DPP (Cth) v Haidari
[2013] VSCA 149
•19 June 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0234
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| Appellant |
| v |
| ALI HAIDARI |
| Respondent |
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| JUDGES | WEINBERG, HARPER and PRIEST JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 26 March 2013 |
| DATE OF JUDGMENT | 19 June 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 149 |
| JUDGMENT APPEALED FROM | DPP v Haidari [2012] VCC 1387 (Chief Judge Rozenes) |
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CRIMINAL LAW — Sentence — Director’s appeal — People smuggling — Organising the bringing of groups of non-citizens into Australia — Importing a marketable quantity of a border controlled substance (methamphetamine) — Pleas of guilty – Sentenced to a total effective sentence of 11 years 6 months’ imprisonment — Non-parole period of 8 years — Application of mandatory minimum statutory sentencing regime – Whether sentence imposed was manifestly inadequate — Operation of principle of totality where mandatory minimum sentencing regime applies — Whether sentencing judge erred in giving too much weight to the fact a ‘sting operation’ resulted in one of the people smuggling charges — Whether sentencing judge erred in cumulation of sentences — Atherden v Western Australia [2010] WASCA 33, R v Taouk (1993) 65 A Crim R 387, R v DW [2012] NSWCCA 66, Hili v The Queen (2010) 242 CLR 520, R v Creed (1985) 37 SASR 566 and Mill v The Queen (1988) 166 CLR 59 discussed — Bahar v The Queen (2011) 255 FLR 80 applied — Appeal dismissed.
Migration Act 1958 (Cth), ss 232A, 233(1)(a) and 233C – Criminal Code (Cth), s 307.2(1).
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| Appearances: | Counsel | Solicitors |
| For the Crown | Ms W Abraham QC with Ms K Breckweg | Director of Public Prosecutions (Cth) |
| For the Respondent | Mr T Kassimatis with Ms B F Franjic | Valos Black & Associates |
WEINBERG JA:
I agree, for the reasons given by Harper JA, that this appeal should be dismissed.
HARPER JA:
Introduction
The respondent was born in Iraq 38 years ago. His family was Kurdish. Their fate, along with that of very many Iraqi Kurds, was to be subjected to discriminatory treatment by the regime then headed by Saddam Hussein. When he was only a year old, his father disappeared. It was the last his family heard of him. In fear, they fled to Iran; but, as foreigners in another unwelcoming environment, they were unable to enjoy the full rights of citizenship – they could not even open a bank account. No school would accept the children. As a consequence, the respondent has had no formal schooling. Home was a tent pitched somewhere in the Iranian countryside. The surrounding violence was endemic.
Although it meant leaving his family behind, the respondent – then aged 26 – fled to Malaysia. From there, he and some 50 or 60 fellow asylum seekers sailed to Australia. Following interception by the RAN, he spent four months in detention in Port Headland before being granted a protection visa and moving to Melbourne. He was granted Australian citizenship in 2007. No other members of his family have joined him in Australia.
It is impossible, at this geographical and psychological distance from the influences which shaped the respondent’s character before he accepted citizenship, fully to understand the forces at work as he came to decide what to do with his life. But by any measure the choices were unwise. On 27 July 2012, he pleaded guilty in the County Court to three people smuggling charges contrary to the Migration Act 1958, and to one charge of importing a border controlled drug (methamphetamine)
contrary to the Criminal Code. Both enactments are creatures of the Commonwealth Parliament.
Networking may be, but is not necessarily, the pathway to an honourable position in society. In this case, the respondent‘s contacts have influenced his move in the opposite direction. In October 2009, an Iranian citizen (a man whose family name appears in the indictment as ‘Qureishi’ but is sometimes reproduced in the materials as ‘Karachi’) was given the respondent’s telephone number together with a recommendation that he was someone who could assist in turning into reality Mr Qureishi’s wish to emigrate to Australia. The information came from a customer of the shop in which Mr Qureishi worked.
Mr Qureishi made the call and the respondent, using the name ‘Nehmat’ answered it. In the second fortnight of November that year, he met the client in Indonesia, and received US$8,000 as a down payment for the prospective voyage to this country. Up to $3,000 of this was attributed to the voyage itself. The balance was, it seems, the respondent’s fee. The respondent told Mr Qureishi that part of the total sum was referable to the provision of a life jacket which, therefore, he need not purchase for himself.
On 22 November or thereabouts, Mr Qureishi boarded the boat, now known by the Australian authorities as Suspected Illegal Entry Vessel (SIEV) 77, which was to take him on his journey. Despite the respondent’s representations, it was not equipped with life jackets. Three days later Mr Qureishi, the 48 other passengers, and three Indonesian crew, were intercepted within the Christmas Island contiguous zone. It had not been a pleasant journey. Some of the passengers were suffering from severe sunburn, dehydration and seasickness. The respondent’s involvement in arranging Mr Qureishi’s passage on SIEV 77 forms the basis of charge 1.
The respondent was back in Indonesia by 3 February 2010. The following month, he arranged the passage to Australia of a total of six Iranian Kurds – members of, respectively, the Rami family and the Basham family – on the vessel now designated SIEV 124 (charge 2). He received at least US$10,000 as his reward for his part in placing his clients on a significantly overcrowded boat which in addition posed a quarantine risk because it brought not only its human cargo, but also ants, borer and considerable marine growth.
Charge 3 concerned the importation of a marketable quantity of methamphetamine. The evidence of the respondent’s involvement came, in large part, from recordings obtained from telephone intercepts during a period which began on 6 June 2011 and ended on the following 6 July. On 8 July and again the next day, the police searched the respondent’s premises in Thornbury and seized a briefcase later found to have, in concealed compartments in its bases and its lid, 629.5 grams of crystalline material which was 80.3% pure methamphetamine. Its estimated street value was between $1,010,000 and $5,054,000.
The final charge arose out of the work of an undercover police officer who posed as someone who wanted the respondent’s help to bring six people from Indonesia to Australia. The respondent was prepared to oblige. Meetings were held. The respondent was supplied with six names, contacts and contact numbers, and AUD$15,000 as part payment for the $6,500 per person he required. The respondent was arrested at the meeting at which the balance of his fee was due to be transferred. He had taken possession of a further AUD$15,000 immediately before his arrest.
The respondent was sentenced on 20 September 2012. The penalties imposed are shown in the table which follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1. People Smuggling [Migration Act 1958 (Cth) s 233(1)(a)] 10 years’ imprisonment and/or $110,000 fine 4 years’ imprisonment to commence 20 March 2020 3 years, 6 months 2. Organising bringing of groups of non-citizens into Australia [Migration Act 1958 (Cth) s 232A] 20 years’ imprisonment and/or $220,000 fine 8 years’ imprisonment Base Charge on Indictment Offence Maximum Sentence Cumulation 3. Import a marketable quantity of a border controlled drug [Criminal Code (Cth) s 307.2(1)] 25 years’ imprisonment and/or $550,000 fine 6 years’ imprisonment to commence 20 September 2016 2 years (wholly overlapping with cumulation on charge 1) 4. Aggravated offence of people smuggling (at least 5 people) [Migration Act 1958 (Cth) s 233C] 20 years’ imprisonment and/or $220,000 fine 8 years’ imprisonment N/A Total Effective Sentence: 11 years, 6 months Non-Parole Period: 8 years Pre-sentence Detention Declared: 351 days 6AAA Statement: TES: 15 years
NPP: 11 years
The offence the subject of the first charge was said by the Crown to have occurred between 17 November 2009 and 26 November that year; that the subject of the second, between the first and the last days of March 2010; and the fourth between 14 September 2011 and the following 5 October. These dates are significant, because the Migration Act has been frequently amended. The amendments since the respondent’s offending have included those to the sections under which he has been charged, as well as amendments to the sections prescribing the punishments to which he is lawfully liable.
It is relevant to note that, having been convicted of an offence (charge 2) against s 232A of the Act (as that section then was) the respondent fell within the mandatory minimum sentencing regime established by what was then s 233C, but is now s 236B, of the Act. At the relevant time, s 233C applied to offenders convicted of an offence against (amongst other sections) s 232A; and its effect was to require the sentencing court to impose a sentence of imprisonment of at least 5 years, with a minimum non-parole period of at least 3 years.
By September 2011, and therefore by the time of the commission of the offence upon which the charge 4 was based, the former s 233C – dealing with mandatory sentences for certain offences – had been amended to deal instead with the offence of aggravated people smuggling. That offence (that is, the offence giving rise to charge 4) was at that time (September 2011) subject to the sentencing regime in place pursuant to s 236B of the Migration Act. The later section provides that, if the conviction under s 233C is for a repeat offence, the court must impose a sentence of imprisonment of at least 8 years, with a minimum non-parole period of 5 years; and a conviction is for a repeat offence if a court has convicted the offender for another offence, being an offence against either s 232A or s 233A of the Act as in force at the time the offence giving rise to charge 2 was committed in March 2010.
In summary, the respondent was at the date of sentence (20 September 2012) liable on conviction on charge 2 to a maximum penalty (putting fines to one side) of 20 years’ imprisonment. A minimum penalty of 5 years (with at least 3 years to serve before becoming eligible for parole) was also applicable; and, on conviction on charge 4, the respondent was liable to a maximum penalty of 20 years’ imprisonment, and a minimum penalty of 8 years (with at least 5 years to serve before becoming eligible for parole). It is against this background that the sentences of imprisonment of, respectively, 4 years for people smuggling (charge 1), 8 years for organising the bringing of groups of non-citizens into Australia (charge 2) and 8 years for the repeat offence of people smuggling (charge 4) were fixed.
The grounds of appeal
On 16 October 2012, the Acting Commonwealth Director of Public Prosecutions signed a notice of appeal in which he stated that in his opinion there was an error in the sentences imposed on 20 September that year, and that an appeal should be brought in the public interest. He relied on the following grounds of appeal:
Ground 1
The sentence imposed on the respondent on charge 4 on the indictment was manifestly inadequate.
Particulars
In imposing the minimum mandatory statutory sentence on Charge 4, the learned sentencing judge failed to give sufficient weight to:
(i) the nature and circumstances of the offence;
(ii) the role of the respondent as an ‘organiser’ in the offending comprising charge 4, particularly in view of the principles stated in Bahar v The Queen (2011) 255 FLR 80;
(iii) the principle of general deterrence;
(iv) the principle of specific deterrence and the prospects of rehabilitation of the respondent in view of the fact that this was the third instance of the same or highly similar offending; and
(v) the need to ensure the respondent was adequately punished for the offence.
Ground 2
In imposing the minimum mandatory statutory sentence on Charge 4, the learned sentencing judge gave too much weight to:
(i) the fact that the offence involved a ‘sting operation’ involving a undercover police operative; and
(ii) the fact that there were no actual non-citizens whose proposed entry into Australia the Respondent intended to facilitate -
thereby disclosing a specific error in evaluating the significance of these facts (see DPP (Vic) v Terrick (2009) 24 VR 457; Pesa v The Queen [2012] VSCA 109).
Ground 3
The learned sentencing judge erred in failing to provide for any cumulation of the sentence imposed on charge 4 upon the sentence imposed on charge 2.
Ground 4
The individual sentences imposed, the orders made in cumulating those sentences and the period fixed as the single non-parole period resulted in an overall sentence which is manifestly inadequate.
Particulars
The sentence was manifestly inadequate as the learned sentencing judge failed to:
(i) cumulate any part of the sentence on charge 4 with the base sentence on charge 2;
(ii) give sufficient weight to the objective seriousness of the offences;
(iii) give sufficient weight to the principle of general deterrence; and
(iv) give sufficient weight to the principle of specific deterrence.
General sentencing considerations in this case
It is convenient to discuss the relevant general sentencing considerations first because (as the sentencing judge correctly appreciated) issues of totality arise in determining the total effective sentence, and that sentence must be fixed after taking into consideration all the relevant sentencing principles. And because charges 1, 2 and 4 each involve people smuggling, each have significant features in common.
The Director supports his submission that the total effective sentence is inadequate by referring to statements by the courts to the effect that the unlawful entry of non-citizens into Australia is a serious violation of this country’s sovereignty and national security; presents obvious social problems to the fabric of Australian society; and imposes significant costs upon the Australian public.[1]
[1]Feng Lin (2001) 119 A Crim R 194,[3].
The latter submissions are relatively non-controversial. The same cannot be said about all judicial references to the public policy considerations upon which the appellant relies as being explanatory of Australia’s immigration laws. It seems to me, with respect, that to posit that this country is particularly vulnerable to the impositions which accompany the arrival of asylum seekers[2] not only comes close to a partisan view of a controversial policy, but also does scant justice to those nations, many of them with very meagre resources, which are under far more pressure from desperate pleas for refuge and succour than this country is ever likely to be. Similarly, to speak judicially of Australia seeking to deal in a fair and orderly way with refugees[3] certainly reflects the strongly-held views of many; but that proposition would be equally strongly refuted by others. It is an area of political controversy which in my opinion the courts would do well to eschew. I respectfully decline to accept that these pronouncements enhance the appellant’s submissions.
[2]Ibid [51].
[3]Cita and Lamaha (2001) 120 A Crim R 307, [24].
What is beyond argument is that high-level people smugglers who take large sums of money from clients who can ill afford to pay, and in return subject the payees and their families to perilous journeys with an inadequacy of almost everything needed for food, safety and comfort, deserve severe punishment. Parliament is clearly of that opinion, and minimum sentences are a reflection of it. So too is the proposition that specific and general deterrence is in these cases an important sentencing consideration.
The objective seriousness of the respondent’s criminality does not equate with that of a lowly member of a SIEV crew. I accept the Director’s submission that the respondent was acting as an ‘organiser’ quite prepared for personal financial gain to exploit the vulnerability of others, including by putting them at risk of their lives. As the sentencing judge said when, in his reasons for sentence, he addressed the respondent:
You had a role to play both in the country of origin in giving instructions about travel to Indonesia and the documentation required. You arranged for money to be paid by them. You arranged for them to be met on arrival in Indonesia and to be transported and housed whilst waiting for a boat to bring them to Australia. You took or had taken from them further monies and arranged for them to be transported to the boat which eventually brought them to Australian waters. ... [Y]our role was ... integral, varied and crucial. You understood and were across the totality of the logistics of the exercise and you were involved at every stage. You were far more than just an intermediary.[4]
[4]Reasons for sentence, [25].
Specific and general deterrence is, accordingly, a particularly significant sentencing factor. It is also necessary to take into account the fact that greed was a powerful motive. Not only did the respondent extract large sums from the two Kurdish-Iranian families before the voyage the subject of charge 2 began, but he pursued them for more once they had been released from immigration detention and settled in Australia. Thus, on 2 March 2011, the head of the Basham family received a telephone call from ‘Nehmat’ – the respondent – demanding two million toman (an unofficial currency unit which is the equivalent of ten rials, the official unit of currency in Iran). The evidence available to this Court does not reveal whether these demands were met. It is clear, however, that Mr Basham not only resisted, but also accused the respondent of responsibility for the loss of the family’s baggage during the course of their journey to Australia.
On 7 June 2011, the head of the Rami family was similarly approached. He did not resist – or at least not much. On 8 June, $1,400 was paid into the respondent’s bank account.
There is also the criminality involved in charge 3. The respondent imported the equivalent of 505.4 grams of pure methamphetamine. This is at the high end of a marketable quantity, which is 2 grams, while a commercial quantity is 750 grams. As the sentencing judge found, nothing was advanced on the respondent’s behalf to show that others were involved in the Australian arm of the drug-running operation, and he alone was in a position to decide whether the drugs were to be sold by wholesale or at street level. Either way, and as with his people-smuggling activities, he stood to gain very considerably by exploiting the vulnerability of others.
There is, however, no ground of appeal which seeks to challenge the sentence passed upon the respondent for his offence against s 307.2(1) of the Criminal Code. There is only the general ground of appeal (ground 4) that the individual sentences imposed, the orders for cumulation and the non-parole period resulted in an overall sentence which is manifestly inadequate. The sentence on charge 3 is therefore to be examined only in relation to issues of totality and the manifest inadequacy (or otherwise) of the total effective sentence and non-parole period.
The objective seriousness of the respondent’s criminality and the importance of specific and general deterrence are important factors when assessing the extent of the respondent’s criminality. Other factors, pointing in the opposite direction, are important too. First, the respondent came to Australia as an impoverished, uneducated young adult, speaking English (to the extent that he spoke in English at all) as a second – or perhaps third or fourth – language; and none of the other members of his family were with him. Secondly, he pleaded guilty at an early stage, and – insofar as the statutory minimum terms allow[5] – must be credited with the resultant significant utilitarian benefit which in this case accompanies that plea.[6] Thirdly, he offered to assist the authorities. (They failed to take up the offer, but I respectfully agree with the sentencing judge that the offer should nevertheless be counted in his favour.) Fourthly, he has no relevant prior convictions.
[5]Atherden v Western Australia [2010] WASCA 33, [42]-[43] (Wheeler JA).
[6]Phillips v The Queen [2012] VSCA 140.
These matters must in my opinion mitigate his criminality. And there is an additional consideration. The respondent’s circumstances were such that, when those with whom he remained connected in Iran and elsewhere, including perhaps close members of his family, contacted him with the proposition that he assist an acquaintance to get into Australia, he would have found it difficult to say no. It was in this way that his career as a people smuggler began with Mr Qureishi. And it may be accepted, as was submitted on his behalf during the hearing of the plea, that an element of altruism intruded. He knew what it was like to be a refugee. Until his application for Australian citizenship was granted, that was his life. It would be very difficult for anyone with a background similar to that of the respondent not to feel very sympathetic towards those who have no choice but to abandon almost everything which they treasure, and nearly all which has shaped not only their own lives but also the lives of their forebears – everything which makes them what they are – for a highly hazardous journey into an equally hazardous unknown.
I now turn to consider the merits of the individual grounds of appeal.
Grounds 1 and 2 – manifest inadequacy of the sentence on charge 4; specific error in evaluating the significance of the facts relevant to that charge
It is convenient to discuss these two grounds together. The particulars given under ground 1 include the nature and circumstances of the offence and the need to ensure its adequate punishment. Each of these dovetail with the contention, expressed in ground 2, that the sentencing judge made a specific error in giving too much weight to (i) the fact that the offence the subject of charge 4 involved a ‘sting operation’ (in other words, it involved entrapment) and (ii) ‘the fact that there were no actual non-citizens whose proposed entry into Australia the respondent intended to facilitate’.
For the reasons given earlier in this judgment, the respondent was, on being convicted of an offence against s 233C of the Migration Act, bound to be imprisoned for at least 8 years, but no more than 20. He was in fact sentenced on charge 4 to imprisonment for the minimum term of 8 years, with a requirement that he serve 5 years (again the minimum) before being eligible for parole.
The circumstances in which an offender enters into a criminal enterprise are relevant to sentence.[7] One relevant consideration is, therefore, the relationship between the respondent and the undercover police officer which resulted in the conduct upon which charge 4 is based. That relationship was, according to the prosecution’s summary of the facts, initiated not by the appellant but by the police. On 23 September 2011, an undercover police officer telephoned the appellant, who identified himself as ‘Nehmat’. The caller said that his name was ‘Pedro Santos’. Arrangements were made to meet the following day. In what followed, the appellant demonstrated a willingness, perhaps even an eagerness, to become involved in transporting six asylum seekers to Australia by boat in return for a payment of $6,500 per person.
[7]Richard Fox and Arie Freiberg, Sentencing: State and Federal Law in Victoria (Oxford University Press, 2nd ed, 1999) 250 [3.618].
If there is a real likelihood that, in the absence of police inducement, the offender would not have committed the crime, leniency may well be indicated. In the words of Badgery-Parker J in R v Taouk:[8]
… when it comes to sentence, the question is … whether there is a real possibility that but for the assistance, encouragement or incitement offered by police officers he would not have [committed the crime], and whether in all the circumstances of the case the involvement of the police in the commission of the crime was such as to diminish his culpability.
[8](1993) 65 A Crim R 387, 404.
This passage was approved by Spigelman CJ in R v N.[9] In that case, Adams J, with whom the Chief Justice and Dunford J agreed, distinguished between (on the one hand) those who had been encouraged by the police to do what they otherwise would not have done, and (on the other) those who were in engaged in the criminal behaviour in question as part of their ongoing business.[10]
[9](1999) 106 A Crim R 493, 504
[10]Ibid 501-502 (Adams J).
It might be argued that the respondent falls into the latter category. As the sentencing judge remarked during the course of the plea, the respondent ‘is in the business of [people] smuggling, as he says himself.’[11] The prosecutor responded: ‘That’s right’. Counsel for the respondent did not suggest to the contrary. And, by the time the sentencing judge came to consider charge 4, the respondent was before the court on his third charge of people smuggling.
[11]Plea transcript, 47, line 8.
The appellant has, in ground 2, identified what he contends is a specific error in that the sentencing judge ‘gave too much weight to the fact that the offence [which gave rise to charge 4] involved a ‘sting operation’ involving an undercover police operation’. And his Honour did say in his reasons for sentence that: ‘Had this been other than a sting operation, I would have sentenced you to a greater sentence than the mandatory minimum.’
The issue, it seems to me, is whether the sentencing judge was wrong in holding that the involvement of the police in the commission of the crime was such as to diminish the culpability of the respondent. I do not think that his Honour was. If the respondent was engaging in a business, it was on a very small scale; and, without the involvement of the police, it might never have become larger. Bringing seven non-citizens to Australia in a period of two years between November 2009 and October 2011 is people smuggling in a very minor way. Moreover, this case is not comparable with those in which the police, as part of an evidence-gathering exercise, inveigle themselves into (for example) a drug-running ring and in the process become involved in a drug-trafficking incident. If the undercover agent had not contacted the respondent, the particular, discrete, events which resulted in charge 4 would not have happened. And (to adopt the words of Badgery-Parker in Taouk) there is in this case ‘a real possibility that, but for the assistance, encouragement or incitement offered by police officers he [the respondent] would not have [committed the crime].’
It is also necessary to take into consideration the fact that the respondent’s offending put no one at risk; and that factor, when properly taken into account, diminishes the respondent’s culpability. As Hulme J said in R v DW:
[A]bsent circumstances where criminality has been exacerbated by or at the instigation of authorities, the circumstance that the authorities have been complicit in offending or have prevented drugs from being disseminated into the community, in no way mitigates the subjective criminality of the offender. However, if the involvement of the authorities prevents the transaction from resulting in harm, it is illogical not to afford that fact appropriate weight just as in the converse situation one would take account of any damage that was a consequence of the offending.[12] (My emphasis.)
[12][2012] NSWCCA 66, [117].
In my respectful opinion, therefore, neither of the two matters which are relied upon by the appellant as indicating specific error is capable of supporting ground 2 of the grounds of appeal. That ground is, therefore, not made out.
Nor, in my opinion, is ground 1. It is I think important that charge 1 involved only Mr Qureishi, and charges 2 and 4 only six persons – a tiny number when compared to the total on board many SIEV craft. All of the total of seven who actually arrived in Australia began their journey in Iran. The six who, as a result of the undercover approach, the respondent planned to transport from Indonesia, were thought by the respondent to have begun from the same country – or that was what he was told by the undercover police officer.[13] These facts give substance to the notion that the respondent’s own experiences may have added an element of altruism into his people-smuggling activities. Although he was in that business, it
was in a very small way and involved people who may well, like him, have had every reason to think that Iran was a hostile place in which to live.
[13]Prosecution summary of facts, [44].
I have carefully considered whether the seriousness of the respondent’s criminality, and the importance of specific and general deterrence, are such as to preclude the imposition of the minimum sentence on charge 4 when, in accordance with the process of instinctive synthesis, these factors are evaluated together with all the mitigating and other relevant circumstances. Minimum sentences are ‘for offences within the least serious category of offending [just as] the maximum penalty is for offences within the worst category of offending.’[14] There is no single instance at either extreme; but the question is whether it is possible to place a serial organiser of people smuggling, on being sentenced for the third time for this offence, into the least serious category of offending.
[14]Bahar v The Queen (2011) 255 FLR 80, [55] (Bahar).
I think that it is. When the mitigating circumstances are taken into account, as they must be, I am unable to conclude that, in exercising his sentencing discretion, the sentencing judge made an error of the kind which was contemplated by the High Court in House v The King[15] and which would, if made, open the way for this Court to exercise that discretion itself. To slightly adapt the words of the joint judgment of Dixon, Evatt and McTiernan JJ in House, I do not think that, in the circumstances stated above, the sentence imposed upon the respondent, although perhaps lenient, was unreasonably so; and there is no other ground for saying that it ‘arose from error of fact or law, or failure to take into account any material consideration, or from giving undue weight to any circumstance or matter.’ [16] As McLure P said in Bahar:
An appellate court is not entitled to intervene merely because it would have imposed a different sentence. The Crown has to establish that the sentencing judge made an express or implied material error of law or fact.[17]
[15](1936) 55 CLR 499.
[16]Ibid 507.
[17]At [61].
I have in coming to the conclusion expressed above taken into account the proposition that, although the imposition of a minimum sentencing regime does not oust either the sentencing principles of the common law or the accommodation of those principles effected by s16A of the Crimes Act 1914 (Cth),[18] it necessarily modifies both. Thus while ‘the common law principles relating to, inter alia, general deterrence, totality and parity apply to the sentencing of federal offenders’,[19] minimum sentences may, especially when considerations of totality also apply, affect the sentencing court’s approach to mitigating circumstances. The objective circumstances against which the gravity of people smuggling crimes is to be judged include, as an essential element, the fact that Parliament requires the imposition of minimum penalties for those offences. One of the consequences was considered by Wheeler JA in Atherden v Western Australia:
[I]n relation to at least some offences which fall towards the lower end of the range of culpability, the presence of a minimum term makes it impossible for a sentencing judge to apply the quantum of discount for a plea of guilty which he or she would ordinarily apply, because to do so would mean that the sentence imposed would fall below the statutory minimum. Where an offence is right at the bottom of the range of culpability, it may be that no discount at all can be given, for the same reason.
However, I do not think it follows that the principles governing the awarding of a discount for a plea of guilty cease to apply in cases where there is a statutory minimum term. Rather, the result will be that there is a compression of sentences towards the lower end of the range, with offences at the bottom of the range of culpability treated effectively in the same way as those which are towards the lower end, but not at the extreme lower end, of culpability.[20]
[18]Hili v The Queen (2010) 242 CLR 520, [25].
[19]Bahar, [34].
[20][2010] WASCA 33, [42]-[43].
Whether an offence falls within the least serious category is to be determined by reference to all relevant sentencing considerations, including matters personal to the offender. Where there is a minimum statutory sentence of imprisonment, the question for the sentencing judge is where, having regard to all relevant sentencing factors, the offending falls within the range between the least serious category of offending for which the minimum is appropriate and the worst category of offending for which the maximum is appropriate.[21]
[21]Bahar, [58].
One sentencing factor which is relevant in this case is the principle enunciated by the High Court in Hoare v The Queen:
[A] basic principle of sentencing law is that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances.[22]
[22](1989) 167 CLR 348, 354 (Emphasis as in the original.).
Individual sentences must not only fall within the perimeter of proportionality, but – where an offender is being sentenced for a multiplicity of offences – the total sentence must be proportionate to the totality of the offending. In Postiglione v The Queen, McHugh J explained the principle in the following words:
The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the offences appropriate for each offence is a just and appropriate measure of the total criminality involved.[23]
[23](1997) 189 CLR 295, 307-308.
And this, of course, has particular relevance in this case. It is impossible to evaluate a submission that, in this case, the sentence imposed in respect of charge 4 was manifestly inadequate without also examining the sentences imposed in respect of the other offences for which the respondent was sentenced before fixing upon a total effective sentence which is proportionate to the respondent’s overall criminality. If the total effective sentence is unimpeachable, then an individual sentence which has been reasonably adjusted to achieve that end will also be unimpeachable (as will a total effective sentence which has been reached by sensible orders for concurrency). In this case, it seems to me that, in arriving at the sentence imposed on the respondent in respect of charge 4, his Honour has made such reasonable adjustment as is appropriate to achieve a proper total effective sentence.
For these reasons, grounds 1 and 2 are not made out.
Grounds 3 and 4 – failing to cumulate; head sentence manifestly inadequate
These grounds too overlap. For that reason they will also be considered together. Ground 3 is that the sentencing judge ‘erred in failing to provide for any cumulation of the sentence imposed on charge 4 upon the sentence imposed on charge 2.’ So far as is presently relevant, ground 4 is that each of the individual sentences imposed, the orders made in cumulating those sentences and the period fixed as the single non-parole period resulted in an overall sentence which is manifestly inadequate. One of the particulars of ground 4 is that his Honour ‘failed to ... cumulate any part of the sentence on charge 4 with the base sentence on charge 2’.
These grounds require further consideration of issues of totality. When sentences are imposed for numerous offences, the sentencing judge should ‘stand back and look at the overall picture and decide whether the total of what would otherwise be the appropriate sentence is a fair and reasonable total sentence to impose’.[24] This is an aspect of the totality principle, which, as the High Court said in Mill v The Queen[25] ‘is a recognised principle of sentencing formulated to assist a court when sentencing an offender for a number of offences.’ It is described succinctly in Thomas, Principles of Sentencing[26] as follows (omitting references):
The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong’; ‘when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.’
[24]R v Creed (1985) 37 SASR 566, 568 (King CJ).
[25]Mill v The Queen (1988) 166 CLR 59, 62-63 (Wilson, Deane, Toohey, Dawson and Gaudron JJ).
[26]D A Thomas, Principles of Sentencing: the sentencing policy of the Court of Appeal Criminal Division (Heinemann, 2nd ed, 1979), 56-57.
The principle has a wider application than the case specified in the passage quoted above. Thomas points out:
The principle applies to all situations in which an offender may become subject to more than one sentence: where sentences are passed on different counts in an indictment or on different indictments, where the offender is subject to a suspended sentence or probation order, where he is already serving a sentence of imprisonment or makes appearances in different courts within a short space of time. In all such cases ‘the final duty of the sentencer is to make sure that the totality of the consecutive sentences is not excessive’.[27]
[27]Ibid 57.
The courts have for these reasons shown an aversion to the imposition of crushing sentences except when these are either required by statute or are, in exceptional circumstances, otherwise plainly justified. There could in my opinion be no justification for imposing a crushing sentence if the only warrant for it was the notion that where an offender has committed an offence which carries a minimum sentence, that minimum must be cumulated in full upon all other sentences imposed at the same time.
Yet the imposition upon this offender of a total effective sentence of more than 11 years and six months’ imprisonment would in my opinion offend the principle of totality. At the least, it cannot in my view be said (to quote from ground 3) that the sentencing judge ‘erred in failing to provide for any cumulation of the sentence imposed on charge 4 upon the sentence imposed on charge 2’, or that his Honour erred in that each of the individual sentences imposed, the orders made in cumulating those sentences and the period fixed as the single non-parole period resulted in an overall sentence which is manifestly inadequate.
Regarded in this light, I can perceive no error in the approach of the sentencing judge. In my opinion, grounds 3 and 4 must also fail.
I would for these reasons dismiss the appeal.
PRIEST JA:
I agree.
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