Bifel v The Queen

[2013] VSCA 82

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0273

DION BIFEL	Applicant
	v
THE QUEEN	Respondent

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JUDGES	WEINBERG, HARPER and PRIEST JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	26 March 2013
DATE OF JUDGMENT	19 April 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 82
JUDGMENT APPEALED FROM	DPP (Cth) v Jopar & Anor (Unreported, County Court of Victoria, Judge Gaynor, 31 October 2012)

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CRIMINAL LAW — Application for leave to appeal against sentence — Applicant pleaded guilty to one count of ‘people smuggling’ contrary to s 233A of the Migration Act 1958 (Cth) — Applicant a crew member of a boat intercepted travelling towards Australia carrying 51 passengers with no lawful right to come to Australia — Applicant played minor role in the people smuggling enterprise — Applicant unaware that boat bound for Australia prior to boarding — Applicant sentenced to 18 months’ imprisonment to be released upon recognizance release order after serving one year and 12 days’ imprisonment — Whether sentencing judge erroneously treated current sentencing practices for this offence as precluding a non-custodial sentence — Whether sentence imposed manifestly excessive — Whether sentencing judge gave undue weight to the principle of general deterrence — Sentencing judge did not fetter discretion to impose a non-custodial sentence — Sentence not manifestly excessive — Observations as to importance of general deterrence in cases of people smuggling — Application refused — R v Feng Lin (2001) 119 A Crim R 194.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Holt SC with Mr M Phillips	Victoria Legal Aid
For the Crown	Ms W Abraham QC with Ms K Breckweg	Office of Public Prosecutions (Cth)

WEINBERG JA:

1. I agree, substantially for the reasons given by Priest JA, that leave to appeal against sentence should be refused.  I refer to and repeat what I said in Jopar v The Queen.[1]  Much of that analysis is applicable to this application as well. 

   [1][2013] VSCA 83.

HARPER JA:

1. I have had the advantage of reading, in draft, the judgment of Priest JA.  I agree with his Honour that leave to appeal against sentence should be refused. I am also in general agreement with his Honour’s reasons for coming to that conclusion. 

1. One of the arguments put forward on behalf of the applicant in seeking leave was that the sentencing judge had given too much weight to general deterrence.  For the reasons given by me in my judgment in Jopar v The Queen[2], I accept that general deterrence is, very often, an important sentencing factor.  Depending upon the circumstances of the individual case, it may be of special significance where the offence is that of people smuggling;  but it must always be seen as merely one sentencing principle among all the others which are relevant to the particular sentencing exercise. 

   [2]Ibid.

1. Unlike other considerations which are properly regarded for sentencing purposes as aggravating factors (and therefore justify the imposition of a harsher penalty than would otherwise be appropriate), deterrence (whether special or general) involves the imposition of a more severe punishment than would be justified if the sole consideration were the degree of criminality involved in the offence.  General deterrence necessarily subjects the offender to a punishment, harsher than would otherwise be the case, fixed in part in the hope that its overall severity, while not directly justified by the extent of the offender’s criminality, will temper the criminal tendencies of others.  It is in my opinion thus clear that injustice

would result were general deterrence to so overwhelm other sentencing principles that a particular sentence became disproportionately rather than proportionately harsh when measured against the degree of criminality of which the offender is guilty.

1. There is, it seems to me, a danger that in people smuggling cases offenders with but a minor involvement, and with a commensurately minor measure of criminality, might be sentenced in circumstances in which general deterrence is given greater weight than is warranted by the seriousness of the offending conduct. 

PRIEST JA:

Introduction

1. Leave to appeal against sentence in this case should, in my opinion, be refused.  It is necessary that I state my reasons for that conclusion.

Procedural history and grounds of appeal

1. On 17 October 2011, Australian Customs and Border Control intercepted a boat travelling from Indonesia towards the Ashmore lslands carrying 51 passengers and four crew members, one of whom was the applicant.

1. A little over a year later, on 31 October 2012, the applicant pleaded guilty in the County Court at Melbourne to one count of ‘people smuggling’ under s 233A of the Migration Act 1958 (Cth). He was sentenced to be imprisoned for 18 months, to be released after serving one (1) year and 12 days imprisonment on a recognizance release order in the sum of $500 with a condition to be of good behaviour for 2 years. Pre-sentence detention of (1) year and 12 days was declared.

1. By a notice dated 28 November 2012, application is made to appeal against the sentence on two grounds:

1.The learned sentencing judge treated sentencing practices for this offence as precluding a non-custodial sentence; and

2.The sentence imposed was manifestly excessive, particularly because the learned sentencing judge gave undue weight to the principle of general deterrence.

Factual background

1. The essential facts may briefly be recounted.  Australian Customs and Border Control intercepted a boat travelling from Indonesia towards the Ashmore lslands on 17 October 2011.  On board were 51 passengers of Iraqi or Iranian origin and four male Indonesian crew members, including the applicant.

1. It seems that the captain of the boat was the applicant’s family friend.  He had recruited the applicant as a crewmember to illegally transport passengers to Australia, although the applicant was not told that the destination was Australia until after he boarded the boat.  The applicant was promised payment of a million rupiah (about $100 in Australian currency).  That sum was paid to his family.

1. Of the crew, the applicant was the only one successfully detained and prosecuted.  Others either left the boat prior to interception, had their prosecution discontinued or were returned to Indonesia without charge.

1. On 1 February 2012, the applicant was charged with the Aggravated offence of people smuggling under section 233C of the Migration Act 1958 (Cth).[3]   Despite being granted bail, he was detained in an Immigration Detention Centre.

   [3]Conviction for that offence would have made the applicant liable to a mandatory sentence of ‘at least’ five (5) years’ imprisonment, with a mandatory non-parole period of not less than three (3) years: Migration Act 1958, ss 236B(3)(c) and (4)(b).

1. Following an offer from the respondent, the applicant entered a plea of guilty at the Magistrates Court on 16 October 2012 to the Offence of people smuggling under section 233A of the Migration Act 1958 (Cth).

1. By the time of sentence on 31 October 2012, the applicant had been in immigration detention and custody for one (1) year and 12 days.  Following sentence, the applicant was deported from Australia.

Plea and reasons for sentence

1. During the plea, counsel for the applicant made no distinct submission on sentencing range.  The prosecution submitted, however, that a total effective sentence of two (2) to three (3) years imprisonment, with a non-parole period of between one (1) and two (2) years, was appropriate.

1. In her reasons for sentence, the sentencing judge noted that the applicant was 26 years old with no prior convictions.  He grew up in West Timor, where he lived until 2004 when he moved to a fishing port, Kupung, which the judge described as a place ‘where many other persons, in the experience of this court, have been recruited in order to become crew members of vessels engaged in people smuggling to Australia’.   The move was at the invitation of the applicant’s uncle, who provided the applicant with a job in deliveries from his hardware business, employment which the applicant held up until the time that he joined the crew on the people smuggling voyage.  He was approached in Kupung and recruited by a man, Wanase, ‘who became the captain after other crew members apparently further up in the people smuggling chain left the vessel’.  The applicant was taken on a smaller boat out to a larger vessel which made the trip to Ashmore Island under the cover of night.  Her Honour accepted, ‘and it does not seem to be disputed by the prosecution’, that the applicant’s ‘knowledge about this trip and what it entailed essentially came about once [he] actually boarded the vessel’.  She also accepted that overall the applicant’s role ‘was a minor one and that, like so many of the boat crew members that have come before this court, those who have profited far more from the enterprise have left the scene prior to interception and that essentially persons like [the applicant] were regarded by the organisers as expendable’.  The judge also was ‘perfectly satisfied that such people are aware that on interception they will be held in detention and that serious penalties apply in Australia for the activities they engage in’, and that it is ‘therefore important that they are able to recruit crew members like [the applicant] who are persons coming from fairly simple, hardworking lives to whom the amounts of money offered are highly attractive, who have little knowledge of what lies ahead of them, have very little sophistication and would be almost entirely unaware of the consequences of the role they have taken in crewing such vessels’. 

1. The judge observed that the applicant had remained in custody since 22 October 2011, being held in Immigration Detention Centres in Darwin for most of the time leading up to sentence. Unlike many other similar cases, the applicant’s family was ultimately paid the money that was promised. Nevertheless, the judge accepted that the applicant was ‘exploited’, and that he was ‘precisely the sort of unsophisticated man commonly approached by organisers as such journeys’. Her Honour further accepted that the consequences for the applicant have been significant. She took into account ‘the fact that originally [the applicant was] charged under s.233C of the Migration Act, a more serious charge which involves a mandatory sentence to which [he] understandably pleaded not guilty, and that once an offer was made of a charge under s.233A, where a mandatory sentence is not required, [he] immediately responded with a plea of guilty’. The judge also had regard to the applicant’s lack of prior criminal convictions, and that he is ‘ordinarily a hardworking and conscientious young man’. She was satisfied that the applicant was ‘most unlikely to re-offend’.

1. In support of the grounds of appeal, the applicant singled out the following passage of the judge’s reasons as disclosing error: 

It is quite clear from decisions handed down by the Courts of Appeal in Western Australia, South Australia, Queensland and the Australian Capital Territory that the issue of general deterrence, that is, sentencing in a way which sends out a message which is likely to deter others from undertaking similar activity is a significant issue for the courts in cases of this kind.  It was submitted to me that in this respect I should deal with you by way of a sentence of imprisonment, and I propose to do this. 

The first ground of appeal

1. With respect to the first ground of appeal – which claims that the sentencing judge treated sentencing practices for the offence of people smuggling as precluding a non-custodial sentence – the applicant submitted that the judge had, in effect, by remarks that she made in the case of Jopar,[4] fettered the proper exercise of her sentencing discretion.

   [4]Jopar v The Queen [2013] VSCA 83, [81].

1. There are two answers to that submission.  First, the reasons for sentence in the present case do not disclose that the sentencing judge fettered her discretion in the way submitted.  Secondly, even were it to be legitimate to have regard to what the judge had said in the case of Jopar in order to determine whether error is disclosed in the present case, in my view the judge did not fall into error when imposing sentence in that case.[5]

   [5]Ibid, [85].

1. The first ground is not made out.

Second ground of appeal

1. The second ground claims that the sentence is manifestly excessive, particularly because the sentencing judge gave undue weight to the principle of general deterrence.

1. It was submitted that in light of the judge’s findings that the applicant was ‘exploited’; he did not know the vessel was bound for Australia until he was on board; his plea of guilty was an early one; he had no prior convictions; and he was most unlikely to reoffend; the sentence was manifestly excessive. 

1. Further, it was submitted that too much weight was given to general deterrence.  In written submissions it was it was argued that the judge was wrong, so it was said, in holding that ‘the imposition of an immediate term of imprisonment was an expression of general deterrence that must accompany sentencing in such cases’.  General deterrence is a sentencing objective which, it was submitted, is difficult (if not impossible) ‘to practically achieve in an international context’, since the message meant to be conveyed by the sentence ‘would have to be received and comprehended by an impoverished farmer or fisherman, living a subsistence existence in a primitive environment with no access to modern media in a foreign archipelago of 17,500 islands’.  Orally, however, Mr Holt SC, who appeared with Mr Phillips for the applicant, did not challenge that general deterrence ‘is of importance’, and ‘could not argue that a short term of imprisonment was not open’.  But he argued that people smuggling ‘only works’ if people inveigled into it are unaware of what will happen to them if detected.

1. In my opinion, the sentence in this case is not manifestly excessive. The maximum penalty for the offence of people smuggling under s 233A of the Migration Act 1958 is imprisonment for 10 years, 1000 penalty units, or both. Despite the submissions of the applicant, in my view general deterrence is an important aspect of sentencing for the offence of people smuggling. The authorities make plain, for an offence such as this, general deterrence has a significant role to play.[6]

   [6]R v Feng Lin (2001) 119 A Crim R 194, 3–4 [3] (Mason P), 199–200 [49]–[50] (Carruthers AJ).

1. A sentence will only be regarded as manifestly excessive if it is so far outside the range of those sentences properly open as to bespeak error.[7]  Synthesising all relevant considerations,[8] in my view a head sentence of 18 months imprisonment was within the range of sentences properly open in the circumstances of this case.  Although in no way determinative, of course, I note that it was 25 percent below the figure at the bottom end of the range submitted by the prosecution to be appropriate.

   [7]Hanks v R [2011] VSCA 7, [22];  Neubecker v R [2012] VSCA 58, [74].

   [8]R v Kenny (Unreported, 2 October 1978, Vic, CCA).  See also DPP v Karazisis (2010) 31 VR 634, 662–3 [127] (Ashley, Redlich and Weinberg JJA).

1. Moreover, although the judge fixed a minimum term before release which equalled ‘time served’, in my opinion a minimum term approximating 12 months (in this case one year and 12 days) was also well within the range of those sentences properly open in all of the circumstances.  It was only 12 days higher than the bottom end of the prosecution’s range for the minimum term, and 48 percent less than the figure at the top end. 

1. I would not uphold the second ground.

Conclusion

1. Neither ground of appeal has substance.  The application for leave to appeal against sentence should be dismissed.

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