Jopar v The Queen
[2013] VSCA 83
•19 April 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0242
| JOPAR | 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 83 |
| JUDGMENT APPEALED FROM | DPP (Cth) v Jopar & Anor (Unreported, County Court of Victoria, Judge Gaynor, 18 September 2012) |
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CRIMINAL LAW — Application for an extension of time in which to file notice of appeal against sentence — Appellant 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 40 passengers with no lawful right to come to Australia — Low-level offender — Applicant sentenced to 633 days’ imprisonment to be released upon recognizance release order after serving nine months’ imprisonment — Deliberate decision to file notice of appeal outside of statutorily mandated time limit — Whether any merit in proposed grounds — Whether sentencing judge erroneously treated current sentencing practices for this offence as precluding a non-custodial sentence — Whether sentence manifestly excessive — Whether sentencing judge erred by imposing ‘time served’ — Importance of general deterrence in cases of people smuggling — Immediate custodial sentence not an inevitable result of a finding of guilt for offence under s 233A of the Migration Act — Observations as to paucity of effective sentencing options — Unsatisfactory explanation for delay — Application for extension of time refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T R Marsh | 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 this application for an extension of time within which to file a notice of application for leave to appeal should be refused.
The offence of ‘people smuggling’ under s 233A(1) of the Migration Act 1958 (Cth) carries a maximum penalty of ten years’ imprisonment. That is a substantial term, and represents a ‘yardstick’ by which the gravity of the offence may be measured.[1] Moreover the authorities make clear that the offence must be viewed seriously. Plainly, general deterrence is an important factor in sentencing those found to have engaged in people smuggling.
[1]Markarian v The Queen (2005) 228 CLR 357, 372 (Gleeson CJ, Gummow, Hayne and Callinan JJ).
This point has long been recognised. In R v Feng Lin,[2] the New South Wales Court of Criminal Appeal dealt with an appeal against sentence by an offender who had been convicted on one count under s 233(1)(a) of the Migration Act 1958 (Cth), as then in force. That section was the legislative precursor to s 233A(1),[3] and the offence carried the same maximum penalty as does the offence under the current provision.[4]
[2](2001) 119 A Crim R 194 (‘Feng Lin’).
[3]See Karim v The Queen [2013] NSWCCA 23, [15] (Allsop P).
[4]Importantly, no mandatory term of imprisonment was applicable.
Mason P, who would have dismissed the appeal, spoke of the ‘need for deterrent penalties’ given the ‘difficulties of detection and the exposure of Australia through its vast coastline’.[5] While his Honour was in dissent as to the result, Carruthers AJ, with whom Hidden J agreed, also spoke of the need for a ‘strong deterrent element in the sentence’.[6]
[5]Feng Lin (2001) 119 A Crim R 194, 195.
[6]Ibid 203.
Similar comments had earlier been made by McKechnie J in the Supreme Court of Western Australia in Ilam v Dando,[7] when, having allowed various appeals against sentence, his Honour resentenced the appellants for people smuggling offences which had previously been dealt with by a magistrate. His Honour said:
The introduction of illegal immigrants into Australia threatens this country’s national security in many ways. It is a growing problem which requires Australia to take the necessary steps to protect itself. It is the nature of this nefarious trade in human cargo that persons such as the appellants will often be recruited from among the poorer peoples of the region to supply the necessary transport and to take all the risks.
Notwithstanding their comparatively low level in the criminal hierarchy, nevertheless the appellants performed a pivotal role in the scheme and were vital to its success. It is necessary for courts to deal strongly with the appellants and those like them for the purpose of deterrence to others.[8]
[7](1999) 109 A Crim R 47.
[8]Ibid 49. See also R v Nursia (Unreported, Supreme Court of the Northern Territory, Bailey J, 12 January 2000) where, dealing with offenders convicted of offences against s 233(1)(a), Bailey J said: ‘general deterrence must play an important role in determining appropriate sentences in the present circumstances. A clear message must be sent to those who are minded to engage in bringing non-citizens to this country that they can expect to face a very substantial penalty’.
More recently, in R v Karabi,[9] the Queensland Court of Appeal had this to say regarding the offence of aggravated people smuggling under s 233C:
The role of general deterrence in cases of this kind cannot be doubted. People trafficking: threatens the orderly administration of immigration laws; imposes a financial burden on the Australian public; necessitates the deployment of military, customs and other governmental resources; encourages official corruption in other nations and exploits and imperils the health and lives of those carried, or attempted to be carried, into Australia.[10]
[9][2012] QCA 47.
[10]Ibid [21] (Muir JA, with whom Fraser and Chesterman JJA agreed).
While that comment was directed specifically towards the aggravated form of the offence which carries a maximum of 20 years’ imprisonment, and a mandatory minimum term of five years’ imprisonment with a non-parole period of three years,[11] the view that general deterrence is important in cases of people smuggling seems to me to be applicable as well to the lesser offence under s 233A(1).
[11]Migration Act 1958 (Cth) s 236B(3)-(4).
As a practical matter, offences against the people smuggling provisions of the Migration Act will generally involve the bringing to this country of at least five people, thereby triggering the operation of the more serious version of the offence under s 233C. It might be thought that the risks inherent in people smuggling will only be taken where the financial reward makes that activity worthwhile. It would be improbable, in ordinary circumstances, that anyone contemplating the organisation of a people smuggling operation would undertake those risks where fewer than five people are paying for their passage. This perhaps explains why the vast majority of cases that have been dealt with by appellate courts regarding the people smuggling provisions concern the aggravated form of the offence.
That takes me to my next point. Most of those charged with ‘people smuggling’ are impoverished villagers from developing nations whose role in the enterprise may be significant, but who are nonetheless at the lowest level of the hierarchy of those involved. Given their background, and the virtual certainty that they will be deported from this country as soon as practicable after they have been dealt with, it is difficult to see how any judge can give effect to the need for deterrence without imposing an immediate custodial sentence.
Clearly, for an offender such as the applicant, the range of non-custodial sentences available under the Crimes Act 1914 (Cth) is extremely limited. Given his impecuniosity, it would be utterly pointless to impose a fine. So too would be his release upon a bond. Any such disposition would lack deterrent value and could not, as a practical matter, be enforced.
Even a notional term of imprisonment, such as one involving a ‘recognizance release order’ enabling the offender to be released forthwith,[12] would seem to have little or no deterrent effect. The likelihood is that an offender dealt with in that way would be removed from this country at once, making the requirement that he enter into a recognisance seem futile. Much the same can be said of a recognizance release order that enables the offender to be released after serving a specified term of imprisonment. No doubt, the component of that sentence that involves imprisonment has deterrent value. However, the conditions legislatively identified by s 20(1)(b) as being potentially available to be imposed are again likely to be pointless. No doubt, when the legislature mandated the making of a recognizance release order in respect of any sentence that did not exceed three years,[13] it did not anticipate the difficulties that might arise in the case of people smuggling.
[12]Crimes Act 1914 (Cth) s 20(1)(b).
[13]Ibid s 19AC(1).
The fact is that the sentencing regime available in respect of Commonwealth offences is entirely ill-suited to dealing with offenders such as the applicant. It is perfectly obvious that such offenders will be deported as soon as they have served whatever term of imprisonment may have been fixed. It makes no sense to attach to any sentence imposed upon an offender of that kind any condition that would require him to be maintained in this country at taxpayers’ expense. There is no reason why he should be kept here one moment longer than necessary just so that he can remain under supervision to ensure that he is of good behaviour.
It goes without saying that the financial conditions available under s 20(1)(b) in relation to recognizance release orders, such as making reparation or restitution in respect of the offence committed,[14] are not applicable to persons such as the applicant. Nor could one contemplate making an order that he pay any costs associated with his prosecution for that offence.
[14]Ibid s 20(1)(a)(ii).
The truth is that those who crew the boats used in people smuggling come to this country for one reason. That is to deposit their human cargo and to collect whatever pittance they have been promised. They expect to be returned home at the earliest opportunity. Subject to their being adequately punished, their expectations should not be thwarted.
Because there are so few sentencing options that can realistically be invoked by sentencing judges when dealing with offenders such as the applicant, the task of sentencing them is particularly difficult. On the one hand, the law requires that any sentence be ‘of a severity appropriate in all the circumstances of the offence’.[15] That suggests that any sentence must be proportionate to the gravity of the offending. If, however, there are no realistic sentencing options available, apart from immediate imprisonment, the judge is put in an invidious position. It may be that nothing other than such a term of imprisonment can ever have sufficient deterrent effect. To that extent, sentencing in this area may involve constraints that are not present elsewhere.
[15]Ibid s 16A(1).
I should nonetheless make it clear that, in my view, it is quite wrong to say in absolute terms that an offender dealt with under s 233A(1) must be sentenced to a term of actual imprisonment. The very fact that the legislature has allowed for a fine to be imposed for an offence under that section, as an alternative to imprisonment, makes that obvious. It may be that, in a particular case, a combination of mitigating factors, which might, hypothetically, include youth, possible Verdins considerations,[16] and perhaps a willingness on the part of the offender to give evidence against others,[17] could justify a non-custodial disposition. That would be so despite the practical difficulties associated with such an outcome.
[16]R v Verdins (2007) 16 VR 269.
[17]Calling for a significant discount under s 21E of the Crimes Act 1914 (Cth). Where an offender is to give evidence against others, and is therefore required to remain in this country for a time, a non-custodial disposition might be perfectly appropriate. So, for example, a bond, or perhaps a community correction order, could be made in such a case
Before this Court, Ms Abraham QC, who appeared on behalf of the Director of Public Prosecutions, sensibly eschewed any submission to the effect that a non-custodial sentence could never be imposed for the offence of ‘people smuggling’. She did, however, submit that such a course would only be justified in exceptional circumstances.
In my opinion, it will ordinarily be necessary, in a case such as the present, to impose an actual custodial term. Without making too much of the point, people smuggling is a serious matter, and must be dealt with as such. General deterrence is important, and cannot realistically be achieved without at least some measure of imprisonment.
That is true of both the aggravated form of people smuggling under s 233C(1), and the lesser form under s 233A(1). Given the circumstances that normally surround offenders who are charged in such cases, it will ordinarily be necessary to imprison them, rather than to consider some form of inapt non-custodial disposition. That should not, however, be viewed as an absolute rule.
If it be thought that this approach to sentencing for ‘people smuggling’ imposes an unwarranted constraint upon the sentencing discretion, my answer is that there is nothing novel about it.
For example, in DPP v Fevaleaki,[18] Redlich JA (with whom Callaway JA and Coldrey AJA agreed) said, albeit in a very different context:
A sentence which does not require an offender to serve an immediate custodial term of imprisonment for the offence of intentionally causing serious injury will not necessarily be manifestly inadequate. The serious nature of this offence will ordinarily call for an immediate custodial sentence but the imposition of a different sentence is not necessarily indicative of sentencing error.[19]
[18](2006) 165 A Crim R 524. See also Winch v The Queen (2010) 27 VR 658, 669 [53] (Maxwell P and Redlich JA).
[19]Fevaleaki (2006) 165 A Crim R 524, 529 [20] (emphasis added).
Although Redlich JA was there dealing with the offence of intentionally causing serious injury, his Honour was concerned to give appropriate weight to the importance of general deterrence. The same consideration applies to offences against s 233A(1). That is not my opinion alone. It has been stated time and again by various appellate courts.
A similar approach has been taken by this Court in relation to other offences. In R v Winch,[20] for example, Maxwell P and Redlich JA observed in relation to ‘glassing’ cases that a suspended term of imprisonment ‘will not ordinarily be an available sentencing option’.[21] In other words, in cases of that kind, nothing less than an immediate custodial term will ordinarily be warranted.
[20](2010) 27 VR 658 (‘Winch’).
[21]Ibid 669 [53].
Winch was cited with approval in Hogarth v The Queen.[22] There, it was noted that the offence of aggravated burglary, constituted by home invasion (often by multiple offenders), should, ordinarily, result in a significantly heavier term of imprisonment than would be suggested by then existing current sentencing practices.[23]
[22][2012] VSCA 302.
[23]Ibid [58]-[63] (Maxwell P, Neave JA and Coghlan AJA).
In my opinion, the offence of ‘people smuggling’ under s 233A(1) should be approached in the following manner. Ordinarily, the only possible disposition in such cases will be a term of imprisonment. The length of any such term is of course a different matter. That will depend upon the particular circumstances of the case. Each case will be different. I would not foreclose the possibility that a relatively short term of imprisonment might, in any given case, be regarded as adequate to meet all relevant sentencing considerations. That includes general deterrence.
There are several other matters to which I wish to refer. It seems that in this case, as in many others of its type, the judge was content to deal with the applicant on the basis that he should be sentenced to a term of imprisonment equal to ‘time served’. Clearly, it was on that basis that her Honour imposed a sentence of 633 days (it being erroneously thought that the applicant had been in detention and custody for precisely that period).[24]
[24]The applicant had in fact been in custody for 663 days.
Strictly speaking, it is incorrect to approach the sentencing task in that way. A judge is required to impose an appropriate sentence, having regard to all the circumstances of the case. This will include a consideration of current sentencing practices, even in the case of Commonwealth offenders. That is so not because such sentencing practices are legislatively mandated to be considered in the case of Commonwealth sentencing,[25] but rather to ensure equal treatment, so far as practicable, for all Commonwealth offenders.
[25]Cf Sentencing Act 1991 s 5(2)(b).
I can readily understand why, in a case such as this, a judge might be tempted to take a common sense approach, and simply fix ‘time served’ as the appropriate period of imprisonment. In effect, that operates to ‘clear the slate’. Trial judges are often under a good deal of pressure, and where it is clear that the accused has already been in custody for longer than any term of imprisonment that might be reasonable, the easiest course may be to fix ‘time served’.
Her Honour was, of course, well aware of the fact that the applicant was certain to be deported, probably within days of being sentenced. ‘Time served’ must have seemed the quickest, and easiest, way of disposing of this matter.
Her Honour would also have understood that from the applicant’s perspective, it was unlikely to matter whether he received a relatively short term of imprisonment, or one that was somewhat longer. The main thing was that he would be sentenced to a term no greater than ‘time served’. The practical result would be the same: he would simply be deported.
Although as a matter of high principle her Honour ought to have given consideration to precisely what period of imprisonment the applicant’s offending warranted, and not simply fixed ‘time served’, I am reluctant to criticise her for approaching the matter in the way that she did. Many judges have acted as her Honour did in this case in the past. Many more will do the same in the future. This Court has itself adopted that same approach when required to resentence an offender whose appeal has succeeded. As recently as several weeks ago, in Pantazis v The Queen,[26] the Court substituted a custodial term equivalent to ‘time served’ for the sentence originally imposed.
[26][2013] VSCA 59. See also Lord v The Queen [2013] VSCA 80.
The next matter I wish to comment upon concerns the applicant’s deliberate decision to file his application for leave to appeal out of time. I respectfully agree with what Priest JA has written about that matter. However understandable it may be, from the applicant’s perspective, for him to have adopted that course, the fact remains that he made an informed choice, on legal advice, not to comply with the time limits stipulated by the Criminal Procedure Act 2009 (‘the CPA’). That choice must have consequences. Time limits are not optional. They are not advisory. They are not there to be complied with only when an applicant decides that it is in his interests to do so.
The applicant’s decision to ignore the requirements laid down by the CPA makes his situation before this Court analogous, in some respects, to that which confronted the Full Federal Court in Schoenmakers v Director of Public Prosecutions.[27] There, the appellant, who was appealing against an order for his extradition to the United States, failed to appear at the appeal, in breach of his bail. As in this case, the Court’s capacity to exercise to the full its powers on appeal was thereby frustrated.
[27](1991) 30 FCR 488 (‘Schoenmakers’).
The Court in Schoenmakers considered that the appellant’s failure to meet his bail was a most serious matter. It went on to say that his conduct ‘should be visited with a penalty in relation to [the appeal],’[28] and made a self-executing order dismissing the appeal unless the appellant appeared before a Judge of the Court within one week. He, of course, did not do so.
[28]Ibid 489.
In so ordering, the Court did not invoke O 20 r 2 of the Federal Court Rules 1979 (Cth) allowing for a proceeding to be stayed or dismissed as an abuse of process. It simply stated, albeit somewhat cryptically:
It is the opinion of the Court that a sufficiently serious breach of an interlocutory order may enliven the Court’s jurisdiction, as a matter of implied incidental power, to dismiss the principal proceedings.[29]
[29]Ibid.
The present case is, of course, different in many respects from Schoenmakers. Nonetheless, the fact remains that the applicant deliberately chose to disregard the time limits set down in the CPA. Given that he seeks an indulgence from this Court in the form of an exercise of discretion in his favour, his conduct is an important factor to be considered.
There are two final matters to note. First, the applicant was initially charged with ‘aggravated’ people smuggling contrary to s 233C(1) of the Migration Act. As previously indicated, that offence not only carries a significantly higher maximum penalty of 20 years’ imprisonment, but also attracts a mandatory minimum term of five years’ imprisonment with a non-parole period of three years.[30]
[30]Migration Act 1958 (Cth) s 236B(3)-(4).
No doubt after some negotiation, the applicant was ultimately charged with the lesser offence under s 233A(1). It should be remembered, however, that the boat on which he was travelling was carrying 40 passengers when it was intercepted. None of them had visas permitting them to enter Australia. These facts potentially exposed the applicant to criminal liability under s 233C(1) with its quite draconian consequences. Sensibly, and very properly, the prosecuting authorities acted with genuine compassion in this case. They permitted the applicant to plead guilty to the lesser offence. However, that exercise of prosecutorial discretion did not diminish the objective seriousness of what he did.
Lastly, there seems to me to have been something almost surreal about this entire proceeding. The Court, in this matter, is exercising federal jurisdiction. It cannot, and will not, at least in the exercise of that jurisdiction, give what amounts to an advisory opinion.
The applicant has served each and every day of the term of imprisonment imposed upon him. He has gone back to Indonesia, almost certainly never to be seen again in this country. It was submitted, on his behalf, that a reduction in the term of
imprisonment imposed below might, at least theoretically, be of some tangible benefit to him in years to come. It was said, for example, that a lesser term of imprisonment might prove to be easier to explain, in the event that he sought to travel to some other country, than the sentence actually imposed in this case. In my opinion, it is difficult to see how that submission can be seriously maintained. It is wholly speculative, and seems to me to have about it almost a measure of artifice.
In truth, this is a case about how, at a general level, the offence of ‘people smuggling’, contrary to s 233A(1), should be viewed by sentencing judges. I understand the utility of providing some guidance on that issue, and also of correcting any error that might have crept into the sentencing process for that offence. At the same time, it should not for one moment be thought that this Court is oblivious to the true purpose for which this application has been brought.
HARPER JA:
The issues raised in this appeal, including how, at a general level, the offence of ‘people smuggling’ contrary to s 233A(1) of the Migration Act 1958 should be viewed by the courts, have been analysed in the judgments of Weinberg and Priest JJA, each of which I have had the benefit of reading in draft and with each of which I am in general agreement. I therefore join with my colleagues in concluding that the present application for an extension of time within which to file a notice of appeal should be refused.
Much has been said and written, in both the political and the judicial spheres, about the vexed problem of people smuggling. It is an offence with many victims. First among these are the men, women and children who have been exploited by the smugglers, often having earlier been victims of inhumane treatment well before boarding the vessels which they hope will bring them alive to Australia. In another category, a category the interests of which every Australian government is bound to
uphold, is the Australian public. Allsop P referred to both categories in his judgment in Karim v The Queen; Magaming v The Queen; Bin Lahaiya v The Queen; Bayu v The Queen; Alomalu v The Queen:
In light of some of the later discussion in these reasons …, it is appropriate to say that the smuggling of people illicitly into Australia (whatever may well be the justness of claims of such people for protection by Australia) is potentially productive of great suffering. The people smuggled are at risk of great danger on both land and sea journeys; they, by necessity, associate with organised criminal gangs, sometimes at great financial cost, which, it might be thought, can only often be afforded by many people by ancillary participation in darker forms of human trafficking. The deterrence of the illicit trade in smuggling people can be seen as both a legitimate and important public policy of the Australian Parliament.[31]
[31][2013] NSWCCA 23, [31].
It is in this context that it is commonplace to say that general deterrence is an important factor, one which a court must take into account when sentencing for an offence against s 233A of the Migration Act. But, equally, it must be tempered by other sentencing principles with a legitimate place in the process of instinctive synthesis which occurs in any particular sentencing exercise. For one thing, the imposition of punishment on one person by reference to the hypothetical crime of another sits uneasily with the humanitarian principle that a punishment imposed upon an offender should be directly linked to the offence. More importantly:
Deterrence must give way to proportion. Deterring unknown future potential offenders from committing a like offence is not a sufficient reason for imposing a disproportionately harsher sentence than the particular offence requires. …
It is one thing to subscribe to the common belief that the sanctions threatened by the legal system achieve some general deterrent effect, and another to enhance the punishment beyond the needs of the particular case in the hope of producing some larger sustained reduction in the rate of the rest of the [potentially offending international] populous when there is minimal evidence that this will occur and when the courts make no effort to assess the efficacy of this crime prevention policy.[32]
[32]Richard Fox & Arie Freiberg, Sentencing: State and Federal Law in Victoria (Oxford University Press, 2nd ed, 1999) 3.406-3.407.
The degree of criminality of some who are guilty of an offence against s 233A
of the Migration Act may be small. Desperately poor citizens of developing countries, with little or no knowledge of the true purpose of a voyage which they agree to join as crew, and with little or no ability to extract themselves when fully informed of that purpose, will not necessarily be appropriate instruments for a demonstration of the importance of general deterrence in combating the evils of the people smuggling trade.
For this reason, and those given by Weinberg JA in his judgment, I agree with his Honour in not foreclosing the possibility that a relatively short term of imprisonment might, in any given case, be regarded as adequate to meet all relevant sentencing considerations, including general deterrence.
PRIEST JA:
Introduction
For reasons that follow, I would refuse this application for an extension of time.
Procedural history
Following a plea of guilty by the applicant to one count of ‘people smuggling’ under s 233A of the Migration Act 1958 (Cth), on 18 September 2012 a judge in the County Court at Melbourne sentenced the applicant to be imprisoned for 633 days, to be released after serving nine (9) months of such sentence on a recognizance release order in the sum of $500, with a promise to be of good behaviour for 12 months.
An application for an extension of time in which to appeal against the sentence was filed on 24 October 2012.
On 13 November 2012 the Registrar refused the application an extension of
time in which to file a notice of application for leave to appeal.
Pursuant to s 313(2) of the Criminal Procedure Act 2009 (‘CPA’) and r 2.23(3)(b) of the Supreme Court (Criminal Procedure) Rules 2008 (‘Rules’), by an election signed by a Victoria Legal Aid (‘VLA’) lawyer, Alison Elizabeth Norton, and endorsed, ‘Signed on in (sic.) accordance with his authority document which is attached’[33], the applicant has purportedly elected to have the application considered by this Court.[34]
[33]The document attached bears a signature above the word ‘Jopar’ which itself is immediately above the date, 21 September 2012. There is an apparent certification signed by ‘Lyndal Meehan (NAATI ID. 37323)’ – ‘I certify that this document was translated from English to Bahasa and read to Jopar prior to him signing it’. Immediately above the signature, the document reads:
‘I, Jopar, instruct Victoria Legal Aid to commence appeal proceedings against the sentence imposed by Judge Gaynor on 18 September 2012 on the basis that the penalty imposed on me was manifestly excessive.’
[34]For the purposes of the application I am prepared to assume, without deciding, that the ‘authority’ document is sufficient to authorise the application.
Statutory regime
Before discussing the merits of the application, it is necessary to refer to the relevant statutory regime, and the principles which guide the Court in considering such an application.
Applications for leave to appeal against conviction or against sentence are commenced by filing a notice of application for leave to appeal in accordance with the rules of court within 28 days after the day on which the person is sentenced (or any extension of that period granted under s 313).[35] Time for giving such notice may be extended by the Court of Appeal or the Registrar of Criminal Appeals.[36]
[35]CPA, ss 275 and 279.
[36]CPA, s 313(1).
A notice of application for extension of time must be filed together with the notice of appeal or notice of application for leave to appeal.[37] An application for extension of time must be made in the first instance to the Registrar of Criminal Appeals, not the Court.[38] If the application is refused by the Registrar, the appellant may elect to have the application determined by the Court of Appeal.[39]
[37]Rules, r 2.22.
[38]Rules, r 2.23.
[39]Rules, r 2.23(3)(b).
Section 313 sets no fetters on the exercise of the power to extend time, but there are several general considerations which are relevant to its exercise.
Principles applicable
An application for extension of time will not be granted as a matter of course.[40] The individual circumstances of the applicant and the application are relevant. Guiding principles were discussed by the Full Court in O’Keefe:[41]
[40]R v Varney [1964] VR 143.
[41]R v O'Keefe [1979] VR 1, 5 (McInerney, Menhennitt and McGarvie JJ).
The principles which govern an application for extension of time for appealing are conveniently stated by Gowans, J in delivering the judgment of the Full Court in R v John Edward Darby, (unreported, 2 May 1975) as follows:-
(1) the prescription by the statute of the time limit for giving notice is intended to secure finality and compliance is intended to be required in the ordinary case;
(2) extension of the time is a matter for the discretion of the Court, and the applicant must put material and considerations before the Court which will persuade it to exercise its discretion in favour of an extension;
(3) rigid restrictions cannot be imposed on the exercise of discretion but in general the Court will require special and substantial reasons for extending the time;
(4) the longer the time which elapses since the expiration of the statutory period and the more the changes that have taken place in the meantime, the more exceptional will the circumstances put before the Court have to be;
(5) it is the practice of the Court not to grant any considerable extension of time unless it is satisfied that there are such merits in the proposed appeal that it would probably succeed;
(6)a reasonably satisfactory account of the failure to comply with the statutory requirement needs to be forthcoming.
In Sleedon[42] it was said that, in particular, regard will be had:
[T]o the delay, any relevant events which had taken place during it and whether there are such merits in the proposed appeal that it would probably succeed and whether a reasonably satisfactory explanation for the failure to comply with the statutory requirements has been forthcoming.
[42]R v Sleedon (unreported, Vic CCA, 11 June 1992); see also R v Foster (unreported, Vic CCA, 25 October 1993); R v Rickard [1999] VSCA 64; R v Craker [1999] VSCA 63; R v Pitt [2001] VSCA 67; R v Grech [2001] VSCA 192; R v McMahon [2001] VSCA 241; R v Davis (2003) 6 VR 538; R v RTG [2004] VSCA 89; R v Croft [2008] VSCA 61.
Having been sentenced on 18 September 2012, compliance with the statutory regime required a notice of application for leave to appeal to be filed by 16 October 2012. Application to file out of time was not made, however, until 24 October 2012. On one view, the delay is thus relatively minor, being a mere eight (8) days. And significantly, although the respondent opposed the application, Senior Counsel for the respondent, Ms Abrahams QC, conceded that the mere fact of delay had occasioned the respondent no prejudice.
Time limits exist, however, for sound reasons, one of which is the desirability – consistently with the interests of justice, including the imperative of correcting possible miscarriages of justice – of achieving finality in criminal proceedings with reasonable expedition.
Scrutiny is thus invited of the reasons for the delay and the merits of the proposed appeal. These two considerations are not necessarily in equipoise. Where the merits of the proposed appeal are very poor, even a satisfactory explanation for the delay might not justify an extension. On the other hand, where the merits of the putative appeal are very good, but the explanation for the delay is poor, the Court may incline towards granting an extension. The discretion reposed in the Court must be exercised according to the individual facts of each case.
As will appear, in my opinion the reasons for the delay are highly unsatisfactory, and the merits of the putative appeal are poor.
The delay and reasons for the delay
In considering this application it is necessary to bear in mind some key dates and events:
26 November 2010: The applicant is intercepted by the Royal Australian Navy and is held in Immigration Detention on Christmas Island pursuant to a Criminal justice Visa.
2 June 2011: A charge of aggravated people smuggling under s 233C of the Migration Act 1958 (Cth) is laid and the applicant is transferred to Melbourne and held in the Metropolitan Remand Centre.
7 September 2012: The applicant gives an indication that he will plead guilty to an offence under s 233A of the Act.
18 September 2012: A plea of guilty to a single count under s 233A is entered and the applicant is sentenced by a County Court judge to be imprisoned for 633 days, to be released on recognizance after serving nine (9) months.
21 September 2012: An authority document signed by the applicant giving VLA instructions to appeal the sentence on the basis that it is manifestly excessive.
16 October 2012: The date by which notice of application for leave to appeal is required to be filed.
18 October 2012: The applicant is deported from Australia.
24 October 2012: An application for extension of time is filed
The application for extension of time is dated 24 October 2012 and is signed by a VLA legal practitioner. There are seven reasons advanced for making the application:
1.The effect of the sentence that was imposed on me was that I was eligible for immediate release and therefore deportation to Indonesia as I am an unlawful non-citizen of Australia.
2.The timing of my deportation was beyond my control. Ultimately my deportation date was after the date on which my Application for leave to Appeal Against Sentence was required to be filed.
3.I was advised that there was a risk that the Australian Government could issue a Criminal Justice Visa to hold me in Australia while my appeal was heard. I would have been held in immigration detention during that time.
4.I have already been in detention for more than 630 days and could not risk further time in custody away from my family and my home.
5.I have signed instructions and authorities to allow my lawyers to proceed with this application on my behalf.
6.I am advised that the issues that my application raise may affect other people’s cases as well as my sentence.
7.I understand that the extension of time sought is for less than a week.
An affidavit in support of the application for extension of time, affirmed by a legal practitioner in the employ of VLA, Alison Elizabeth Norton, on 24 October 2012, was filed. She attests that she took instructions from the applicant at the Melbourne Immigration Transit Accommodation at Broadmeadows on 21 September 2012 to file an application for leave to appeal against sentence. Ms Norton also deposes:
9.The Applicant was advised that there was a risk he may be detained in Australia under a Criminal Justice Visa pending the hearing of his proposed appeal.[43] The Applicant was given an assurance that appeal papers would not be filed until he had been deported to Indonesia.
10.The Applicant signed authority documents prepared by my office to allow Victoria Legal Aid to make decisions on his behalf relating to his appeal.[44]
11.The precise date of the Applicant’s deportation was not known however it was expected to be approximately 1 week prior to the expiration of the appeal period.
12.The Applicant was in fact not deported until 2 days after the expiration of the appeal period being Thursday 18 October 2012.
It will thus be appreciated that the decision not to comply with the statutory time limit – no matter that the reason may have been thought by the applicant or his advisors to be proper – was deliberate rather than inadvertent.
[43]Despite the reference to a Criminal Justice Visa, any requirement for the applicant to remain in Australia would have been pursuant to a ‘criminal justice stay certificate’: ss 147 and 150 of the Migration Act 1958 (Cth).
[44]The authority apparently signed by Jopar on 21 September 2012 merely authorises VLA to ‘commence appeal proceedings’, and does not distinctly authorise any other action.
On the hearing of the application, the Court received a further affidavit on behalf of the applicant. It was affirmed by a VLA lawyer, Sarah Isobel Westwood, on 25 March 2013. Objection was taken by counsel for the respondent, on grounds of relevance, to several paragraphs.[45] The Court indicated that it would receive the affidavit subject to the objection. Since the impugned paragraphs relate to another putative application for leave to appeal by another person, in my opinion the objection was proper. I have not had regard to the paragraphs to which objection was taken. Of importance to the present application, however, Ms Westwood deposes:
[45]Paragraphs 13 to 18 inclusive.
6.Following sentence the Applicant was detained at the Melbourne Immigration Transit Accommodation (‘MITA’) facility at Broadmeadows pending his removal to Indonesia.
7.At MITA on 21 September 2012 instructions were taken from the Applicant by VLA solicitor Alison Norton to file an application for leave to appeal against his sentence.
8.Prior to taking instructions from the Applicant, I was asked by Alison Norton for advice as to the timing of the filing of his appeal papers.
9.I formed the view that there was a risk that if the application for leave to appeal sentence was filed in the Court of Appeal before the Applicant’s removal from Australia that the Commonwealth Director of Public Prosecutions (‘the CDPP’) would seek to delay the Applicant’s removal pending determination of the appeal.
10.In forming this view, I was aware that the Applicant was then subject to a Criminal Justice Certificate (‘CJC’) issued pursuant to s. 147 of the Migration Act. I was further aware that the CDPP was required to advise the Attorney General or her delegate whether cancellation of the CJC was a recommended course of action in all the circumstances.
11.The Applicant was advised on 21 September 2012 that there was a risk that he may be detained in Australia under the CJC pending the hearing of his proposed sentence appeal. The Applicant was given an assurance that his appeal papers would not be filed until he had returned to Indonesia.
12.The Applicant signed authority documents prepared by my office to allow VLA to make decisions on his behalf relating to his appeal.
Both the affidavit of Ms Norton and that of Ms Westwood make it plain that the decision not to comply with the statutory time limit was premeditated. Indeed, counsel for the applicant made it plain that the failure to comply was a deliberate choice of the applicant and his advisors. It was thought – probably with some justification – that if the applicant filed the application for leave to appeal in a timely manner he would remain in detention, and unable to return to his home, until his application was dealt with.
I do not doubt that the advice given to the applicant to delay filing his application for leave to appeal was well-intentioned. And I certainly do not doubt that, having been held in detention for 663 days, the applicant was keen to be released so as to return to his home and family. But the fact remains that, no matter how worthy the motives for so doing, the statutory time limit was deliberately flouted.
In my opinion, the Court should discountenance the kind of calculated disrespect for the dictates of the statutory regime that this application represents. The very strong flavour that permeated the submissions of counsel for the applicant was that there was no real harm in ignoring the time limit if it was for the greater good (at least, the greater good as seen through the eyes of the applicant’s advisors). Putting to one side whether it was ethical or wise to provide the advice that was given, the attitude underlying it, as exemplified by the submissions made to the Court, ignores a number of salient matters.
First, by departing the country, the applicant largely frustrated the possible exercise of a number of the Court’s powers. Once seized of an appeal against sentence, error having been shown, this Court is not required necessarily to reduce a sentence. Section 282 of the CPA makes it plain that, if it allows an appeal against sentence, the Court may ‘impose the sentence, whether more or less severe, that it considers appropriate’. Before this Court takes the course of imposing a more severe sentence, however, as a matter of fairness the Court invariably advises the applicant of the potential to increase the sentence, so as to provide an opportunity for the appeal to be abandoned. In a case like this, where the applicant has left Australia, although in theory the Court’s advice might be conveyed (albeit, it must be thought, with difficulty), as a practical reality any decision to increase a sentence would be frustrated – if not rendered futile – by the applicant’s absence from the jurisdiction. Although in theory an unsuccessful appellant might nonetheless be extradited to serve an increased sentence, at the very least the implementation of the Court’s orders would be made more difficult.
Secondly, pursuant to s 330(2) of the CPA, the Court may require the attendance of a party to an appeal at a hearing; and under s 330(5) the court ‘may issue a warrant to arrest the person if the court is satisfied that the person has had reasonable notice of the requirement to attend’. Any such requirement of the Court if made, and the issue of a warrant if the requirement to attend be ignored, are rendered somewhat difficult to enforce if an applicant has left the jurisdiction.
Thirdly, if an applicant is absent from the jurisdiction, the Court is left somewhat hamstrung in imposing a different sentence should an appeal succeed. In this case the judge imposed an order under s 20(1)(b) of the Crimes Act 1914 (Cth), allowing for the release of the applicant on a recognizance after service of nine (9) months of the sentence of imprisonment imposed. Were this Court on appeal to substitute a sentence of imprisonment upon which it fixed a non-parole period, or were a new recognizance release order made, ss 16F(1) and (2) of the Crimes Act 1914 (Cth) oblige the Court ‘to explain or cause to be explained to the [appellant], in language likely to be readily understood by the [appellant], the purpose and consequences’ of the fixing of the non-parole period or the making of the recognizance release order. Plainly the Court would not be in any position to satisfy its statutory obligation directly by explaining the orders to the appellant, and would have to cause others to do so.[46]
[46]See Beqiri v R [2013] VSCA 39, [68].
Additionally, were the Court to be of the view that the appropriate sentence on appeal was a discharge without conviction under s 19B of the Crimes Act 1914 (Cth), or a conditional release following conviction under s 20B, the Court would effectively be prevented from requiring the appellant to enter a recognizance under s 19B(1)(d) or s 20(1)(a) of the Act, or from explaining the order as required by s 19B(2) and s 20(2).
Moreover, were the appeal successful, there is absolutely no possibility of the Court adopting the option of imposing a community corrections order pursuant to s 20AB of the Act.[47] A Court could not obtain the necessary pre-sentence report;[48] seek direct consent to the order from the appellant;[49] impose an intensive compliance period;[50] impose some of the mandatory conditions of every such order;[51] or impose unpaid community work or other discretionary conditions.[52]
[47]See Reg. 6 of the Crimes Regulations 1990 (Cth) (as amended by Crimes Amendment Regulation 2012 (No.2) (SLI No 21 of 2012), Schedule 1).
[48]Sentencing Act 1991, s 8A.
[49]Sentencing Act 1991, s 37(c).
[50]Sentencing Act 1991, s 39.
[51]Sentencing Act 1991, s 45(1)(b) and (c), and s 46.
[52]Sentencing Act 1991, s 47.
No matter how worthy the motives might have been thought by some to have been, the fact remains that the decision not to file the application for leave to appeal was made in wilful defiance of the prescribed time limit. That, in my opinion, is sufficient reason for refusing the application for extension of time. Put another way, there are no ‘special and substantial reasons for extending the time’, and no ‘reasonably satisfactory account of the failure to comply with the statutory requirement [was] forthcoming’.
Merits of the proposed appeal
In any event, in my opinion the merits of the proposed appeal are not such as would justify extending time.
There are three proposed grounds of appeal:
1. The Learned Sentencing Judge erred in treating sentencing practices for this offence as precluding a non-custodial sentence for the Applicant.
2.The Learned Sentencing Judge erred by setting the Applicant’s term of imprisonment at a length equal to the time served by the Applicant in detention prior to sentencing and thereby:
(a)Gave predominant weight to an irrelevant factor; and
(b)Failed to perform the required task of arriving at the appropriate sentence through an instinctive synthesis of all relevant factors.
3.The sentence imposed was manifestly excessive.
The factual background and reasons for sentence
It is necessary to say something of the circumstances of the offence. They may be briefly described. On 26 November 2010, the Australian Navy intercepted a boat – subsequently described as SIEV[53] 214 – travelling from Indonesia towards Australia carrying 40 passengers of Iraqi, Iranian or Afghani origin and two Indonesian crewmembers, including the applicant. It seems that the owner of the boat had approached the applicant and offered him work in taking passengers to Kupang in exchange for payment of 500,000 rupiah (the equivalent of about $50 in Australian currency). The respondent accepts that, before departing Indonesia, the applicant had no knowledge that the boat was travelling to Australia. After two days at sea, a second boat approached and a people-smuggling organiser, ‘Mustafa’, boarded. He spoke to the passengers in their language, and to the crew in Indonesian, and explained that the boat would now follow a new course (to travel to Darwin). Several of the passengers observed the applicant steering the boat for a time. Mustafa had left the boat prior to its interception by the RAN. The applicant did not receive the money he had been promised.
[53]Suspected Illegal Entry Vessel.
After his interception, the applicant was detained in an Immigration Detention Centre in Darwin. Later he was transferred to Melbourne Remand Centre, he having been charged with ‘aggravated people smuggling’ under section 233C of the Migration Act 1958 (Cth).[54] Following an offer from the respondent of a charge of people smuggling under s 233A of the Act, rather than the aggravated offence under s 233C, on 4 September 2012 the applicant indicated a plea of guilty through his lawyers. At the time of sentence on 18 September 2012, the applicant had served 663 days in immigration detention or custody. He was deported from Australia on 18 October 2012.
[54]Conviction for this 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).
In her reasons for sentence, the County Court judge noted that the applicant was aged 39 years, having been born in Kuta, a village in Lombok. He eked out a subsistence income as a fisherman. The applicant previously was married and had one daughter, aged 15 years. After crops failed, the applicant decided to go to Sumba where he believed he could find work with the squid fishing fleet. He was apparently fresh off the ferry when he was approached by a people smuggler and was told that he would be paid $A50 to take people to Kepung. Once the boat was at sea the applicant was told that the destination was Australia. His role was essentially helping with steering and looking after the engine. The passengers described the applicant in very positive terms. He has no prior convictions, and simply hoped to return home to see his daughter and ‘to continue the hardworking yet difficult and poverty-stricken’ life he had been leading before becoming involved in the voyage to Australia. Of importance, her Honour found that the applicant began the voyage without knowing the destination was Australia, and accepted that he was ‘tricked into becoming crew to a people smuggling enterprise to Australia’. She also accepted that the applicant ‘did not discover the true destination until [he was] well underway’, and that ‘he had a viable defence to run, had [he] chosen to take that course’.
The sentencing judge noted that the applicant initially was charged under s 233C of the Migration Act, and that he had spent ‘extended time in custody, six months of it without charge, the rest of it fearing that [he] would face a mandatory minimum term of three years to serve’. Her Honour viewed the plea of guilty to the new charge laid under s 233A as an early one. She was satisfied that it was ‘poverty which led [him] to offend as [he] did’; and that he was a person ‘of good character who would be unlikely to offend again in the future’. The sentencing judge thought the applicant to have been ‘effectively exploited by the people smugglers … who left [him] on a boat to be apprehended by the Australian Navy, while they themselves, undoubtedly persons higher up the organisational chain, and making far more profit out of the entire business, took themselves off to ensure their fate was not the same as [his]’. Her Honour was satisfied that his position as a crew member meant that he ‘had nothing to do with any organisational failings relating to sufficient food, the presence of life jackets, the safety of passengers and so forth’. She accepted that the applicant was a pawn, and that his ‘suffering has been immense and protracted’.
The first proposed ground of appeal
Under cover of the first ground, counsel for the applicant seized upon the following passage from the sentencing judge’s reasons as betraying error; in that, so it was argued, the judge had unjustifiably fettered the exercise of her sentencing discretion:
It is quite clear from the authorities, that is decisions from the Courts of Appeal in New South Wales, Queensland, Northern Territory and Western Australia, that the only appropriate way that I, a County Court judge, should deal with you is by imposing a sentence of imprisonment to be immediately served. In my view, the imposition of such a disposition is an expression of the general deterrence that must accompany sentencing in cases such as this. Issues such as border control, the orderly conduct of migration into this country, the costs associated with intercepting illegal vessels containing asylum seekers are sufficiently grave that courts such as this are bound to sentence in a way that will send a message to others that it will not be to their benefit to behave in the same way.
This passage from the sentencing remarks cannot, however, be read in isolation. Her Honour went on to observe:
Madam Prosecutor outlined to me the statistics relating to sentencing in cases such as this and I am therefore persuaded that I should impose a head term approaching the head terms submitted by her to be appropriate. I am, therefore, going to sentence … you to a term of imprisonment of 633 days[55] or one year, nine months and 18 days.
[55]This appears to be a slip. The applicant had actually spent 663 days in custody. It seems that the genesis of this mistake was a submission of the prosecutor (T 6). Nothing, however, turns on this.
The allusion to statistics was, as I understand it, a reference to a folder of comparative sentencing cases supplied to her Honour by the prosecution to establish the ‘general principles’ applicable in cases of people smuggling. I need not here set out the cases. They were relied on to establish the general proposition that general deterrence is an importance factor in sentencing for people smuggling. So much cannot be gainsaid.
It is submitted, however, that the judge’s expressed view was that – irrespective of the facts and circumstances of the particular case before her – she had no option other than to imprison someone charged with an offence under s 233A of the Act. In my opinion, were that to have been her Honour’s view, then it would have been entirely wrong. If it were not already sufficiently plain, it needs to be made abundantly clear that a sentence of imprisonment is not an inevitable result of a finding of guilt for an offence under s 233A. Nothing in the applicable legislation, or in judicial pronouncements concerning people smuggling offences under s 233A, dictates that to be the case. Indeed, the provision for mandatory sentences in other sections of the Act points strongly in the opposite direction. It is one thing to say that general deterrence is an important factor to be taken into account in sentencing for this offence, but another thing entirely to say that imprisonment necessarily must follow from a finding of guilt.
On a fair reading of the sentencing judge’s reasons, in my opinion she did not fetter her discretion in the manner alleged. She was doing no more, in my view, than recognising that persuasive authority indicated that general deterrence was an important factor to be taken into account. It was not wrong of her to do so.
The first proposed ground of appeal is without merit.
The second and third proposed grounds of appeal
It is convenient to consider the second and third proposed grounds of appeal together.
The sentencing judge imposed a head sentence in this case which (so she thought) equated to the time that the applicant had actually spent in detention or custody up to the time of sentence. Hence she imposed a head sentence of 633 days, with a recognizance release order of nine (9) months. Her Honour had been told by the prosecutor that the applicant had been ‘in detention and custody for one year, nine months and 18 days … that is 633 days’. In fact, the correct calculation was 663 days. In the circumstances, this mere slip does not amount to an error that would require this Court’s intervention. The error cannot have worked to the applicant’s prejudice.
It is submitted, however, that by determining that the applicant should spend no more time in custody, and by fixing a sentence which (so it was thought) equated to the actual time spent in custody, the judge ‘gave predominant weight to an irrelevant factor’, ‘failed to perform the required task of arriving at the appropriate sentence through an instinctive sentencing process’, and thereby arrived at a sentence that was ‘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. General deterrence is an important aspect of sentencing for the offence of people smuggling. The history of the laws proscribing people smuggling was usefully discussed by Alsop P in Karim.[56] As the authorities make plain, for an offence such as this, general deterrence has a significant role to play. As Mason P remarked in Feng Lin:[57]
The objective seriousness of the offence is evident from its nature and the reasons underlying the 1999 amendments which increased the maximum penalty to ten years imprisonment or 1000 penalty units or both. Smuggling non-citizens into Australia presents obvious social problems to the fabric of Australian society; it undermines the attempted equities of an organised immigration and refugee system; it exposes the participants to exploitation and risk to health and life; and it imposes significant costs upon the Australian public. The need for deterrent penalties is manifest given the difficulties of detection and the exposure of Australia through its vast coastline. The extent of the problem has increased markedly in recent years, according to the Minister’s second reading speech ...
[56]Karim v R [2013] NSWCCA 23, [23]–[31].
[57]R v Feng Lin (2001) 119 A Crim R 194, 3–4 [3]. See also 199–200 [49]–[50] per Carruthers AJ.
Of course, although significant, general deterrence is but one of the many factors that a court must take into account when sentencing for people smuggling.[58] The court’s task is to impose a sentence ‘that is of a severity appropriate in all the circumstances of the offence’.[59] As I have said, it would be quite wrong to think that a sentence of imprisonment must always be imposed for an offence under s 233A. And concomitantly, it would be wrong to think that the imposition of a sentence of imprisonment which merely reflects the time already spent in custody, without any consideration being given to whether a sentence of imprisonment of equivalent length would be appropriate, is necessarily a proper exercise of the sentencing discretion. A sentencing judge is required to fix a sentence by having regard to all of the relevant circumstances.
[58]Crimes Act 1914 (Cth), s 16B(2).
[59]Crimes Act 1914 (Cth), s 16B(1).
Were it a fair interpretation of the sentencing judge’s reasons that she had merely fixed the term of imprisonment by reference to the time spent in custody, without having given distinct consideration to whether a sentence of equivalent length was proper in all of the circumstances of the case, then error would have been shown. On a fair reading of her reasons, however, it seems to me that having paid due regard to the circumstances of the case, and paying due regard to the need for general deterrence, her Honour arrived at the view that a head sentence approximating the time already spent in detention or custody was within the range of sentences properly open. She would have been buoyed by the prosecutor’s submission that ‘in terms of the range for general crew cases is between two to three years’ head sentence, with 12 months to two years to serve’.
Scrutinising all of the circumstances of the case, I cannot see that the sentencing judge took into account any irrelevant considerations, or that she failed instinctively to synthesise all relevant factors. By fixing a recognizance release order of nine (9) months, it is obvious that she gave distinct consideration to the length of time the applicant should have been required to spend in custody before conditional release. Rather than suggesting that the judge had a blinkered view of the sentencing task, the fixing of the minimum period that the applicant ought to have spent in custody before release demonstrates to my mind that her Honour paid due regard to appropriate principle.
I acknowledge that it would be wrong for a sentencing judge blindly and without discrimination merely to seize on the time already spent in custody, and impose a sentence of imprisonment equivalent to that period without giving distinct consideration as to whether that would represent an appropriate sentence when all relevant factors are taken into account. However, the Crown’s range for a head sentence was two to three years, and between 12 months and two years as a minimum term. The sentencing judge obviously thought the prosecution’s range to be too high (as is reflected particularly in the fixing of the minimum term), but that she ‘should impose a head term approximating the head term submitted’ by the prosecutor. Had her Honour fixed a head sentence of, say 20 months’, 21 months’ or 22 months’ imprisonment, I very much doubt that it realistically could have been argued (all other things being equal) that she had taken an irrelevant factor into account. The time already spent in custody was, in my view, within the range of sentence properly open in the circumstances. There would have been no particular virtue in her Honour ‘rounding down’ the head sentence to one year and nine months imprisonment, or ‘rounding up’ the sentence to one year and 10 months, any less than there was in intending to impose a sentence of imprisonment of one year, nine months and 18 days. All would have been within the range of those properly open.
There is no merit in the second and third grounds.
In light of some of the submissions made on the applicant’s behalf, I should add these further observations. The applicant, like so many others charged with people smuggling offences, was kept in some form of detention or custody from the time of his detection until the time of sentence. When he was finally charged, it was with the Aggravated offence of people smuggling under s 233C of the Migration Act, rather than the Offence of people smuggling under s 233A. Whether on the available evidence to charge him initially with the aggravated form of offence was a proper exercise of prosecutorial discretion can be put to one side for present purposes. Given that that the aggravated offence carries a substantial mandatory term of imprisonment, however, a charge for that offence is unlikely to result in an early resolution of such cases. A person in the position of the applicant, charged with an offence which carries a mandatory term of imprisonment, is unlikely to be enthusiastic about offering a plea of guilty to that offence, when another less draconian alternative is available. One factor that is common to these cases is that, even if a court grants bail, the existence of a criminal justice stay certificate usually means that the charged person remains in some form of detention. Thus, generally speaking, when the person falls to be sentenced they will have been in some form of detention or custody for the entire time since interception. In those circumstances, a sentencing judge may be tempted to adopt the understandable (and, to some minds, practical) expedient of merely sentencing a person to ‘time served’ without giving distinct consideration to whether a sentence of that order is appropriate. Principle dictates, however, that a sentencing court pass only such sentence that is appropriate in all of the circumstances of the case.[60] Sometimes that will mean passing a sentence of lesser severity than the time already served, and sometimes a greater sentence.
[60]See Crimes Act 1914 (Cth), ss 16A(1), 17A(1).
Conclusion
For the reasons discussed, the applicant has failed to persuade me that the extension of time should be granted.
I would refuse the application.
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