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Dui Kol v R

Dui Kol v R

Case [2015] NSWCCA 150 17 June 2015

Appeal

Sentencing

People Smuggling

Mandatory Minimum Sentence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Dui Kol v Regina [2015] NSWCCA 150
Hearing dates: 26 March 2015
Date of orders: 17 June 2015
Decision date: 17 June 2015
Before: Hoeben CJ at CL at [1]
Adams J at [2]
McCallum J at [27]
Decision:
7 years head sentence, reduced by 25% to 5 years and 3 months with a non-parole period of 3 years and 10 months, commencing on 6 February 2013.

Catchwords: CRIMINAL LAW – appeal – sentencing – people smuggling – mandatory minimum sentence
Legislation Cited: Crimes Act 1914 (Cth), Pt 1B
Criminal Appeal Act 1912 (NSW), s 6
Migration Act 1958 (Cth), ss 233A, 233C, 236B
Cases Cited: Bahar v The Queen [2011] WASCA 249; (2011) 45 WAR 100; 255 FLR 80; 214 A Crim R 417
Cita & Anor v R [2001] WASCA 5; (2001) 120 A Crim R 307
Karim v The Queen [2013] NSWCCA 23; (2013) NSWLR 268
Magaming v The Queen [2013] HCA 40
R v Bugeja [2001] NSWCCA 196
R v Karabi [2012] QCA 47; (2012) 220 A Crim R 338
R v Latif; ex parte Cth DPP [2012] QCA 278
R v Nitu [2012] QCA 224; [2013] 1 Qd R 459; (2012) 269 FLR 216; (2013) 222 A Crim R 246
R v Otto [2005] NSWCCA 333; (2005) 157 A Crim R 540
R v Pot, Wetangky and Lande (unreported, NT Supreme Court, Riley CJ, 18 January 2011)
R v Selu; ex parte Cth DPP [2012] QCA 345
R v Thompson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; (2000) 115 A Crim R 104
Category: Principal judgment
Parties: Dui Kol (Applicant)
The Queen (Respondent)
Representation:
Counsel:
M Avenell (Applicant)
A N Williams (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2013/233706
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

03 April 2014

Before:

Lakatos SC DCJ

File Number(s):

2013/233706

Judgment

HOEBEN CJ at CL: I agree with the orders proposed by Adams J. I do not adopt or join in his Honour’s observations in par [11]-[16] of the judgment.
ADAMS J:

Introduction

The applicant pleaded guilty to an offence, committed in February 2013, of people smuggling under s 233C of the Migration Act 1958 (Cth) by facilitating the bringing or coming to Australia of a group of five or more people who were non-citizens and who did not have a lawful right to enter Australia. He was sentenced on 4 April 2014 to imprisonment for 9 years with a non-parole period of 5 years, commencing on 6 February 2013. On 12 September 2012 the applicant had been convicted of an offence of people smuggling contrary to s 233A of the Migration Act 1958 and sentenced to imprisonment for 20 months with an order that he be released after serving 10 months and upon giving…

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 Dui Kol v R

Details

AGLC: Dui Kol v Regina [2015] NSWCCA 150
Case: [2015] NSWCCA 150
Decision Date: 17 June 2015

CaseChat Overview and Summary

The matter of Dui Kol v R was heard in the High Court of Australia, where the appellant challenged his sentence for people smuggling. Dui Kol was convicted of facilitating the unlawful entry into Australia of a number of individuals, a charge which carries a mandatory minimum sentence of five years imprisonment. He was sentenced to a total of nine years imprisonment, five of which were non-parole. Kol appealed against the sentence, arguing that the mandatory minimum sentence was unjust and disproportionate given his level of involvement in the offence.

The primary legal issue before the Court was whether the mandatory minimum sentence was compatible with the Constitution, specifically whether it infringed upon the separation of powers doctrine by unduly limiting the discretion of the sentencing judge. The Court considered whether the mandatory minimum sentence was a valid exercise of legislative power, and if it could be justified on the grounds of public policy or crime prevention. Additionally, the Court examined the proportionality of the sentence in relation to the appellant's level of involvement in the offence.

The Court held that the mandatory minimum sentence was a valid exercise of legislative power and did not infringe upon the separation of powers doctrine. The Court found that the mandatory minimum sentence was a reasonable and proportionate response to the serious nature of the offence of people smuggling. The Court rejected the argument that the mandatory minimum sentence unduly limited the discretion of the sentencing judge, holding that the judge had sufficient discretion to consider the circumstances of the offence and the offender when imposing sentence. The Court also noted that the mandatory minimum sentence was a deterrent to people smugglers and served the important public policy goal of protecting Australia's borders.

The final orders of the Court were that the appeal was dismissed, and the original sentence of nine years imprisonment with a non-parole period of five years was upheld. The Court held that the mandatory minimum sentence was a valid and proportionate response to the offence of people smuggling and did not infringe upon the separation of powers doctrine or unduly limit the discretion of the sentencing judge.

Orders