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.
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]
[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.
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AGLC
Jopar v The Queen [2013] VSCA 83
Case
[2013] VSCA 83
Decision Date
CaseChat Overview and Summary
The matter before the court was an application by the appellant, Jopar, for an extension of time in which to file a notice of appeal against his sentence. Jopar, who had pleaded guilty to one count of people smuggling under section 233A of the Migration Act 1958 (Cth), sought to appeal the sentence of 633 days' imprisonment, of which he had served nine months. The application was made outside the statutorily mandated time limit, and the central issues were whether there was merit in the proposed grounds for appeal and whether the sentencing judge had erred in treating current sentencing practices as precluding a non-custodial sentence, or whether the sentence was manifestly excessive.
The court examined the grounds for appeal, which included the sentencing judge's treatment of current sentencing practices, the imposition of a 'time served' condition, and the importance of general deterrence in people smuggling cases. The court noted that an immediate custodial sentence was not an inevitable result of a finding of guilt for the offence. However, the court found that the explanation for the delay was unsatisfactory, and the proposed grounds for appeal lacked merit. The court highlighted the need for clear and timely explanations when seeking extensions of time to appeal.
The application for an extension of time was ultimately refused. The court concluded that the applicant had not provided a satisfactory explanation for the delay and that the proposed grounds for appeal were without merit. The court emphasised the importance of adhering to statutory time limits and the need for cogent reasons to justify any deviation. The refusal of the application meant that the original sentence stood, and the appellant's opportunity to appeal the sentence was not extended.