Bushter v R (Commonwealth)

[2017] NSWDC 87

District Court

New South Wales

Medium Neutral Citation:	Bushter v R (Commonwealth) [2017] NSWDC 87
Hearing dates:	15 March 2017
Decision date:	15 March 2017
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Appeal dismissed, convictions of the Local Court confirmed, in each case, imprisonment sentence of the Local Court are confirmed and to date from 13 March 2017
Catchwords:	CRIMINAL LAW – severity appeal from Local Court – people smuggling offences – whether exceptional hardship to a 3rd party established – appeals dismissed
Legislation Cited:	s.233A Migration Act 1958 (Commonwealth); s37(1) Australian Passport Act 2005 (Commonwealth)
Category:	Principal judgment
Parties:	Mohammad Bushter (aka Mohammad Abdul Hameed Asai).
Representation:	Mr Mufale (Appellant) Mr Croner (Commonwealth DPP)
File Number(s):	2016/00301519
Publication restriction:	Nil

Judgment

1. Mohammad Bushter was convicted in the Local Court of four offences. Two of those offences involved contraventions of s.233A of the Migration Act 1958 (Commonwealth). The other two offences involved contraventions of s.37(1) of the Australian Passport Act 2005 (Commonwealth).

2. He has appealed to this Court in relation to the penalties imposed by the Local Court.

3. The facts surrounding the offences can be very briefly stated.

4. Mr Bushter married his first wife I March 1995. That lady travelled to Australia on a Student Visa in 1995 and became an Australian Citizen in 1998. In 1997 the Offender came to Australia on a Spousal Visa and became an Australian Citizen in 2000. A child was born to their marriage in 2003.

5. In 2011 the Offender frequently travelled to Tehran.

6. According to him, he had been, by that stage, unemployed for six years and living off Centrelink - he apparently was receiving a Carer’s Pension.

7. Notwithstanding that he was receiving money from the Australian taxpayer to look after his wife, the offender spent long periods of time out of the country not caring for his wife. He would have the Court believe that he left a severely mentally ill woman in the care of his four children who were aged between six and eleven years. According to him he did this on many occasions between 2011 and 2016.

8. He was in Iran for the purpose of finding himself another wife. And in 2011 he again married – whilst still married to his first wife. Whether or not that was lawful in Iran, it is not lawful in Australia.

9. In 2014 the Offender left Australia with the passport of his real wife and the passport of one of his children. He did so with the deliberate intention of smuggling into Australia his second “wife” from Iran and her child. This is correctly described as “people smuggling.”

10. His criminal activities were discovered in the Middle East. And that lady and that child have never come to this country.

11. It was the intention of the Offender to smuggle them into this country in breach of Australia’s well known migration laws.

12. The Local Court imposed lenient sentences on the Offender, which sentences were totally consistent with precedent. (Indeed the Offender can consider himself lucky to have been prosecuted in the Local Court where the maximum penalty is only two years in prison. The maximum penalty in this Court is ten.)

13. For the two offences of attempting to people smuggle, the offender received the maximum penalty in the Local Court of two years, both of which were totally concurrent, even though two different persons were sought to be smuggled into the country. It might have been thought appropriate for there to have been partial accumulation rather than total concurrency.

14. The learned Magistrate found that he was to be released by way of a reconnaissance after serving half of that sentence, namely twelve months.

15. In relation to the passport offences, the maximum penalty again in the Local Court is two years. (And in this Court ten years).

16. For each of those offences, the Offender was sentenced to six months imprisonment totally concurrent - not only with each other, but with the people smuggling offences.

17. The only ground advanced on the appeal was the only ground that could possibly have been argued - and that was that there would be exceptional hardship to the offender’s first (now former) wife – with whom the Offender still lives.

18. That ground of appeal fails. If the Offender’s evidence is to be believed, his former wife was capable of being looked after previously by children between the ages of six and eleven. They are now thirteen, fifteen and eighteen. Their capacity to look after their mother is therefore significantly improved.

19. The Court does, however, have some residual suspicion about some of the activities of the Offender, but, in the context of these appeals, they are not taken into account adversely to him. How it was that he was able to raise and look after a number of adults and adolescents on Centrelink benefits and still find $200 to $400 a month to send to Iran and to find the money for the air fares to travel many times to and from Iran was never explained.

20. In the circumstances, I have no hesitation in concluding that the appellant has failed to prove “exceptional circumstances” within the meaning of the law.

21. The appeals are dismissed.

22. The orders of the Local Court are confirmed.

23. The Offender will now go into custody.

Decision last updated: 24 April 2017