Bayu v The Queen
[2013] HCATrans 144
[2013] HCATrans 144
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S41 of 2013
B e t w e e n -
BAYU (AKA ILHAM DAHLAN)
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal
FRENCH CJ
KIEFEL J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 7 JUNE 2013, AT 2.01 PM
Copyright in the High Court of Australia
MS J.S. MANUELL, SC: May it please the Court, I appear for the applicant. (instructed by Heenan & Company Lawyers)
MR P.W. NEIL, SC: May it please your Honours, I appear with my learned friend, MS P.M. McENIERY, for the respondent. (instructed by Director of Public Prosecutions (Cth))
FRENCH CJ: Yes, Ms Manuell.
MS MANUELL: Yes. Your Honours, there is an extension of time sought.
FRENCH CJ: Is that opposed?
MR NEIL: No objection, your Honour.
FRENCH CJ: The extension is granted.
MS MANUELL: Thank you. Your Honours, this cases arises from the same decision in the Court of Criminal Appeal as the matter of Magaming that your Honours heard this morning. It concerns a different aspect of that particular decision. It concerns the application of Migration Act section 233C, which is now in similar form in section 236B of the Migration Act, and the application of that provision in the context of the statutory and common law principles ‑ ‑ ‑
FRENCH CJ: Is it right to say it is really the debate between the Pot approach and the Bahar approach?
MS MANUELL: That is right.
FRENCH CJ: Right.
MS MANUELL: It is. Obviously, in Bahar the Pot approach was considered, it was rejected, and we say that in the rejection of the Pot approach that President McLure did not have specific consideration to the way in which the mandatory minimum sentences impact upon the common law and statutory principles of sentencing. In particular – and as can be seen from the Queensland cases where the decision in Bahar has been applied – there has arisen an issue in relation to general deterrence, so that mandatory minimum sentences were introduced for the purposes of communicating to those in Australia and overseas, that the offence of people smuggling was one which the government sought to discourage.
The purpose of mandatory minimum sentences is their general deterrent effect. What has happened in the application of the Bahar approach is that sentencing judges are now considering these matters, approaching these matters, applying the common law and statutory principles – the usual principles, but they are taking into account the general deterrence aspect of those principles. The effect of that is, we say, that there is general deterrence heaped on top of general deterrence so that an offender is exposed to the three year mandatory minimum sentence and is then subject to a further consideration of the general deterrence principles in respect of that particular offender’s sentence.
KIEFEL J: Is that approach actually to be seen in the Bahar decision?
MS MANUELL: One of the issues is that President McLure did not address this specifically, and what President McLure did say was that the only positive inconsistency between section 233C and the general principles of sentencing was that section 17A of the Crimes Act did not apply, and section 17A provides that a sentence of imprisonment can only be imposed if the sentencing court is satisfied that there is no other alternative.
So on the basis that her Honour found, or the court found, that the only inconsistency was section 17A and that otherwise the general sentencing principles did apply, the expression or the way in which that has been dealt with can be seen in the Queensland decisions. If your Honours go to pages 107 and 108 of the application book there I have extracted relevant passages from Karabi, Latif and Selu, which are three of the four Queensland decisions, and the way in which they have taken general deterrence into account in determining those appeals is set out in those passages.
It is clear from what the Court of Appeal said in Queensland that the role of general deterrence in cases of this kind cannot be doubted ‑ that is Justice Muir – and Justice Fraser picks up on the passage in Karabi so that ‑ ‑ ‑
FRENCH CJ: Why do you say this amounts to double punishment? The Parliament sets a minimum, reflecting a policy of general deterrence, if you like, what is inconsistent with that and the taking into account of general deterrence in the place within the range that the sentence falls?
MS MANUELL: Well, it is double counting, in effect, because President McLure’s ‑ ‑ ‑
FRENCH CJ: Parliament is saying, well, there is at least this, the general deterrence; it does not say that that is everything for general deterrence, does it?
MS MANUELL: It does not say, sorry?
FRENCH CJ: It does not say that that is all – that that takes care of general deterrence? That is not a legislative statement associated with the fixing of a minimum ‑ ‑ ‑
MS MANUELL: No, but in the circumstances of these offences, or certainly the vast majority of these offences which have been – upon which convictions have been found in Australia, the type of offender has generally been a poor Indonesian fisherman for whom general deterrence – or a person of whom general deterrence might not be – he might not be the best vehicle in the sense that he comes from a ‑ ‑ ‑
FRENCH CJ: Well, that might be a matter to take into account in dealing with a particular offender, might it not?
MS MANUELL: Yes, but it would seem as though what has developed has been a pattern whereby general deterrence is, as it were, being counted for the first time within the Bahar parameters of the mandatory minimum sentences being the flaw of the sentences to be imposed.
KIEFEL J: Was what you suggest to be a duplication of the consideration of general deterrence actually applied in this case?
MS MANUELL: It was. If your Honours go to page 108 at paragraph 12 of the reply, this is Judge Charteris ‑ ‑ ‑
KIEFEL J: In the second sentence is not his Honour recognising that the offence itself imports notions of general deterrence?
MS MANUELL: Yes, he does, but the offence ‑ his Honour Judge Charteris accepted the Bahar approach. He accepted that his starting point for sentence was a minimum of a three year non‑parole period. He then additionally says in the first sentence:
‘The Crown urges upon me that I should give considerable weight to the need for general deterrence to be reflected in the sentence -
that is, the sentence of this offender. The mandatory minimum sentence has already provided, in our submission, that element more than enough of an element for general deterrence, more than what would ordinarily have been the case given the circumstances of this particular offender.
FRENCH CJ: If you were to say, all right, general deterrence is taken care of, as it were, by the mandatory minimum, does that take you out of the Bahar approach into the Pot approach?
MS MANUELL: It does.
FRENCH CJ: How does it do that?
MS MANUELL: Because the problem – well, whether it takes us out of the Bahar approach and puts us into the Pot approach, with ‑ ‑ ‑
FRENCH CJ: Does it take you out of the Bahar approach and, if so, where does it put you?
MS MANUELL: With the Pot approach a sentencing court formulates a sentence by having full regard to all of the ordinary ‑ ‑ ‑
FRENCH CJ: As though the minimum did not exist?
MS MANUELL: As though the minimum did not exist. That allows a proper consideration, proper weight, to be given to the circumstances – objective and subjective circumstances of the offence. There is then no difficulty in determining whether or not general deterrence has already been determined or whether or not there has already been an amount allocated to reflect general deterrence. What then would happen is that – as Chief Justice Riley said – was that then if a sentence that was formulated along the normal principles, if that were below the mandatory minima, then there would be an adjustment upwards to that sentence, and in those circumstances it would be very clear what weight the general deterrence aspect of the mandatory minimum sentence has had. It would be clear what effect it had in increasing the sentence.
FRENCH CJ: If you apply the ordinary principles before you bring in the mandatory minimum, and let us say you come up with something which is less than the mandatory minimum, you have applied considerations relevant to general deterrence, getting pulled up to the mandatory minimum. On your sort of logic it is double counting again, is it not, because the mandatory minimum is there as a reflection of a concern of general deterrence?
MS MANUELL: Yes. I suppose the attraction of the Pot approach is that it is then transparent, it is then – the effect of the mandatory minimum sentences is known, it is seen, and it can be fairly ‑ ‑ ‑
KIEFEL J: Sorry, what purpose does that serve? Some sort of admonition of the judiciary about mandatory minimum sentencing?
MS MANUELL: Well, the danger is that there is already the three year – the danger is that an offender might have his or her sentence significantly increased for the purposes of general deterrence, significantly increased over and above the three year, or the five year, whatever the mandatory minimum sentence was. That would, we say, place the offender in the situation where general deterrence has been significantly seen to increase his sentence, unlike the Pot approach where there was a transparency and that the sentence is taken only to the mandatory minimum.
The Sentencing Act (Vic) includes in it a provision to the effect that – at section 6D, I refer to it at the bottom of the application book, page 89 going on to page 90. That provision makes it clear what effect general deterrence is to have on sentence. There is a legislative command that a sentence can be increased to achieve a higher degree of general deterrence, the expression of general deterrence in a sentence. There was no such legislative command on the introduction of this legislation. There was no real explanation as to the way in which this legislation, these provisions, would impact upon the operation of the general statutory and common law principles.
FRENCH CJ: You have put submissions to us in relation to the effect of the Bahar approach and the way that general deterrence is treated. Now, are there other consequences of a constructional significance that you want to draw attention to?
MS MANUELL: Well, general deterrence is, I think, the specific aspect which has become apparent on the application of Bahar. As I said, it was not expressly referred to in or by President McLure in her judgment.
FRENCH CJ: Well, the Bahar approach is the centre of gravity, if you like, of the sentencing range upwards, whereas on the other approach your centre of gravity or, if you like, the median would be lower, you just have this cut‑off point which would be the minimum.
MS MANUELL: Yes. One of the other issues that was raised by President Allsop in the Court of Criminal Appeal was that there was no unjustness in the approach, the Bahar approach, because it meant that all of the sentences would be moved up effectively by the three years that constituted the mandatory minimum sentence.
FRENCH CJ: It is a kind of non‑linear compression if you take into account the range of people who are likely to fall into the lower level.
MS MANUELL: Yes, well, the bell curve.
FRENCH CJ: Yes, whatever way you like to draw it.
MS MANUELL: Yes, so the bell curve would be moving to the right. President Allsop referred to some compression of the sentences but was of the view that that was not necessarily unjust. That raises the other issue again as to what is actually happening in practice in terms of the sentencing for offenders charged under these provisions. I am not sure that there is, in fact, a bell curve of sentences that is apparent.
FRENCH CJ: Yes.
MS MANUELL: I think I can confine my submissions to that, your Honour.
FRENCH CJ: Thank you very much. We will not need to trouble you, Mr Neil.
This application for special leave concerns provisions of the Migration Act 1958 (Cth) which provide for mandatory minimum sentences of imprisonment for certain offences which involve what is called people smuggling and associated conduct. The essential question it raises is whether the construction of the provisions adopted by the Court of Appeal of the Supreme Court of Western Australia in Bahar and Ors v The Queen [2011] WASCA 249, which was applied by the Court of Appeal of the Supreme Court of New South Wales in this case and has been consistently applied by the Court of Appeal of the Supreme Court of Queensland, is correct. The decision of the New South Wales Court of Appeal and the decision upon which it rests go to a question of statutory interpretation. It is not attended with sufficient doubt, in our opinion, to warrant the grant of special leave. Special leave will be refused.
AT 2.20 PM THE MATTER WAS CONCLUDED