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…

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 Bahar v The Queen

Details

AGLC: Bahar v The Queen [2011] WASCA 249
Case: [2011] WASCA 249
Decision Date: 15 NOVEMBER 2011

CaseChat Overview and Summary

In the matter of Bahar v The Queen, the defendant, an Iranian national, was convicted by the County Court of Victoria for engaging in a people smuggling offence contrary to section 232A of the Migration Act 1958 (Cth). The defendant appealed both his conviction and the sentence imposed by the County Court. The appeal was heard by the Court of Appeal of the Supreme Court of Victoria, which was required to determine whether the trial judge had correctly directed the jury on the defence of mistake under section 9.1 of the Criminal Code Act 1995 (Cth) and whether the proof of fault elements negated any possibility of the defence. Additionally, the Court was required to consider the correct approach to sentencing an offender for a federal offence for which a statutory minimum term of imprisonment was prescribed.

The Court of Appeal began by examining whether the trial judge was required to direct the jury on the defence of mistake. The defendant argued that he genuinely and reasonably believed he was acting in the best interests of the people he was smuggling and thus had a valid defence of mistake. The Court considered the statutory provision, which requires a person to intentionally engage in conduct that facilitates the entry of a non-citizen into Australia, and whether a reasonable mistake could negate this intent. The Court concluded that the trial judge was correct not to direct the jury on the defence of mistake, as the evidence showed that the defendant's actions were deliberate and intentional, thus negating the possibility of a genuine mistake. The Court of Appeal also examined the fault elements of the offence, including the defendant's knowledge and intention, and found that they were sufficiently proven by the prosecution.

In determining the appropriate sentence, the Court of Appeal noted that the defendant's offence was serious, involving the exploitation of vulnerable people. The Court considered the statutory minimum term of imprisonment prescribed for the offence and the principles of sentencing outlined in the Sentencing Act 1991 (Vic). The Court held that the trial judge had correctly applied the principles of sentencing, taking into account the gravity of the offence, the defendant's culpability, and the need for deterrence and denunciation. The Court of Appeal dismissed the appeal against both the conviction and the sentence, upholding the County Court's decision.

Orders