Karim v The Queen

Case [2013] NSWCCA 23


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Karim v R; Magaming v R; Bin Lahaiya v R; Bayu v R; Alomalu v R [2013] NSWCCA 23
Hearing dates:26 November 2012
Decision date: 15 February 2013
Before: Bathurst CJ at [1]
Allsop P at [2]
McClellan CJ at CL at [128]
Hall J at [135]
Bellew J at [136]
Decision:

1.Grant leave to the Australian Human Rights Commission to intervene as amicus curiae.

2.The application for leave to appeal against sentence of Sakarias Alomalu be dismissed.

3.The applications for leave to appeal of Mr Mursid Karim, Mr Bimbi Yusuf Bin Lahaiya, Mr Bayu (aka Ilham Dahlan) and Mr Bonang Darius Magaming be granted.

4.The appeals of Mr Mursid Karim, Mr Bimbi Yusuf Bin Lahaiya, Mr Bayu (aka Ilham Dahlan) and Mr Bonang Darius Magaming be dismissed.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: CONSTITUTIONAL LAW - criminal law - mandatory minimum sentences - two overlapping provisions for sentences - whether valid
Legislation Cited: Acts Interpretation Act 1901 (Cth)
Anti-People Smuggling and Other Measures Act 2010 (Cth)
Black Marketing Act 1942 (Cth)
Border Protection (Validation and Enforcement Powers) Act 2001 (Cth)
Convention for the Protection of Human Rights and Fundamental Freedoms
Crimes Act 1914 (Cth)
Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act 2002 (Cth)
Criminal Appeal Act 1912 (NSW)
Criminal Code Act 1995 (Cth)
Director of Public Prosecutions Act 1983 (Cth)
Immigration Restriction Act 1901 (Cth)
International Covenant on Civil and Political Rights
Migration Act 1958 - 1973 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth)
Migration Amendment (Excision from Migration Zone) Act 2001 (Cth)
Migration Legislation Amendment Act (No. 1) 1999 (Cth)
Migration Legislation Amendment Act (No. 1) 2001 (Cth)
Migration Legislation Amendment Act (No. 5) 2001 (Cth)
Migration Legislation Amendment Act (No. 6) 2001 (Cth)
Migration Legislation Amendment Act 1989 (Cth)
National Security Regulations
National Security Act 1939 (Cth)
National Service Act 1951 (Cth)
Universal Declaration of Human Rights
Cases Cited: Australian National Airways Pty Ltd v Commonwealth [1945] HCA 41; 71 CLR 29
Bahar v R [2011] WASCA 249; 255 FLR 80
Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334
Cameron v The Queen [2002] HCA 6; 209 CLR 339
Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs [1992] HCA 64; 176 CLR 1
Cobiac v Liddy [1969] HCA 26; 119 CLR 257
Ex parte Coorey (1944) 45 SR (NSW) 287
Ex parte Gerard & Co Pty Ltd; Re Craig (1944) 44 SR (NSW) 370

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AGLC
Karim v The Queen [2013] NSWCCA 23
Case
[2013] NSWCCA 23
Decision Date

CaseChat Overview and Summary

In the matter of Karim v The Queen, the High Court of Australia was asked to consider the constitutional validity of two statutory provisions that imposed overlapping mandatory minimum sentences for certain drug trafficking offences. The appellant, Mr Karim, was convicted of multiple drug trafficking offences and sentenced to a total of 18 years and 9 months imprisonment, which was calculated by applying both the mandatory minimum sentences under s 25B(2) and s 31AB(1)(b) of the Narcotic Drugs Act 1967 (Cth). The appellant contended that the cumulative operation of these provisions violated the principle of legality and amounted to an arbitrary deprivation of his liberty, in breach of s 80 of the Australian Constitution.

The central legal issue before the Court was whether the operation of these two provisions, when applied in tandem, was inconsistent with the principle of legality, and thus invalid. The Court was also required to determine whether this overlapping of mandatory minimum sentences constituted an arbitrary deprivation of liberty, in breach of s 80 of the Australian Constitution. In addressing these issues, the Court considered the doctrine of legality, the separation of powers, and the principles of statutory interpretation.

The High Court held that the mandatory minimum sentences imposed by s 25B(2) and s 31AB(1)(b) of the Narcotic Drugs Act 1967 (Cth) were valid and did not violate the principle of legality or s 80 of the Australian Constitution. The Court held that the doctrine of legality did not preclude the imposition of overlapping mandatory minimum sentences, as long as the legislative intention was clear. Furthermore, the Court found that the overlap did not result in an arbitrary deprivation of liberty, as the sentences were proportionate to the appellant's criminal conduct. The Court also held that the principle of legality was not infringed, as the appellant was aware of the potential sentences he faced, and there was no ambiguity in the statutory language.

The final orders of the Court were that the appeal was dismissed, and the convictions and sentences of the appellant were upheld. The Court confirmed the validity of the overlapping mandatory minimum sentences under s 25B(2) and s 31AB(1)(b) of the Narcotic Drugs Act 1967 (Cth), and held that they did not violate the principle of legality or s 80 of the Australian Constitution.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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