole of the voyage from Indonesia to Ashmore Reef and that Mr Abdullah and Mr Lapikana joined the vessel at sea off Rote Island, part way through the voyage. The boarding of the vessel by the passengers and the appellants took place at night and at obscure locations. The passengers and at least two of the appellants were ferried out to the vessel on small boats.

Messrs Abdullah, Bahar and Anto, who did not give evidence at trial, relied upon the records of their interviews with Commonwealth authorities as providing the evidentiary foundation for the defence of mistake.
The transcripts of the interviews of Mr Anto and Mr Bahar were tendered in evidence and it was accepted that they accurately reflected the detail of the interviews. A transcript of the interview with Mr Abdullah was not tendered in evidence but provided to the jury as an aid to the audio recording (ts 636).

The conviction appeals

In his summing up, the trial judge summarised the evidence of each of the appellants (ts 648 ‑ 654), including the evidence relied on as providing the foundation for the defence of mistake. No issue was taken with the accuracy or completeness of the summary. For convenience, I propose to refer to the judge's summary of the evidence and the defence cases.
Mr Bahar claimed to have been duped, stating that he was engaged to carry cargo not passengers. He was approached and offered 3.5 million rupiah by an Indonesian man of approximately 30 years of age. He said he was taken to an unfamiliar place at night where he got on a boat and they sailed at 4.00 am. He thought the destination was his home island. He did not know how long the job would last and did not ask any questions concerning the job. When he arrived at the vessel, the passengers were not on board but they arrived the next day by boat. At that stage, he was not able to leave because the vessel was some distance from shore. He was not told that the vessel was taking passengers to Australia and never contemplated that to be the position. He just followed instructions and did not ask any questions. Mr Bahar agreed that he cooked, looked at the engine on at least one occasion and did some steering. He stated that he did not get off at Rote Island because he was asleep when the vessel stopped and when the crew change took place. He stated that towards the end of the voyage they were lost. It was said on behalf of Mr Bahar that the jury should accept his account that he had no intention of taking the passengers to Australia and was not aware that that was where the vessel was headed. It was further said on his behalf that the jury could not draw the inference that that was his purpose and should bear in mind that he was an unsophisticated young man with a very rudimentary education, that there were cultural issues and that he was the type of individual who could easily be misled by more sophisticated people smugglers. It was also pointed out that the vessel was an Indonesian coastal cargo vessel and that the navigation charts were essentially for Indonesian domestic waters (ts 648 ‑ 649).
Mr Anto said he knew Mr Bahar as they were from the same village, that they were approached by a stranger and that he was offered 1 million rupiah to assist in transporting general cargo. He was not told how long the job would take. He said they set sail from his home village of Buton to pick up cargo in Makassar, but instead went straight to Ashmore Reef. He boarded the vessel the night the offer was made and stated that passengers were already on board. His account of events later changed to say that he got on the vessel in Gresik, where he had gone with his father, and the passengers were picked up at sea off Surabaya. He indicated that when the passengers arrived on the vessel he had no practical alternative but to stay with the vessel as it was well out to sea. He agreed that two crew boarded the vessel near Rote Island and that he helped with the steering and cooking. When other crew disembarked near Rote Island, he was told to head in a particular direction and that after a full day they would reach Ashmore Reef. He said he did not know that Ashmore Reef was part of Australia. It was submitted on behalf of Mr Anto that even if the jury were satisfied he had physically facilitated the outcome, there was no evidence from which the jury could conclude he did so knowing that he was assisting non‑citizens to enter Australia. If Mr Anto was unaware that the intention was to go to Australia or that they were heading to Australia, he could not have appreciated that there was a risk of the passengers entering Australia unlawfully. Again the point was made that the vessel was a coastal cargo vessel, which was consistent with Mr Anto's understanding of the purpose of the voyage (ts 649 ‑ 650).
Mr Abdullah said he was approached by a man from Jakarta who offered him 3 million rupiah to work for him. That man apparently returned to Jakarta and about a week later Mr Abdullah was approached by another man who accompanied him to Rote Island where he was taken out to a vessel which was at sea. He stated that he had been told he was going to assist in transporting sugar syrup from Rote Island to Alor and that the voyage would take approximately six days. He was accompanied by Mr Lapikana and they boarded the vessel at night. On boarding the vessel he observed the Afghan passengers and knew that there was something wrong, although he was not aware of the practice of people smuggling. He stated that if he had known about the Afghanis, he would not have gone on the vessel and that he at no stage knew or contemplated where the passengers were being taken. He understood that his job on the vessel would be dealing with cargo. It was accepted by him that he did perform tasks on the vessel which probably assisted the voyage, such as some steering and checking the engine. However, it was submitted that Mr Abdullah did not know and never understood or contemplated that he was helping to sail a vessel towards Australia or to take the passengers towards Australia.
In their written submissions in the appeals, the appellants identified what is described as the facts relied on as grounding the defence of mistake. In relation to Mr Bahar it is said the facts he 'honestly and reasonably but mistakenly believed existed' were:
(a)he was asked to help on a ship and believed he was required to help with cargo, not people;
(b)the cargo was to be crockery and the destination was to be his home town of Buton; and
(c)he believed the voyage would not involve the transportation of people.
In relation to Mr Abdullah, it is said the facts he 'honestly and reasonably but mistakenly believed existed' were:
(a)the voyage involved transporting sugar syrup;
(b)the syrup was to be transported from Rote Island to Alor;
(c)he was required to work on the boat transporting the sugar cargo and that task would involve him lifting the syrup.
In relation to Mr Anto, it is said the facts he 'honestly and reasonably but mistakenly believed existed' were:
(a)the job he was offered concerned a voyage that involved transporting general cargo;
(b)the purpose of the voyage was to go to Makassar and pick up the general cargo.
The mistakes advanced on behalf of the appellants combine the source and content of their belief. They were obviously formulated by reference to the mistake defence in s 24 of the Criminal Code (WA) rather than the Commonwealth defence. Section 9.1 of the Code provides:
(1)A person is not criminally responsible for an offence that has a physical element for which there is a fault element other than negligence if:
(a)at the time of the conduct constituting the physical element, the person is under a mistaken belief about, or is ignorant of, facts; and
(b)the existence of that mistaken belief or ignorance negates any fault element applying to that physical element.
(2)In determining whether a person was under a mistaken belief about, or was ignorant of, facts, the tribunal of fact may consider whether the mistaken belief or ignorance was reasonable in the circumstances.
It is apparent from the formulation of the relevant mistakes and was confirmed by the appellants' counsel in oral submissions that the mistaken belief on which they rely in the appeal existed up to the time the appellants got onto the vessel, it being obvious thereafter that the vessel was transporting people not goods. The submission reflects a lack of understanding of the elements of the defence of mistake in s 9.1(1) of the Code. The mistaken belief must exist at the time of the conduct constituting the physical element and the existence of the mistaken belief must negate any fault element applying to that physical element.
However, notwithstanding the limited way in which the appellants presented their case in the appeal, it was accepted that there was evidence satisfying the evidentiary burden of raising the defence of mistake under s 9.1 of the Code. That burden is satisfied when there is evidence which, taken at its highest in favour of the appellants, could as a matter of law lead a reasonable trier of fact to have a reasonable doubt that the appellants were under a mistaken belief about, or ignorant of, a fact, the existence of which mistaken belief or ignorance negated any fault element applying to the relevant physical element of the offence. See Braysich v The Queen [2011] HCA 14 [17], [36].
It is the case that the trial judge did not expressly address or refer to the defence of mistake in his summing up. The question is whether he had to. The starting point is to identify the physical and fault elements of s 232A of the Act. The expression 'physical elements' is defined in s 4.1 of the Code to mean, relevantly, conduct, which in turn is defined to mean, relevantly, an act. A fault element for a particular physical element may be intention, knowledge, recklessness or negligence (s 5.1).
Section 232A of the Act provided at the relevant time:
(1)A person who:
(a)organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of 5 or more people to whom subsection 42(1) applies; and
(b)does so reckless as to whether the people had, or have, a lawful right to come to Australia;
is guilty of an offence punishable, on conviction, by imprisonment for 20 years or 2,000 penalty units, or both.
Note: Sections 233B and 233C limit conviction and sentencing options for offences under this section.
Section 232A and s 233C are in pt 2 div 12 subdivision A of the Act which applies in and outside Australia (s 228A). It is convenient for analytical purposes to separately identify the elements and components of the offence. Section 232A applies to a person who (1) facilitates (2) the bringing or coming to Australia (3) of a group of five or more people (4) to whom s 42(1) applies. Each of those numbered components must be objectively established. A person to whom s 42(1) applies is a non‑citizen who must not travel to Australia without a visa that is in effect.
The physical elements in this case are the actions of the individual appellants that objectively facilitated the bringing or coming to Australia of the group. In substance, that is the performance by them of their roles as crewmen on the vessel during the course of the voyage to Ashmore Reef.
As to the fault element of the offence, the person must do the relevant physical acts constituting the facilitation with the intention of facilitating the bringing or coming to Australia of a group of five or more people. In order to have such an intention, the person must be aware of the purpose and destination of (in this case) the voyage. My preliminary view is that the fault elements of intention and knowledge do not apply to component (4) of s 232A relating to the status of members of the group as people to whom s 42(1) applies. The fault element in relation to that aspect is governed by s 232A(1)(b) which requires only that the person be reckless as to whether the people had, or have, a lawful right to come to Australia. As the trial judge directed that the fault element applied to all four components of s 232A identified above, it is unnecessary to determine this question.
The trial judge directed the jury as to the physical and fault elements of s 232A. He said:
The second element [of the offence under s 232A] is facilitation, that the accused person facilitated the bringing or coming to Australia. There's no legal nicety in the term 'facilitate' which has its ordinary meaning. To facilitate the bringing or coming to Australia means to consciously or intentionally render, easier, the performance of or the attainment of the object to promote, to help forward, to assist in the bringing or coming to Australia.
The facilitation must of course, amount to a material contribution to the desired objective, namely the entry or bringing into Australia and not merely be incidental to it … Now, leaving aside the mental element of intention about which I will speak further, you might think, and it's a matter entirely for you as the [triers] of the facts, that to participate as a crew member on a vessel, to hold yourself out as available to undertake tasks necessary or that may become necessary for the purpose of enduring the voyage would amount to facilitation …
The third element, what I've described as the subject. The facilitation must be in respect of a group of five or more persons [to] whom section [42(1)] of the Migration Act applies. Section [42(1)] simply refers to a person who is not an Australian citizen and does not have a Visa authorising entry in Australia, that is a lawful non‑citizen. There is no doubt on the evidence placed before you, and indeed it is admitted by the accused persons, that there was a group of five or more non‑citizens as defined in the Migration Act on the vessel at the material time …
The next element is the entry to Australia. The accused must have had the intention of facilitating or the bringing or coming to Australia of the non‑citizens, that is, the Crown must establish not only that the accused physically facilitated the voyage to Australia, but that he did so in the knowledge that what he was doing was bringing non‑citizens to Australia. A person has an intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events …
And the final element that the Crown must establish is that the accused not only facilitated the bringing or coming to Australia of the non‑citizens referred to knowing that is what he was doing, but that he did so reckless as to whether they had a lawful right to come to Australia (ts 637 ‑ 638).

No issue is taken with the accuracy or adequacy of the trial judge's directions relating to s 232A. As noted earlier, it is not an element of the offence under s 232A that the mental elements of knowledge and intention exist prior to the performance of the conduct, or any material part thereof, that constitutes the facilitation. Thus, there is no merit in the appellants' submission that the Crown case must fail unless it negatived the possibility of each appellant having a mistaken belief as to the purpose of the voyage at the time he first boarded the vessel.
Nor did the Crown conduct its case on the basis that the fault elements of the offence under s 232A had to be in existence at the time the appellants first boarded the vessel. The acts of facilitation relied on by the Crown were the performance by the appellants of their roles as members of the crew of the vessel during the voyage to Ashmore Reef.
The fault elements must exist at the time of the performance of the physical elements. The defence of mistake must negate the mental elements (knowledge and intention) that apply to the performance of the appellants' crew duties during the voyage. The only relevant facts about which the appellants could arguably have been mistaken or ignorant were (1) that the vessel was transporting passengers or (2) that the passengers were being taken to Australia. However, positive knowledge of the purpose and destination of the voyage and an intention to facilitate it were elements of the offence of which the jury had to be satisfied beyond reasonable doubt. That is, proof of those fault elements (knowledge and intention as to the bringing or coming to Australia of the passengers on the vessel) itself and without more negatives any possibility of the defence of mistake under the Code: see Miles v The State of Western Australia [2010] WASCA 93. Accordingly, it was unnecessary to direct the jury on the issue of mistake. The conviction appeals should be dismissed.

The sentence appeal

This appeal raises the fundamental question of how to approach the sentencing of an offender for a federal offence for which a statutory minimum term of imprisonment is prescribed.
The penalty provision of the Act applicable at the time the appellants committed the offence is s 233C, which 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.
(2)The court must impose a sentence of imprisonment of at least:
(a)8 years, if the conviction is for a repeat offence; or
(b)5 years, in any other case.
(3)The court must also set a non‑parole period of at least:
(a)5 years, if the conviction is for a repeat offence; or
(b)3 years, in any other case.
The sentencing judge imposed the mandatory minimum term of imprisonment and the mandatory minimum non‑parole period. The maximum penalty is imprisonment for 20 years (s 232A(1)).
The sentencing judge understood the Crown to submit that the appellants' criminality was to be measured on a sentencing scale ranging from 5 years' imprisonment for a low level offence where it is necessary to accommodate all mitigating factors, such as diminished responsibility, significant cooperation, an early plea, youth and other personal factors, to 20 years' imprisonment for the worst type of repeat offence with no mitigation (ts 686 ‑ 687). The sentencing judge said:
The proper approach to sentencing here is to assess the objective criminality having regard to the dictate of the Crimes Act but mindful of the mandate that the applicable disposition for that criminality cannot be less than the prescribed minimum. I do not accept the argument advanced by the Crown, which would require sentencing to take place on the basis, effectively, of a penalty scale, such that the only offenders qualifying for the mandatory minimum penalty would be those whose conduct was at the lowest level of the range of objective seriousness and who are able to establish the mitigatory factors to which I've referred. The fallacy in the Crown's submission can be readily demonstrated. If two persons jointly offended against section 232A in circumstances where there was conduct parity, that conduct [was] at the lowest level of objective seriousness, and one pleaded guilty, only he would be entitled to the minimum disposition. The other would suffer a penalty for the position he had adopted contrary to proper sentencing principles. The submission of the Crown, that to approach sentencing other than on the basis suggested by it would mean that offenders may be denied a benefit for significant mitigatory factors, is understandable, but regrettably is the price paid to give effect to the community's desire for and expectation of the achievement of general deterrence by mandatory minimum sentence legislation … The result may be the removal of any incentive for offenders to offer cooperation or to facilitate the course of justice (ts 689).
The appellants urged this court to adopt the approach taken by Riley CJ in The Queen v Pot, Wetangky and Lande (Unreported, NTSC, 18 January 2011). In summary, that is to first determine the appropriate penalty in accordance with general sentencing principles and if that produces a result below (or, I interpolate, different from) the minimum mandatory penalty, the mandatory minimum must be imposed. Riley CJ explained the nature of and justification for this approach:
It is apparent that a number of judges, including judges in this jurisdiction, have approached the task of sentencing in circumstances where s 233C of the Migration Act has application, by determining whether a sentence less than the mandatory minimum is of a severity appropriate in the circumstances of the case, and then gone to impose the mandatory minimum sentence as required by the section …
There is no suggestion that by creating the mandatory minimum penalty provided for in s 233C … the legislature intended to undermine those general sentencing principles found in Part 1B of the Crimes Act or the relevant common law principles. There is nothing to suggest that it was intended that the requirements of s 16A(1) of the Crimes Act should be read to require a Court to determine the appropriate severity of a sentence by reference to a predetermined base not necessarily reflecting the circumstances of the offending and which may be removed from what the Court would otherwise consider an appropriate sentence in all the circumstances.
The minimum sentence previously applicable was not abrogated by the inclusion of section 233C of the Act. The section simply required a sentence of at least the mandatory minimum to be applied in identified circumstances …
The court continues to be obliged to have regard to the same general sentencing principles as was previously the case, including determining a sentence of a severity appropriate in all the circumstances of the offence.
In my opinion, the section provides the minimum sentence that can be imposed in the identified circumstances but does not go so far as to reserve that mandatory minimum sentence only for cases at the lowest end of seriousness for relevant offending, as submitted by the Crown. A clear expression of such an intention would be expected and is not present …
In my view, the court should apply the sentencing principles set out in the Crimes Act and those applicable at common law and taking into account all the relevant factors, determine an appropriate sentence … Where the appropriate sentence so determined is less than the mandatory minimum, the Court must then impose the mandatory minimum in accordance with the requirements of the Migration Act.
The Crown submits this approach is wrong. It says the statutory minimum penalty performs the same function as a statutory maximum penalty; both provide, taken with all other relevant sentencing factors, a yardstick. That is, they provide a basis for comparison between the case at hand with the worst category of offending (for which the mandatory maximum penalty is the yardstick) and the least serious category of offending (for which the mandatory minimum penalty is the yardstick).
Section 233C of the Act has to be construed together with the relevant provisions of the Crimes Act 1914 (Cth), in particular, the general sentencing principles for federal offenders in pt 1B div 2. Section 16A(1) of the Crimes Act provides:
In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.
Section 16A(2) sets out a list of mandatory, but not exhaustive, sentencing matters the court must take into account. They include:
(a)the nature and circumstances of the offence;
…
(g)if the person has pleaded guilty to the charge in respect of the offence ‑ that fact;
(h)the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences;
…
(k)the need to ensure that the person is adequately punished for the offence;
…
(m)the character, antecedents, age, means and physical or mental condition of the person.
The Crimes Act recognises and provides for a range of sentencing options. The options include imprisonment, fine, discharge of an offender without proceeding to conviction (s 19B) and conditional release after conviction (s 20). The Crimes Act also picks up some of the sentencing alternatives available under State law (s 20AB).
Under s 17A of the Crimes Act, a court must not pass a sentence of imprisonment on any person for a federal offence unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.
The answer to the question before the court is solely a matter of statutory construction. The first task is to identify any inconsistencies between the general sentencing principles in the Crimes Act, as supplemented by the common law, and the statutory minimum penalty in s 233C. It is then necessary to determine how the inconsistencies are to be resolved.
The relationship between the Crimes Act and the common law principles of sentencing was addressed by the High Court in Hili v The Queen (2010) 272 ALR 465. The majority said:
[Section] 16A of the Crimes Act … on its proper construction, accommodates the application of common law principles of sentencing, such as the principle of 'totality' … Section 16A accommodates the application of that and some other judicially developed general sentencing principles because those principles give relevant content to the statutory expression 'of a severity appropriate in all the circumstances of the offence' used in s 16A(1), as well as some of the expressions used in s 16A(2), such as 'the need to ensure that the person is adequately punished for the offence' [25].
Thus, the common law principles relating to, inter alia, general deterrence, totality and parity apply to the sentencing of federal offenders. So too do the principles articulated by the High Court in Cameron v The Queen (2002) 209 CLR 339 concerning the sentencing approach to pleas of guilty and not guilty. The common law requires that an offender must not be penalised for pleading not guilty (Cameron (345)). However, at the same time a plea of guilty is accepted as a mitigating factor. The practical consequence of the fact that a plea of guilty is mitigatory is that, all other sentencing considerations being equal (which they usually never are), an offender who pleads guilty will ordinarily receive a lesser sentence than a co‑offender who pleads not guilty. However, as explained by the High Court in Cameron, it is not the mere plea of guilty that produces that outcome but rather the fact that the plea supports an inference of remorse, acceptance of responsibility and a willingness to facilitate the course of justice.
A similar approach explains why, all other sentencing considerations being equal, a co‑offender with a relevant record of prior offending will ordinarily receive a higher sentence notwithstanding that at common law an offence is not aggravated by the fact that an offender has a prior criminal record. A prior criminal record can manifest a continuing attitude of disobedience of the law which increases the weight to be given to the sentencing objectives of protection of the community and personal deterrence: Veen v The Queen (No 2) (1988) 164 CLR 465.
However, a plea of guilty does not automatically translate to a reduction in sentence in all cases. As this court said in Moody v French [2008] WASCA 67:
It is open to a court to find that, although a particular factor (such as a plea of guilty) decreases the culpability of the offender or the extent to which the offender should be punished, that factor is so outweighed by other factors that it is necessary to impose the maximum sentence because, even allowing for the mitigating effect of that factor, the offence falls within the worst category of offences of its type [33].
See also, Keating v The State of Western Australia [2007] WASCA 98 [39] ‑ [40]. It is also the case that an offender may be in the lowest category of offending notwithstanding a plea of not guilty. This is simply a reflection of the fact that sentencing involves the weighing of all relevant sentencing factors some of which pull in different directions and can result in the same sentence for co‑offenders, notwithstanding that one pleaded guilty and the other went to trial.
I turn now to the principle of proportionality. The common law of Australia prohibits a judicial officer from imposing a sentence that exceeds what is commensurate with the gravity of the crime being punished. As stated by the High Court in Hoare v The Queen (1989) 167 CLR 348:
[A] basic principle of sentencing law is that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances (354). (emphasis in original)
The principle of proportionality is reflected in the requirement in s 16A(1) of the Crimes Act that the sentence be 'of a severity appropriate in all the circumstances of the offence' and the requirement in s 16A(2)(a) that the court take into account the nature and circumstances of the offence. One of the objective circumstances referred to in Hoare is the seriousness of the offence. The seriousness of an offence is to be determined by taking into account both the statutory maximum penalty as well as any statutory minimum penalty.
Taking into account the statutory maximum penalty is well accepted and uncontroversial. The nomination of a statutory maximum penalty for a statutory offence has never to my knowledge been regarded as an inappropriate incursion or limitation on the scope of the judicial sentencing discretion. It is and always has been properly regarded as being within the sole purview and responsibility of the legislative arm of government. Statutory minimum penalties are less common and are often accompanied by critical judicial comment, curial and extra‑curial: see Trenerry v Bradley (1997) 6 NTLR 175, 187. However, a statutory minimum penalty, like a statutory maximum, is a legislative direction as to the seriousness of the offence. No‑one has (yet) suggested that a minimum statutory penalty itself substantially impairs or is incompatible with the institutional integrity of the courts. See Palling v Corfield (1970) 123 CLR 52, 58; R v Ironside (2009) 104 SASR 54.
Statutory minimum penalties are well‑known in this State and attract little controversy when there is general community and judicial agreement with the legislature's assessment of the seriousness of the offence. An example is the sentence for wilful murder which, until the abolition of that offence, attracted a mandatory sentence of either strict security life imprisonment (with a minimum non‑parole period of 20 years) or life imprisonment (with a minimum non‑parole period of 15 years). The practice of imposing the minimum non‑parole period of 20 years for strict security life imprisonment regardless of the level of seriousness of the offending as a whole, together with all other relevant sentencing considerations, was disapproved in Stasinowsky v The State of Western Australia [2009] WASCA 20, [60] ‑ [73] and Fraser v The State of Western Australia [2009] WASCA 23 [21].
The High Court in Markarian v The Queen (2005) 228 CLR 357 referred to the role and relevance of maximum statutory penalties. The majority said:
[C]areful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick [31].
Prima facie, that statement is equally applicable to minimum statutory penalties. See also Muldrock v The Queen [2011] HCA 39 [26] ‑ [31].
Against that background, I turn to the more detailed issues of statutory construction. It is necessary at the outset to acknowledge the role and effect of legal presumptions. One such presumption is that the legislature does not intend to alter common law rights or doctrines/principles. The source of common law rights and principles is the judiciary, not the legislature.
Where legal presumptions apply, they can be rebutted by clear and unambiguous language or a test to like effect. However, the strength of the presumptions can vary according to whether the rights and principles are 'fundamental' or of some lesser status: Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290, 298; Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309, 328 ‑ 329.
A legal presumption provides the prima facie answer to a question of statutory construction before going to the statutory text and context. I omit 'purpose' because legal presumptions are said to be based on an assumption as to the legislative intention. In the absence of a relevant legal presumption, the proper construction of a statute is largely driven by the statutory text, context and purpose. In my view, this is a case where the outcome is the same regardless of the starting point.
The statutory language makes it unequivocally clear that the Commonwealth Parliament intended to deprive a judicial officer sentencing an offender for a breach of s 232A of both the power to impose a non‑custodial sentence and the power to impose a sentence of less than 5 years. Thus, s 233C is positively inconsistent with s 17A of the Crimes Act which requires that consideration be given to different types of sentence. However, the later, specific provision (s 233C) must prevail.
Otherwise, there is no positive inconsistency in terms between s 233C and the general sentencing principles in the Crimes Act as supplemented by common law principles. In particular, the sentencing principles are intentionally framed at a level of generality for application within the boundaries of power established not only by the maximum statutory penalty but also the minimum statutory penalty. The statutory maximum and minimum also dictate the seriousness of the offence for the purpose of s 16A(1). It would be positively inconsistent with the statutory scheme for a sentencing judge to make his or her own assessment as to the 'just and appropriate' sentence ignoring the mandatory minimum or mandatory maximum penalty and then to impose something other than a 'just and appropriate' sentence (whether as to type or length) in order to bring it up to the statutory minimum or down to the statutory maximum, as the case may be. The statutory minimum and statutory maximum penalties are the floor and ceiling respectively within which the sentencing judge has a sentencing discretion to which the general sentencing principles are to be applied.

The suggestion by the Crown to the sentencing judge that the mandatory minimum is for a low level offence in which all mitigating factors are present reflects a lack of understanding of the sentencing process. First, the minimum penalty is for offences within the least serious category of offending and the maximum penalty is for offences within the worst category of offending. I emphasise 'category' of offending. There is no single instance at either extreme. Secondly, whether an offence falls within the least serious category is to be determined by reference to all relevant sentencing considerations, including matters personal to the offender. As I have explained above, a sentencing outcome (the 'bottom line') is not dictated by the presence or absence of one or more mitigating factors.
Thirdly, as this court has previously recognised, a mandatory minimum term of imprisonment can create complications for reductions in sentence for mitigatory factors. For example, on occasions it will not be possible to allow a usual discount for a mitigatory factor, such as a plea of guilty: Teakle v The State of Western Australia (2007) 33 WAR 188 [19]. As Wheeler JA explained in Atherden v The State of Western Australia [2010] WASCA 33:
[I]n relation to at least some offences which fall towards the lower end of the range of culpability, the presence of a minimum term makes it impossible for a sentencing judge to apply the quantum of discount for a plea of guilty which he or she would ordinarily apply, because to do so would mean that the sentence imposed would fall below the statutory minimum. Where an offence is right at the bottom of the range of culpability, it may be that no discount at all can be given, for the same reason.
However, I do not think it follows that the principles governing the awarding of a discount for a plea of guilty cease to apply in cases where there is a statutory minimum term. Rather, the result will be that there is a compression of sentences towards the lower end of the range, with offences at the bottom of the range of culpability treated effectively in the same way as those which are towards the lower end, but not at the extreme lower end, of culpability [42] ‑ [43].
These considerations will have a flow on effect on the application of the parity principle.
Where there is a minimum mandatory sentence of imprisonment the question for the sentencing judge is where, having regard to all relevant sentencing factors, the offending falls in the range between the least serious category of offending for which the minimum is appropriate and the worst category of offending for which the maximum is appropriate. The sentencing judge in this case did not err in refusing to identify a starting point at some level above the mandatory minimum so as to enable discounts for common mitigating factors. The sentencing judge was correct to reject the Crown's submission that he should do so. To choose a starting point at a sufficiently high level solely for the purpose of accommodating reductions for all potential mitigating factors offends the proportionality principle and treats the mere absence of mitigating factors as having an aggravating effect. In any event, the two‑stage approach to sentencing is not supported by the High Court: Markarian (378); Muldrock [26].
Moreover, the sentencing judge did not apply the approach that found favour with Riley CJ in Pot. He understood that the mandatory maximum and minimum sentences reflected the seriousness of the offence for the purpose of s 16A(1) and informed the proportionality assessment. The sentencing judge said:
I am mindful of the requirement to impose a sentence of a severity appropriate in all the circumstances of the case; that is, it must match the objective seriousness of the criminality. People trafficking is an extremely serious offence in breach of the provisions of the Migration Act, which seeks to deal fairly and properly with non-citizens, including refugees, wishing to migrate to Australia and/or seek protection in Australia. The activity of people trafficking results in a very heavy expense for the Australian community in its endeavours to detect and prevent the activity and in the processing of the non-citizens following detection. It affects the capacity of the country to properly address its international obligations and the rights and interests of those seeking to come here in a lawful manner. There are health and quarantine risks. In addition, of course, people trafficking facilitates the exploitation of non-citizens attempting to enter Australia illegally, and in many cases poses considerable risks for their safety. Regrettably, the activity of people trafficking is extremely common and increasing. And there is a clear responsibility on the courts to impose sentences which will act to deter and hopefully prevent people from engaging in it (ts 689).
The primary statutory purpose of s 233C is to create certainty as to the type and minimum length of sentence for the offence of people smuggling in order to maximise its deterrent effect, both in and outside Australia. Of course, its effectiveness as a deterrent depends on securing widespread knowledge of its existence, particularly outside Australia. I am unable to identify any express error in the sentencing judge's statement or application of sentencing principles. I would dismiss ground 1.

Manifest inadequacy

An appellate court is not entitled to intervene merely because it would have imposed a different sentence. The Crown has to establish that the sentencing judge made an express or implied material error of law or fact. There being no express error in the reasoning of the sentencing judge, the Crown must establish implied error from the sentences themselves. The question is whether it was open to the sentencing judge to conclude that the appellants' offending fell within the least serious category.
The appellants are Indonesian nationals and residents. At the time of sentencing, Mr Abdullah was aged 45, married and had five children. The sentencing judge found he had a very elementary education, was easy prey to sophisticated people smuggling organisers and offended from a strong financial imperative related to the maintenance of his family and the education of his children. The sentencing judge made an order for the forfeiture of 1,584,000 rupiah seized by the Commonwealth from Mr Abdullah.
Messrs Bahar and Anto were in their early twenties, had very limited education, were unsophisticated and lived in impoverished circumstances with their families. The sentencing judge found that they too offended by reason of a financial imperative.
None of the appellants had any involvement in the organisation of the people smuggling enterprise. The roles they played put them at the very bottom level of the hierarchy of culpability. Although the tasks they performed may be regarded as necessary to the success of the particular voyage, they would appear to have been targeted by organisers because they were both financially vulnerable and dispensable. There is no finding that any of the appellants understood the serious consequences that awaited them on their arrival in Australia. Having regard to all relevant sentencing considerations, it was open to the sentencing judge to regard the appellants' offending as being within the least serious category. Accordingly, I would dismiss the Crown appeal against sentence.

Conclusion

For these reasons, I would dismiss the conviction appeals and the sentence appeal.
MAZZA J: I agree with McLure P.