Nafi v The Queen

This case concerned an appeal by Nafi against a sentence imposed under section 236B of the *Migration Act 1958* (Cth). The central dispute revolved around whether Nafi's conviction constituted a "repeat offence" for the purposes of the mandatory minimum sentencing provisions within that section. The appeal was heard by Riley CJ, Blokland and Barr JJ.

The legal issues before the court were twofold: first, the interpretation of "repeat offence" as defined in section 236B of the *Migration Act*, specifically concerning the operative date for determining whether a prior conviction counted towards a repeat offence; and second, whether proceedings had commenced prior to the commencement of section 236B, and if so, how that impacted the application of the section. The court also considered the nature of the power exercised by a Magistrate during committal proceedings.

The court reasoned that, unlike previous mandatory sentencing regimes where clarity was lacking, section 236B of the *Migration Act* clearly stipulated that the date of conviction, rather than the date of the offence, was the operative event for counting towards a repeat offence. The court found that a conviction for an offence committed before the commencement of section 236B would not attract the minimum five-year term, but a second conviction after its commencement would constitute a "repeat offence." The court noted that section 236B expanded the definition of "repeat offence" to include convictions within the same proceedings, but this expansion did not impose any additional liability on the appellant. The court applied a principle of benevolent construction in favour of the applicant where any ambiguity existed. The court also determined that proceedings commenced with the filing of an indictment in the Supreme Court, and that a Magistrate exercises executive power at committal proceedings.

The court allowed the appeal and set aside the sentence imposed, remitting the matter for re-sentencing.