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:

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:

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.

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.

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…

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 Bifel v The Queen

Details

AGLC: Bifel v The Queen [2013] VSCA 82
Case: [2013] VSCA 82
Decision Date: 19 April 2013

CaseChat Overview and Summary

The case of Bifel v The Queen involved an application for leave to appeal against a sentence imposed by the sentencing judge in the County Court of Victoria. The applicant, Bifel, had pleaded guilty to one count of people smuggling in contravention of section 233A of the Migration Act 1958 (Cth). The specific issue at hand was whether the sentencing judge had misapplied current sentencing practices by effectively precluding the possibility of a non-custodial sentence. Additionally, it was questioned whether the sentence of 18 months' imprisonment, with release upon a recognizance release order after serving one year and 12 days, was manifestly excessive. The applicant argued that the sentencing judge had given undue weight to the principle of general deterrence.

The court examined the arguments presented by Bifel, noting that the sentencing judge did not fetter their discretion to impose a non-custodial sentence, as the applicant had contended. The court found that the sentence was not manifestly excessive and that the sentencing judge had properly considered the principles of general deterrence, which were crucial in cases of people smuggling. The court observed that general deterrence played a significant role in discouraging such activities and that the sentence reflected a balanced approach considering both the individual circumstances of the case and broader societal interests.

The application for leave to appeal was refused. The court's decision emphasised that the sentencing judge had appropriately exercised their discretion, taking into account all relevant factors, and that the sentence imposed was not manifestly excessive. The importance of general deterrence in people smuggling cases was underscored, reinforcing the necessity of appropriate sentencing to achieve this objective.

Orders