R v Abbas

[2019] WASCA 64

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   R -v- ABBAS [2019] WASCA 64

CORAM:   BUSS P

MAZZA JA

BEECH JA

HEARD:   22 NOVEMBER 2018

DELIVERED          :   24 APRIL 2019

FILE NO/S:   CACR 56 of 2018

BETWEEN:   THE QUEEN

Appellant

AND

SAYED ABBAS

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   STAVRIANOU DCJ

File Number             :   IND 1062 of 2016

Catchwords:

Criminal law - Crown appeal against sentence - Migration offences - People smuggling - Respondent organised and facilitated the unlawful arrival of passengers in Australia on three boats - Respondent motivated by financial gain - Three offences - One of the offences a repeat offence - Respondent convicted after trial - Sentence of 6 years' imprisonment for each of the first and second offences - Sentence of 8 years' imprisonment (reduced from 9 years in the application of the totality principle) for the repeat offence - Total effective sentence of 12 years' imprisonment - Non–parole period of 7 years 3 months - Mandatory minimum penalties - Mandatory minimum non–parole period - Manifest inadequacy

Legislation:

Crimes Act 1914 (Cth), s 16A, s 16B, s 17A, s 19AB
Criminal Appeals Act 2004 (WA), s 31(4), s 41(3)(c)
Judiciary Act 1903 (Cth), s 68
Migration Act 1958 (Cth), s 232, s 233C, s 236B

Result:

Appeal allowed

Sentencing decision of the primary judge set aside

Respondent resentenced

Category:    D

Representation:

Counsel:

Appellant	:	Ms W J Abraham QC & Mr E W L Greaves
Respondent	:	Ms K J Farley SC

Solicitors:

Appellant	:	Director of Public Prosecutions (Cth)
Respondent	:	Legal Aid (WA)

Case(s) referred to in decision(s):

Bahar v The Queen [2011] WASCA 249; (2011) 45 WAR 100

Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58

Bertilone v The Queen [2009] WASCA 149; (2009) 231 FLR 383

Bick v The Queen [2006] NSWCCA 408

Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525

Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638

CMB v Attorney General (NSW) [2015] HCA 9; (2015) 256 CLR 346

Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367

Director of Public Prosecutions (Cth) v Haidari [2013] VSCA 149; (2013) 230 A Crim R 134

Gaskell v The State of Western Australia [2018] WASCA 8

Giglia v The State of Western Australia [2010] WASCA 9

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

Karim v The Queen [2013] NSWCCA 23; (2013) 83 NSWLR 268

Lam v The Queen [2014] WASCA 114; (2014) 241 A Crim R 562

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

McAlpine v The State of Western Australia [2018] WASCA 195

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600

Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656

Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

Power v The Queen [1974] HCA 26; (1974) 131 CLR 623

R v Feng Lin [2001] NSWCCA 7; (2001) 119 A Crim R 194

R v Hopkins [2008] NTSC 15; (2008) 22 NTLR 125

R v Karabi [2012] QCA 47; (2012) 220 A Crim R 338

R v Latif; Ex parte Director of Public Prosecutions (Cth) [2012] QCA 278

R v Nitu [2012] QCA 224; [2013] 1 Qd R 459

R v Pot (Supreme Court of the Northern Territory, Riley CJ, 18 January 2011, unreported)

R v Rajacic [1973] VR 636

R v Ruha; Ex parte Director of Public Prosecutions (Cth) [2010] QCA 10; [2011] 2 Qd R 456

R v Selu; Ex Parte Director of Public Prosecutions (Cth) [2012] QCA 345

Roffey v The State of Western Australia [2007] WASCA 246

Stipkovich v The Queen [2018] WASCA 63

The State of Western Australia v Doyle [2017] WASCA 207

JUDGMENT OF THE COURT:

1. This is a Crown appeal against sentence.

2. In August 2015, the respondent was extradited from Indonesia on 27 charges relating to people smuggling offences.  There were three principal counts (namely counts 1, 7 and 14) and 24 counts in the alternative.

3. Count 1 alleged that between about 1 March 2009 and about 25 April 2009, in Indonesia and elsewhere, the respondent facilitated the bringing or coming to Australia of a group of at least five persons, who were non‑citizens and who travelled to Australia without a visa that was in effect, and that the respondent did so reckless as to whether those persons had, or have, a lawful right to come to Australia, contrary to s 232A(1) of the Migration Act 1958 (Cth).

4. Count 7 alleged that between about 1 March 2009 and about 5 May 2009, in Indonesia and elsewhere, the respondent facilitated the bringing or coming to Australia of a group of at least five persons, who were non‑citizens and who travelled to Australia without a visa that was in effect, and that the respondent did so reckless as to whether those persons had, or have, a lawful right to come to Australia, contrary to s 232A(1) of the Migration Act.

5. Count 14 alleged that between about 1 June 2011 and about 11 August 2011, in Indonesia and elsewhere, the respondent organised or facilitated the bringing or coming to Australia of a group of at least five persons, who were non‑citizens and who had, or have, no lawful right to come to Australia, and that the respondent did so reckless as to whether those persons had, or have, a lawful right to come to Australia, contrary to s 233C(1) of the Migration Act.

6. On 31 May 2017, after a trial before Stavrianou DCJ and a jury which occupied 43 sitting days, the respondent was convicted of counts 1, 7 and 14.

7. Counts 1, 7 and 14 related to three different boats, each of which was intercepted by the authorities.

8. Count 1, which related to the first boat, occurred between about 1 March 2009 and about 25 April 2009.  This boat was referred to at the trial as SIEV 38.  The boat was intercepted on 25 April 2009 near Scott Reef.  It carried 55 passengers and two crew.

9. Count 7, which related to the second boat, occurred between about 1 March 2009 and about 5 May 2009.  This boat was referred to at the trial as SIEV 41.  The boat was intercepted on 5 May 2009 near Ashmore Reef.  It carried 51 passengers and two crew.

10. Count 14, which related to the third boat, occurred between about 1 June 2011 and about 11 August 2011.  This boat was referred to at the trial as SIEV 260.  The boat was intercepted on 11 August 2011 at Christmas Island.  It carried 103 passengers and four crew.

11. At the material time, the maximum penalty for the offence charged in each count was 20 years' imprisonment or 2,000 penalty units ($220,000) or both. Each of the offences had a prescribed mandatory minimum sentence. The mandatory minimum penalty prescribed by s 233C of the Migration Act (as then in force) in relation to each of counts 1 and 7 was at least 5 years' imprisonment with a non‑parole period of at least 3 years. The mandatory minimum penalty prescribed by s 236B of the Migration Act in relation to count 14 was at least 8 years' imprisonment with a non‑parole period of at least 5 years.

12. On 9 March 2018, the trial judge imposed individual sentences of imprisonment as follows:

    (a)count 1: 6 years' imprisonment;

    (b)count 7: 6 years' imprisonment; and

    (c)count 14: 8 years' imprisonment (reduced from 9 years' imprisonment in the application of the totality principle).

13. His Honour ordered that the sentence for count 1 commence on 8 May 2012; the sentence for count 7 commence on 8 May 2012; and the sentence for count 14 commence on 8 May 2016.  The total effective sentence was therefore 12 years' imprisonment.  His Honour imposed a non-parole period of 7 years 3 months (ts 4057).

14. We would allow the appeal, set aside the trial judge's sentencing decision and re-sentence the respondent.  Our reasons are as follows.

The Crown's case at the trial

1. The Crown's case at the trial was that the respondent was a high-level participant in international people smuggling networks.  The respondent played a central and pivotal role in organising and facilitating, in exchange for significant amounts of cash in United States dollars, the arrival of unlawful non-citizen passengers into Australia from Indonesia on board SIEV 38, SIEV 41 and SIEV 260.

2. The Crown's case relied upon a combination of direct evidence and circumstantial evidence.  In summary, that evidence was as follows:

   (a)Passenger witnesses from each of the boats gave evidence of their direct dealings with the respondent, both in person and by telephone, and identified him in a photoboard identification process as the person with whom they dealt in Indonesia to organise their unlawful travel to Australia by boat and to whom they paid money for that purpose.

   (b)Some passenger witnesses had been given the respondent's name and telephone number as the person who could organise their unlawful travel from Indonesia to Australia by boat when they were already in Indonesia, while other passenger witnesses had been given the respondent's name and telephone number, as the person who could organise their unlawful travel to Australia, before they departed from their country of origin, namely Afghanistan, Pakistan or Iran.

   (c)The respondent gave instructions to some proposed passengers, in their country of origin, about travelling to Australia via Indonesia and about the timing of their travel to Indonesia before their departure by boat from Indonesia to Australia.  There were also discussions as to the cost of their journey to Australia.

   (d)The respondent discussed the journey to Australia with some passengers by telephone and in person.  During those discussions and meetings, the respondent gave the proposed passengers information about their intended unlawful travel to Australia by boat including, for example, that he was organising or buying a 'good boat' or a 'big boat'; the boat would be safe; there would be life jackets and food on board; the number of days they would be at sea before reaching Australia; they would be placed in a detention centre in Australia before being accepted as refugees; they should destroy their passports before reaching Australia; and that he would collect or arrange for the collection of passengers' passports and mobile telephones, for security reasons, before they boarded the boat that would transport them to Australia.

   (e)The respondent arranged accommodation for the passengers and organised their travel to and around Indonesia (for example, by providing train tickets and airline tickets) to the points of embarkation of SIEV 38, SIEV 41 and SIEV 260.

   (f)The respondent negotiated with some passengers who wanted a cheaper price as to the cost of organising their unlawful travel from Indonesia to Australia by boat.  He also collected from the passengers amounts of cash in United States dollars for that purpose.

   (g)On other occasions, the respondent told some passengers, who had already paid money to others in their countries of origin, that he knew they had already paid a particular amount and that he would obtain or had obtained his payment from those other persons before he organised the passengers' travel from Indonesia to Australia by boat.  The Crown argued that this demonstrated the respondent's connections to and involvement with international people smuggling networks.

   (h)The amounts paid by passengers to the respondent varied between about $US5,000 and $US10,000 per person for him to organise their unlawful travel from Indonesia to Australia by boat.  In the case of one passenger (Ahmadizadeh) the respondent agreed to accept $US3,000 in payment because they were both of 'Sayed' ethnicity.  The Crown argued that this transaction demonstrated the respondent's authority and decision‑making control.

   (i)The respondent's mobile telephone contained different telephone numbers for people located in various overseas countries, including the countries from which the passengers had originated or through which they had travelled before arriving in Indonesia; for example, Afghanistan, Pakistan, Iran, Thailand and Malaysia.  The Crown argued that this demonstrated the respondent's wide‑ranging international connections and involvement with overseas‑based people smuggling networks.

   (j)The respondent played an integral part in the people smuggling operation.  He was motivated by financial gain and had a high level of authority.  He organised and facilitated passengers to board the three boats, putting the passengers and crew at risk of their lives.

3. The respondent committed the offences in respect of SIEV 38 and SIEV 41 between 1 March 2009 and 5 May 2009.  He committed the offence in respect of SIEV 206 between 1 June 2011 and 11 August 2011.

4. Prior to committing those offences, the respondent had been arrested on 2 November 2008 by Indonesian police and charged with 'immigration offences'.  On 16 February 2009, he was released on 'city detention'. 

5. For some of the period between May 2009 and June 2011, the respondent was in detention in Indonesia.  The Crown's case was that the respondent had not been in detention in Indonesia for a continuous period.  The Crown's case in that respect was different from the respondent's alleged alibi.

The respondent's case at the trial

1. The respondent's case at the trial was that the respondent was not the person named Sayed Abbas who had been identified by a number of the passenger witnesses as the organiser of each of SIEV 38, SIEV 41 and SIEV 260 because during the periods of the offending he was in custody in Indonesia.

2. At the trial, the respondent did not give or adduce any evidence.

The trial judge's sentencing remarks

1. The trial judge made findings of fact and comments, for the purposes of sentencing, as follows.

2. The evidence of each of the passenger witnesses was compelling, truthful and reliable.  His Honour incorporated the description of their evidence, as set out in the Crown's written outline of submissions on sentencing, into his Honour's sentencing remarks without repeating the whole of their evidence.

3. Between 1 March 2009 and 11 August 2011, the respondent committed the three offences by facilitating or organising the bringing to Australia of persons from Indonesia on SIEV 38, SIEV 41 and SIEV 260.  The total number of passengers was just over 200.

4. As to SIEV 38, the respondent dealt separately with the four passenger witnesses.  The respondent explained the safety of the boat, the conditions and the cost.  He negotiated the price of organising and facilitating the travel to Australia.  The cost ranged between $US5,000 and $US10,000.  Each of the passenger witnesses paid the price to the respondent in cash (United States dollars).  The respondent told the passengers to stay in certain places and that other people would take them to other places.  The respondent provided the passengers with tickets for travel by train from Jakarta to Surabaya and by aircraft from Surabaya to Lombok.  He told the passengers that other men would meet them in Lombok and take them to the boat on which they would travel to Australia.

5. As to SIEV 41, the respondent dealt separately with the six passenger witnesses.  He met with each of them on multiple occasions.  The respondent requested and received payment in cash (United States dollars) from the passenger witnesses for organising and facilitating their travel to Australia in circumstances similar to the passenger witnesses who travelled on SIEV 38.  The respondent provided train tickets and airline boarding passes to four of the passenger witnesses.  He gave instructions for the journey and told them about the boat on which they would be travelling.

6. As to SIEV 260, the respondent dealt separately with the 10 passenger witnesses.  He met with each of them on multiple occasions.  The respondent gave the passenger witnesses information about the boat on which they would be travelling and instructions about the journey to Australia.  He negotiated the price of organising and facilitating the travel to Australia.  The cost ranged between $US5,000 and $US10,000.  Each of the passenger witnesses paid the price to the respondent in cash (United States dollars).  The respondent was involved in arranging transport for the passengers to and around Indonesia.  He organised their accommodation in Indonesia.  The respondent gave instructions about the departure arrangements.  He told them to destroy their passports before they arrived in Australia.

7. There were similarities as to the manner in which each of the passenger witnesses was able to travel illegally to Australia.

8. The boats were overcrowded and constituted a serious risk to the health and lives of the passengers and the crew.  Also, the respondent's conduct imposed a significant financial burden on the Australian public.

9. The respondent's conduct was motivated by financial gain.

10. The respondent was involved at a 'high level' in a 'reasonably well‑organised' enterprise (ts 4052).  His Honour said that 'the nature of the relationship between the various participants [in the people smuggling operation] cannot be identified with any significant degree of precision' (ts 4053).  His Honour added that he would sentence the respondent 'based upon what [he] did rather than seeking to attribute some form of label to [his] conduct' (ts 4053).  Nevertheless, his Honour was satisfied that the respondent had an 'integral part' in the people smuggling involved in each of the offences (ts 4053).  The respondent had authority at a 'high level' (ts 4053).  He was able to give directions and receive money.  The respondent had contacts in other countries; specifically Afghanistan, Jakarta and Iran.  He was part of a 'reasonably sophisticated operation' and his role was 'important' (ts 4053).

11. His Honour referred to the respondent's personal circumstances and antecedents.  In particular:

    (a)The respondent was born on 10 July 1982 in Afghanistan.  He had a difficult upbringing.  The respondent was aged 27 years when he committed counts 1 and 7 and was aged 29 when he committed count 14.  In 2010, the respondent married an Indonesian woman.  They have a daughter aged seven.  The respondent has other family in Afghanistan.  He will suffer hardship being in prison in a foreign country and away from his family.

    (b)The information before his Honour included a letter dated 17 December 2017 written by the respondent to his Honour.  In the letter the respondent said that he was 'extremely sorry for the burden [he had] become on [Australia]' and that he had 'nothing but remorse for his crimes'.  Defence counsel confirmed to his Honour at the sentencing hearing that the respondent accepted his guilt.  His Honour said that he took into account everything contained in the respondent's letter.

    (c)The information before his Honour also included a pre‑sentence report dated 1 September 2017 and a psychological report dated 20 November 2017. 

    (d)In the pre-sentence report, the author recorded that the respondent was not prepared to complete any prison-based programs because he is likely to be deported to Afghanistan upon his release from custody.  The respondent confirmed that his wife and daughter are safe in Indonesia and are currently being cared for by 'the maternal family network'.  He maintains telephone contact with his elderly mother in Afghanistan.  The respondent did not complete any formal education in Afghanistan or any adult education programs.  His literacy skills are poor.  He has a basic grasp of the English language.  The respondent reported that he suffers from anxiety, worry and depression, especially concerning the welfare of his wife, daughter and elderly mother.

    (e)In the psychological report, Ms Jane Sampson, a clinical and forensic psychologist, noted that the respondent's father had been killed in Afghanistan when the respondent was aged about 15.  The father was apparently shot by 'communist fighters'.  This resulted in the respondent having to take responsibility for his family.  The respondent said he had close relationships with his siblings and his mother, but his father was a distant figure who did not support him emotionally.  There was frequent violence between groups in the village where the respondent lived as a child.  He was present when people were shot and injured, but he did not witness any deaths.  He was frequently involved in physical altercations with others and he was often assaulted.  The respondent left Afghanistan when he was aged 17.  Eventually, he arrived in Indonesia.  He lived in a refugee camp for about five years.  The conditions in the camp were very harsh.  When he was aged about 23 the respondent began living in the Indonesian community after he was refused status as a refugee.  The respondent claimed that his only source of income had been occasional work as a bricklayer.  He asserted that he has no assets or financial resources.  Ms Sampson said the respondent was orientated in time and place.  He did not display symptoms of thought disorder, cognitive difficulties or perceptual disturbance.  However, the respondent described features of depression and, also, 'symptoms likely to be reflective of Post‑Traumatic Stress Disorder, such as intrusive memories and nightmares in relation to childhood experiences'.  Ms Sampson noted that the respondent had used MDMA and cannabis as a form of self‑medication.  According to Ms Sampson, it was difficult to provide any comment as to the respondent's risk of re‑offending.  It is not possible to predict recidivism with certainty, and assessment of the respondent was limited by the information available to her.  The respondent has family support in Indonesia, but it is possible that he will be deported to Afghanistan upon his release from prison.  In those circumstances, he would be socially isolated.

    (f)His Honour found that there was no causal connection between the respondent's depression arising from his background circumstances, on the one hand, and the commission of the offences, on the other. 

    (g)The respondent had a criminal history in Indonesia.  He had served periods of detention and a term of imprisonment in that country.  The respondent had no prior criminal record in Australia.  He had never lived in Australia before his extradition from Indonesia.  The Crown tendered evidence at the trial to the effect that the respondent had been sentenced in Indonesia to 2 years 6 months' imprisonment for an offence committed in November 2008 which was similar but unrelated to the offences he committed in respect of SIEV 38, SIEV 41 and SIEV 260.

1. The trial judge made the following remarks in the course of imposing the individual sentences and the total effective sentence:

   In relation to count 1, I consider an appropriate term of imprisonment is a period of six years.  In relation to count 7, I consider an appropriate term of imprisonment is one of six years.  In relation to count 14, I consider an appropriate term of imprisonment is one of nine years.

   Now, this offending occurred on separate occasions as has been indicated but have different passengers and so subject to the question of totality they should be cumulative.

   …

   In the circumstances, I propose to order that some parts of the terms be served concurrently with others so as to ensure that the sentence reflects your criminality as a whole and also removes any crushing element.

   In my view, the total criminality in this case warrants a total effective sentence of 12 years’ imprisonment.  That term properly responds to your criminality.

   In order to achieve that sentence of 12 years, in my view and taking into account the backdating provision, I would reduce the sentence in relation to count [14] for totality purposes from a period of nine years to one of eight years.

   The total effective sentence which I intend to impose is one of 12 years.  To achieve that result, count 1 of six years is to commence on 8 May 2012.  Count [7], six years to commence on 8 May 2012.  Count [14], eight years to commence on 8 May 2016.

   The effect of that sentencing as I apprehend it is to impose a term of imprisonment of 12 years.  I’ve taken a last look at the sentence.  In my view, the sentence of 12 years is the appropriate disposition in this case (ts 4054 - 4055).

2. His Honour then noted that there was a dispute between the Crown and the respondent in relation to the backdating of the total effective sentence by a further period of 124 days (ts 4055).  His Honour said that the 124 days should not be taken into account 'for the purpose of backdating', but he had taken the 124 days specifically into account 'in a general way in coming to the ultimate conclusion in relation to the question of the appropriate sentence to be imposed' (ts 4055 - 4056).

The grounds of appeal

1. The Crown relies upon four grounds of appeal. 

2. Ground 1 alleges that the sentence imposed on count 1 is manifestly inadequate.  Ground 2 alleges that the sentence imposed on count 7 is manifestly inadequate.  Ground 3 alleges that the sentence imposed on count 14 is manifestly inadequate.  Ground 4 alleges that each of the total effective sentence and the non-parole period is manifestly inadequate.

3. On 10 June 2018, Mazza JA granted leave to appeal on those grounds of appeal.

The grounds of appeal: the relevant provisions of the Migration Act

1. As to counts 1 and 7, at the material time s 232A of the Migration Act provided:

   (1)A person who:

   (a)organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of 5 or more people to whom subsection 42(1) applies; and

   (b)does so reckless as to whether the people had, or have, a lawful right to come to Australia;

   is guilty of an offence punishable, on conviction, by imprisonment for 20 years or 2,000 penalty units, or both.

   Note:Sections 233B and 233C limit conviction and sentencing options for offences under this section.

   (2)For the purposes of subsection (1), the defendant bears an evidential burden in relation to establishing that subsection 42(1) does not apply to a person because of subsection 42(2) or (2A) or regulations made under subsection 42(3).

   Note:For evidential burden, see section 13.3 of the Criminal Code.

2. Further, as to counts 1 and 7, at the material time s 233C of the Migration Act provided:

   (1)This section applies if a person is convicted of an offence under section 232A or 233A, unless it is established on the balance of probabilities that the person was aged under 18 years when the offence was committed.

   (2)The court must impose a sentence of imprisonment of at least:

   (a)        8 years, if the conviction is for a repeat offence; or

   (b)        5 years, in any other case.

   (3)The court must also set a non‑parole period of at least:

   (a)        5 years, if the conviction is for a repeat offence; or

   (b)        3 years, in any other case.

   (4)In this section:

   (a)non‑parole period has the same meaning as it has in Part IB of the Crimes Act 1914; and

   (b)a person’s conviction for an offence is for a repeat offence if, on a previous occasion after the commencement of this section, a court:

   (i)has convicted the person of another offence, being an offence against section 232A or 233A; or

   (ii)has found, without recording a conviction, that the person had committed another such offence.

3. As to count 14, at the material time s 233C of the Migration Act provided:

   (1)A person (the first person) commits an offence if:

   (a)the first person organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of at least 5 persons (the other persons); and

   (b)at least 5 of the other persons are non‑citizens; and

   (c)the persons referred to in paragraph (b) who are non‑citizens had, or have, no lawful right to come to Australia.

   Penalty:Imprisonment for 20 years or 2,000 penalty units, or both.

   Note:Sections 236A and 236B limit conviction and sentencing options for offences against this section.

   (2)Absolute liability applies to paragraph (1)(b).

   Note:For absolute liability, see section 6.2 of the Criminal Code.

   (3)If, on a trial for an offence against subsection (1), the trier of fact:

   (a)is not satisfied that the defendant is guilty of that offence; and

   (b)is satisfied beyond reasonable doubt that the defendant is guilty of the offence of people smuggling;

   the trier of fact may find the defendant not guilty of an offence against subsection (1) but guilty of the offence of people smuggling, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

4. Further, as to count 14, at the material time s 236B of the Migration Act provided:

   (1)This section applies if a person is convicted of an offence against section 233B, 233C or 234A.

   (2)This section does not apply if it is established on the balance of probabilities that the person was aged under 18 years when the offence was committed.

   (3)The court must impose a sentence of imprisonment of at least:

   (a)if the conviction is for an offence against section 233B - 8 years; or

   (b)if the conviction is for a repeat offence - 8 years; or

   (c)in any other case - 5 years.

   (4)The court must also set a non‑parole period of at least:

   (a)if the conviction is for an offence to which paragraph (3)(a) or (b) applies - 5 years; or

   (b)in any other case - 3 years.

   (5)A person’s conviction for an offence is for a repeat offence if:

   (a)in proceedings after the commencement of this section (whether in the same proceedings as the proceedings relating to the offence, or in previous proceedings), a court:

   (i)has convicted the person of another offence, being an offence against section 233B, 233C or 234A of this Act; or

   (ii)has found, without recording a conviction, that the person has committed another such offence; or

   (b)in proceedings after the commencement of the Border Protection (Validation and Enforcement Powers) Act 2001 (whether in the same proceedings as the proceedings relating to the offence, or in previous proceedings), a court:

   (i)has convicted the person of another offence, being an offence against section 232A or 233A of this Act as in force before the commencement of this section; or

   (ii)has found, without recording a conviction, that the person has committed another such offence.

   (6)In this section:

   non‑parole period has the same meaning as it has in Part IB of the Crimes Act 1914.

Grounds 1, 2 and 3: counsel for the Crown's submissions

1. Counsel for the Crown noted in her submissions that the individual sentences for counts 1 and 7 (namely 6 years' imprisonment for each count) were not significantly in excess of the mandatory minimum penalty (namely 5 years' imprisonment).  Counsel also noted that the individual sentence for count 14 (namely 8 years' imprisonment) was the mandatory minimum penalty.

2. Counsel emphasised that the respondent occupied a high position in the hierarchy of culpability for people smuggling offences.  The respondent's role was to be contrasted with the role of a crew member (or even a more responsible person, perhaps a captain) on the boats, who are usually Indonesian fishermen.  The respondent's role was also to be contrasted with the people on the boats who have nothing to do with the organisation of people smuggling enterprises.

3. It was submitted that, having regard to the maximum penalty for each offence, the mandatory minimum penalty for each offence, the standards of sentencing customarily observed for each offence, the place which the appellant's criminal conduct occupied on the scale of seriousness of offences of the kind in question and the respondent's personal circumstances, the sentence for each of counts 1, 7 and 14 was unreasonable or plainly unjust.

Grounds 1, 2 and 3: counsel for the respondent's submissions

1. Counsel for the respondent accepted that, especially where an offender is to be sentenced for a single offence, any mandatory minimum penalty for the offence should be imposed for offences within the least serious category of offending.  However, it was submitted that, in the present case, it was significant that the respondent was to be sentenced for more than one offence.  Counsel argued that where there is a challenge, on totality grounds, to a total effective sentence, the severity of an individual sentence will usually fall to be assessed having regard to the other individual sentences imposed and the contribution of the individual sentence in question to the total effective sentence.  A relatively lenient sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively.  According to counsel, the real question, in the present case, is not whether the individual sentences were manifestly inadequate, but whether the total effective sentence infringed the first limb of the totality principle.

Grounds 1, 2 and 3: their merits

1. The general sentencing principles applicable to federal offences are set out in div 2 of pt 1B of the Crimes Act1914 (Cth). See Hili v The Queen.[1] 

   [1] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [23] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell).

2. By s 68 of the Judiciary Act 1903 (Cth), some State or Territory laws in relation to the sentencing of federal offenders are picked up and applied when a State or Territory court, exercising federal jurisdiction conferred by s 68, sentences a federal offender. However, to the extent that pt 1B of the Crimes Act makes other provision, State and Territory laws in relation to the sentencing of offenders are not picked up.  See Hili [21].

3. Section 16A(1) of the Crimes Act provides that, in determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a sentencing court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. 

4. By s 16A(2), in addition to any other matters, the court must take into account such of the matters listed in s 16A(2) as are relevant and known to the court.

5. Section 17A(1) provides, relevantly, that a court shall not pass a sentence of imprisonment on any person for a federal offence unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.

6. In Hili, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ held that s 16A of the Crimes Act accommodates the application of common law sentencing principles because those principles give relevant content to the words in s 16A(1) 'of a severity appropriate in all the circumstances of the offence', and to the words in s 16A(2)(k) 'the need to ensure that the person is adequately punished for the offence' [25]. Accordingly, concepts such as personal and general deterrence and other common law sentencing principles are accommodated in s 16A, even though they are not specifically referred to. However, s 16A does not permit generalisations to be made across all forms of federal offences about how individual sentences are to be fixed [25].

7. The majority in Hili also noted that in dealing with appeals against sentences passed on federal offenders, it is necessary for there to be consistency of decisions throughout Australia. That consistency is to be achieved through the work of intermediate appellate courts. An intermediate appellate court should not depart from an interpretation of Commonwealth legislation by another intermediate appellate court, unless convinced that that interpretation is plainly wrong. Similarly, an intermediate appellate court should not depart from what is decided by another intermediate appellate court in considering the sufficiency of sentences passed on federal offenders at first instance, unless convinced that the decision is plainly wrong [57].

8. Section 16A applies of its own force to the sentencing of federal offenders. Although the provision accommodates the application of some common law sentencing principles (for example, general deterrence, proportionality and totality), it does not accommodate the principle of double jeopardy. See Bui v Director of Public Prosecutions (Cth).[2]

   [2] Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638 [18] ‑ [20] (French CJ, Gummow, Hayne, Kiefel & Bell JJ).

9. A ground of appeal which alleges that a sentence is manifestly inadequate asserts the existence of an implied error.  It is necessary, in determining whether a sentence is manifestly inadequate, to examine it from the perspective of the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.

10. When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the respondent, it is necessary to have regard to a range of comparable cases.  A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases.  Nevertheless, each case turns on its own particular facts and circumstances.  Sentencing ranges can provide only general guidance.  The guidance afforded by comparable cases is flexible rather than rigid.  A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly inadequate.  The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case.  Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.

11. When an intermediate appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.

12. If, in a particular case where manifest inadequacy is alleged, there are no directly comparable cases, an intermediate appellate court is not precluded from deciding that an individual sentence is manifestly inadequate.  It merely has the consequence that the court has no directly comparable cases to provide a yardstick against which to assess the sentence.  However, previous sentencing ranges are only one pointer to the adequacy of a sentence.  See Munda v The State of Western Australia;[3] The State of Western Australia v Doyle;[4] McAlpine v The State of Western Australia.[5]

    [3] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).

    [4] The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J).

    [5] McAlpine v The State of Western Australia [2018] WASCA 195 [54] (Buss P & Mazza JA).

13. Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge-made law.  See Barbaro v The Queen.[6]

    [6] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel & Bell JJ).

14. The discretion conferred on sentencing judges is, of course, of fundamental importance.  An intermediate appellate court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.  See Lowndes v The Queen.[7]

    [7] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh,

15. It is well established that:

    (a)a judge sentencing an offender for multiple offences must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality;

    (b)if, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation; and

    (c)if an appropriate sentence is not fixed for each offence, the failure to do so may give rise to artificial claims of disparity between co‑offenders or otherwise distort general sentencing practices in relation to particular offences.

    See Pearce v The Queen;[8] Nguyen v The Queen.[9]

    [8] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [45] ‑ [48] (McHugh, Hayne & Callinan JJ).

    [9] Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656 [37] (Bell & Keane JJ).

16. However, a sentencing judge may, in the application of the totality principle, achieve an appropriate total effective sentence either by ordering one or more of the individual sentences to be served wholly or partly concurrently or by reducing the otherwise appropriate length of one or more of the individual sentences.  See Mill v The Queen;[10] Johnson v The Queen[11] and Nguyen [64]. Although the joint judgment in Mill expressed a preference for achieving an appropriate total effective sentence by, where practicable, making one or more of the individual sentences wholly or partly concurrent, it is not erroneous for a sentencing judge to lower one or more of the individual sentences below what would otherwise be appropriate. 

    [10] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 63 (Wilson, Deane, Dawson, Toohey & Gaudron JJ).

    [11] Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [26] (Gummow, Callinan & Heydon JJ).

17. If a sentencing judge decides, in the application of the totality principle, to achieve an appropriate total effective sentence by lowering one or more of the individual sentences below what would otherwise be appropriate, the judge should expressly state that fact in his or her sentencing remarks. 

18. As we have mentioned, at the material time:

    (a)the maximum penalty for the offence charged in each of counts 1, 7 and 14 was 20 years' imprisonment or 2,000 penalty units ($220,000) or both;

    (b)the mandatory minimum penalty for the offence charged in each of counts 1 and 7 was at least 5 years' imprisonment with a non‑parole period of at least 3 years; and

    (c)the mandatory minimum penalty for the offence charged in count 14 was at least 8 years' imprisonment with a non‑parole period of at least 5 years.

1. In Bahar v The Queen,[12] the appellants were convicted of one count of facilitating the bringing or coming to Australia of a group of five or more people to whom s 42(1) of the Migration Act applied, and doing so reckless as to whether the people had a lawful right to come to Australia, contrary to s 232A(1) of the Migration Act. The trial judge sentenced each of the appellants to 5 years' imprisonment with a non‑parole period of 3 years. The Crown appealed against the sentences imposed. It alleged, first, that his Honour had erred in the application of the mandatory penalty provisions in s 233C and, secondly, that the sentences imposed were manifestly inadequate.

   [12] Bahar v The Queen [2011] WASCA 249; (2011) 45 WAR 100.

2. McLure P (Martin CJ and Mazza J agreeing) noted in Bahar [60] that the primary purpose of s 233C was to create certainty as to the type and minimum length of sentence for the offence of people smuggling in order to maximise its deterrent effect, both within and outside Australia.

3. In Bahar, McLure P explained the correct approach to the mandatory minimum penalty.  Her Honour concluded, relevantly, that:

   (a)The mandatory minimum penalty, like the maximum penalty, is a legislative direction as to the seriousness of the offence [46].

   (b)The observations of Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian v The Queen,[13] that 'careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all the other relevant factors, a yardstick', are, on the face of it, equally applicable to mandatory minimum penalties [48] - [49].

   (c)The general sentencing principles in the Crimes Act, as supplemented by common law principles, are framed at a level of generality for application within the boundaries of power established by the maximum penalty and the mandatory minimum penalty [54].

   (d)The maximum penalty and the mandatory minimum penalty dictate the seriousness of the offence, for the purposes of s 16A of the Crimes Act, and they are the ceiling and floor respectively within which the sentencing judge has a discretion to which the general sentencing principles are to be applied [54].

   (e)The question for the sentencing judge is where, having regard to all relevant sentencing factors, the offending in question falls in the range between the least serious category of offending, for which the mandatory minimum penalty is appropriate, and the worst category of offending, for which the maximum penalty is appropriate [58].

   [13] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [31].

4. McLure P also noted in Bahar [56] that a mandatory minimum penalty of imprisonment can create complications for reductions in sentence for mitigatory factors. Her Honour elaborated [56] - [57]:

   For example, on occasions it will not be possible to allow a usual discount for a mitigatory factor, such as a plea of guilty:  Teakle v The State of Western Australia (2007) 33 WAR 188 [19]. As Wheeler JA explained in Atherden v The State of Western Australia [2010] WASCA 33:

   [I]n relation to at least some offences which fall towards the lower end of the range of culpability, the presence of a minimum term makes it impossible for a sentencing judge to apply the quantum of discount for a plea of guilty which he or she would ordinarily apply, because to do so would mean that the sentence imposed would fall below the statutory minimum.  Where an offence is right at the bottom of the range of culpability, it may be that no discount at all can be given, for the same reason. 

   However, I do not think it follows that the principles governing the awarding of a discount for a plea of guilty cease to apply in cases where there is a statutory minimum term.  Rather, the result will be that there is a compression of sentences towards the lower end of the range, with offences at the bottom of the range of culpability treated effectively in the same way as those which are towards the lower end, but not at the extreme lower end, of culpability [42] - [43].

   These considerations will have a flow on effect on the application of the parity principle. 

5. In Bahar, this court disagreed with the approach to sentencing taken by Riley CJ in R v Pot.[14] That approach involved applying pt 1B of the Crimes Act to arrive at a view as to the appropriate sentence having regard to all the facts and circumstances of the offence. If the sentence arrived at in that manner was less than the mandatory minimum penalty, the sentence would be increased to comply with the mandatory requirements of s 233C.

   [14] R v Pot (Supreme Court of the Northern Territory, Riley CJ, 18 January 2011, unreported).

6. The approach to sentencing enunciated in Bahar has been approved and followed by the Court of Appeal of Queensland in R v Karabi;[15] R v Nitu[16] and R v Latif[17] and by the Court of Criminal Appeal of New South Wales in Karim v The Queen.[18]

   [15] R v Karabi [2012] QCA 47; (2012) 220 A Crim R 338 [35] (Muir JA; Fraser & Chesterman JJA agreeing).

   [16] R v Nitu [2012] QCA 224; [2013] 1 Qd R 459 [34] - [37] (Fraser JA; Holmes JA & Ann Lyons J agreeing).

   [17] R v Latif; Ex parte Director of Public Prosecutions (Cth) [2012] QCA 278 [20] - [22] (Fraser JA; Gotterson JA & Mullins J agreeing).

   [18] Karim v The Queen [2013] NSWCCA 23; (2013) 83 NSWLR 268 [42] - [45] (Allsop P; Bathurst CJ, Hall & Bellew JJ agreeing).

7. In Karim [45], Allsop P said there was an independent reason why he favoured the construction in Bahar over that in Pot:

   Equal justice inheres in judicial power, the fabric of the law and the basal notion of justice that underpins, informs and binds the legal system.  As Gaudron, Gummow and Hayne JJ said in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 608 [65], '[e]qual justice requires identity of outcome in cases that are relevantly identical.  It requires different outcomes in cases that are different in some relevant respect' (emphasis in original).  To approach the matter as in Pot would see cases of perceived different seriousness by force of statute given the same penalty.  Thus, if a judge thought the relevant offending in one case to be of low seriousness and worthy of a sentence of 6 months, but in another case to be of significant seriousness worthy of imprisonment for 5 years, she or he would be obliged to revise the first sentence to 5, leaving the second sentence at that point also.  The statute, and through it the order of the Court, would be the instrument of unequal justice and, so, injustice: R v Green [2010] NSWCCA 313; (2010) 207 A Crim R 148 at 156 [23]; and Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 at 466 [4] and 489 [80]. On the other hand, approaching the matter as in Bahar permits all usual sentencing considerations, including parity, to be accommodated, though in a more compressed range, and with the consequence of a general increase in the levels of sentences.

8. Personal and general deterrence are significant factors in sentencing for people smuggling offences.  As Muir JA (Fraser and Chesterman JJA agreeing) observed in Karabi [21]:

   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.  The seriousness with which the Parliament regards such conduct is apparent from the maximum and minimum penalties …

   See also Latif [27]; Director of Public Prosecutions (Cth) v Haidari.[19]

   [19] Director of Public Prosecutions (Cth) v Haidari [2013] VSCA 149; (2013) 230 A Crim R 134 [20] (Harper JA; Weinberg & Priest JJA agreeing).

9. In R v Feng Lin,[20] Mason P said that the need for deterrent penalties, in the case of people smuggling offences, 'is manifest given the difficulties of detection and the exposure of Australia through its vast coastline'.

   [20] R v Feng Lin [2001] NSWCCA 7; (2001) 119 A Crim R 194 [3].

10. We turn now to consider such of the matters specified in s 16A(2) of the Crimes Act as are relevant in the present case and known to the court.

11. As to s 16A(2)(a), we have already recounted or referred to the nature and circumstances of each of the offences including the respondent's role in the people smuggling organisation.

12. As to s 16A(2)(b), there are no other offences that are required or permitted to be taken into account (except, in relation to his personal circumstances and antecedents, the respondent's criminal history in Indonesia).

13. As to s 16A(2)(c), the offence charged in count 1 occurred between about 1 March 2009 and about 25 April 2009; the offence charged in count 7 occurred between about 1 March 2009 and about 5 May 2009; and the offence charged in count 14 occurred between about 1 June 2011 and about 11 August 2011. The respondent's criminality was not isolated or opportunistic. It involved planning and premeditation.

14. As to s 16A(2)(d), the 'victims' of the offending were the passengers on SIEV 38, SIEV 41 and SIEV 260 and the Australian community generally. The passengers were highly vulnerable and exploited for financial gain. The boats were overcrowded and were a serious risk to the health and life of the passengers (as well as the crew). Also, the respondent's conduct imposed a significant financial burden on the Australian public.

15. As to s 16A(2)(e), the trial judge did not make any findings that any injury, loss or damage had resulted from the offences (except, of course, that the respondent's conduct imposed a significant financial burden on the Australian public).

16. Section 16A(2)(ea) is not relevant.

17. As to s 16A(2)(f), as we have mentioned, the respondent sent a letter dated 17 December 2017 to the trial judge in which the respondent said he was 'extremely sorry for the burden [he had] become on [Australia]' and that he had 'nothing but remorse for [his] crimes'. Defence counsel informed his Honour at the sentencing hearing that the respondent accepted that he was guilty.

18. Section 16A(2)(fa) is not relevant.

19. As to s 16A(2)(g), the respondent did not plead guilty to the charge in respect of any of the offences.

20. As to s 16A(2)(h), the respondent did not cooperate, to any material extent, with law enforcement agencies in the investigation of the offences in question or of other offences.

21. As to s 16A(2)(j), the sentences under consideration are likely to have at least some deterrent effect on the respondent.

22. As to s 16A(2)(ja), the sentences under consideration are likely to have at least some deterrent effect on other persons who are informed of the facts and circumstances of the respondent's offending and the sentences imposed upon him.

23. As to s 16A(2)(k), it is essential to ensure that the respondent is adequately punished for the offences having regard, in particular, to the objective seriousness of his offending (including his role within the people smuggling organisation) and the important sentencing factors of personal and general deterrence.

24. As to s 16A(2)(m), the character, antecedents, age, means and mental condition of the respondent are apparent from our account of the trial judge's sentencing remarks at [24] - [32] above. His physical condition appears to be satisfactory.

25. As to s 16A(2)(n), it is difficult to make an assessment of the respondent's prospect of rehabilitation. The respondent's literacy skills are poor and he has only a basic grasp of the English language. He informed the author of the pre-sentence report that he was not prepared to complete any prison-based programs because he is likely to be deported to Afghanistan upon his release from custody. If he is deported to Afghanistan, he will be socially isolated. The respondent's prospect of rehabilitation is uncertain.

26. As to s 16A(2)(p), it is probable that the sentence imposed upon the respondent will have an adverse effect on his family and dependants. He will be unable to support his wife or children financially or emotionally. However, as we have mentioned, it appears that his wife and children are being cared for in Indonesia by 'the maternal family network'. He will be unable to support his elderly mother financially.

27. We will now review a number of prior cases with some features comparable to the respondent's offending in counts 1 and 7 or count 14.  We will confine our review to cases where the offender was sentenced in accordance with the Bahar approach.

28. As we have noted, in Bahar the appellants were convicted after trial of one count of facilitating the bringing or coming to Australia of a group of five or more people to whom s 42(1) of the Migration Act applied, and doing so reckless as to whether those people had a lawful right to come to Australia, contrary to s 232A(1) of the Migration Act. The maximum penalty for the offence was 20 years' imprisonment or 2,000 penalty units or both.  The mandatory minimum penalty was 5 years' imprisonment with a non‑parole period of at least 3 years.  The appellants were each sentenced by the trial judge to 5 years' imprisonment with a non‑parole period of 3 years.  The appellants appealed against conviction.  The Crown appealed against sentence.    All of the appeals were dismissed.  The appellants were the crew of a boat which was intercepted by the Australian authorities, and which was transporting a group of 50 people from Indonesia to Australia.  The appellants were Indonesian nationals and residents.  The trial judge found that they had very elementary or limited education and that their motivation for offending was a financial imperative.  They were easy prey to sophisticated people smuggling organisers.  None of the appellants had any involvement in the organisation.  Their role in the offending placed them at the very bottom level of the hierarchy of culpability.  They were both financially vulnerable and dispensable.  There was no finding that any of the appellants appreciated the serious consequences of their conduct.  This court held that it was open to the trial judge to regard the appellant's offending as being within the least serious category.  Accordingly, the Crown appeal against sentence was dismissed.

29. In Karabi, the appellant pleaded guilty to an offence under s 232A(1) of the Migration Act of facilitating the bringing or coming to Australia of a group of five or more people to whom s 42(1) of the Migration Act applied, and doing so reckless as to whether those people had a lawful right to come to Australia.  The maximum penalty for the offence was 20 years' imprisonment or 2,000 penalty units or both.  The mandatory minimum penalty was 5 years' imprisonment with a non‑parole period of at least 3 years.  The appellant was sentenced to 6 years 6 months' imprisonment with a non‑parole period of 4 years.  He appealed against sentence.  The appellant was aged 47 and an Indonesian fisherman.  He was educated to grade 12.  He was married with eight children.  The appellant was the captain of a boat with six passengers.  The passengers had paid amounts of between $US7,000 and $US10,000 for travel from Indonesia to Australia.  There were three crew members, including the appellant's 16‑year‑old son.  The boat was generally seaworthy, but it had a design that made it unsuitable 'in any significant sea'.  There were six life jackets on board.  The boat was intercepted by the Australian authorities.  The appellant had a limited role in the organisation of the venture.  His role went beyond merely serving as the captain of the boat.  In particular, he visited the passengers in the house in which they were staying near the point of embarkation on the day before their departure.  He told them that they would be departing the next day.  Passengers saw him talking on his mobile telephone and signalling, by means of a light from the telephone, to the boat which subsequently approached to effect embarkation.  The appellant's motive for the offending was to escape from creditors who were pursuing him and to seek asylum in Australia.  He was not paid for his services as the captain of the boat, but did receive some financial benefit in that he was not required to pay for his passage.  The appellant intended to, and did in fact, on arrival apply for asylum on the basis that he was being pursued by his creditors, who were threatening his life.  The appellant had relevant prior convictions.  In August 2000, he was convicted of facilitating the bringing to Australia of a group of five or more non-citizens and sentenced to 2 years 8 months' imprisonment.  In January 1996, he was convicted of using a foreign boat for commercial fishing and placed on a 3‑year good behaviour bond.  In June 2003, he was convicted of using a foreign boat for commercial fishing and fined $10,000.  The Court of Appeal of Queensland rejected the appellant's argument that his head sentence and his non‑parole period were manifestly excessive.  The court dismissed his appeal.

30. In Latif, the respondent pleaded guilty, on the first day of his trial, to an offence under s 232A(1) of the Migration Act of facilitating the bringing or coming to Australia of a group of five or more people, namely a group of 31 people, to whom s 42(1) of the Migration Act applied, and doing so reckless as to whether those people had a lawful right to come to Australia.  The maximum penalty for the offence was 20 years' imprisonment or 2,000 penalty units or both.  The mandatory minimum penalty was 5 years' imprisonment with a non‑parole period of at least 3 years.  The respondent was sentenced to 6 years' imprisonment with a non‑parole period of 3 years.  The Crown appealed against sentence.  The respondent navigated the boat within Indonesia to the place where the 31 passengers and a man, who took over control of the boat, came on board.  The sentencing judge accepted that the respondent originally agreed to board the boat after it was represented to him that the boat was shifting freight.  The sentencing judge found that the respondent elected, as he had no other choice, to stay on board the boat and perform various functions.  The respondent acted as a deputy captain of the boat for about four days of its journey to Australia before the man in control left the vessel.  The respondent then took charge for the last day of the journey before the boat was intercepted by the Australian authorities.  The sentencing judge accepted that the respondent did not make arrangements for the journey and was not to receive a substantial amount of money.  The bulk of the money paid by the passengers was received by others 'higher up the chain'.  The respondent was aged about 58 years when sentenced.  He was a poor Indonesian fisherman.  He had a relevant criminal history.  In August 1999, he was sentenced to 6 months' imprisonment, to be released on a recognisance after three months for five years, for bringing non-citizens to Australia.  In June 2000, he was sentenced to 3 years 4 months' imprisonment, suspended after 1 year 8 months, for bringing five or more people into Australia.  As to that offence, the respondent was the captain of a boat which carried 52 passengers to Australia in exchange for a payment in Indonesian currency of the equivalent of about $1,000.  The Court of Appeal of Queensland allowed the Crown's appeal and varied the sentence imposed upon the respondent at first instance by substituting a non-parole period of 4 years.

31. In R v Selu,[21] the respondent pleaded guilty to an offence under s 232A(1) of the Migration Act of facilitating the bringing or coming to Australia of a group of five or more people to whom s 42(1) of the Migration Act applied, and doing so reckless as to whether those people had a lawful right to come to Australia. The maximum penalty for the offence was 20 years' imprisonment or 2,000 penalty units or both. The mandatory minimum penalty was 5 years' imprisonment with a non‑parole period of at least 3 years. The respondent was sentenced to 6 years 6 months' imprisonment with a non‑parole period of 3 years. The Crown appealed against the non-parole period, contending that it was manifestly inadequate. The respondent, his co‑offenders Henuk and Magang, and a 17‑year‑old named Dollu, crewed a boat which brought 46 people from Indonesia to Australia. The respondent was the captain and Henuk the mechanic. The boat was intercepted by Australian authorities. The respondent was aged 66. He was a fisherman. The respondent had a prior conviction for people smuggling in 2001 in the Northern Territory. He was sentenced to 4 years' imprisonment, with release after 2 years, for that offence. A majority of the Court of Appeal of Queensland allowed the Crown's appeal and substituted a non‑parole period of 4 years. Fraser JA (Boddice J agreeing) said that the term of 6 years 6 months' imprisonment (which was not challenged) was not 'so lengthy or effective as a deterrent, general or special, as to justify the imposition of the mandatory minimum non‑parole period' [44]. His Honour considered that, viewed as a whole, the sentence imposed upon the respondent 'fell so short of the severity appropriate in all of the circumstances that it was manifestly inadequate' [44]. Boddice J observed that the respondent was a mature man. He had previously engaged in similar offending behaviour for which he had been sentenced to a significant term of imprisonment. The need for personal and general deterrence 'far outweighed any consideration of the respondent's personal circumstances' [48]. A non‑parole period 'substantially greater than the minimum provided for by the legislation' was necessary [48].

    [21] R v Selu; Ex Parte Director of Public Prosecutions (Cth) [2012] QCA 345.

1. We have also had regard to relevant aspects of the sentencing decisions in Karim and Haidari.

2. In the present case, the respondent's offending on each charge the subject of counts 1 and 7 was very serious. His offending on the charge the subject of count 14 was more egregious. Count 14 was a 'repeat offence' within s 236B of the Migration Act.  SIEV 260 was significantly larger than each of SIEV 38 and SIEV 41.  It carried about twice the number of passengers as each of the other boats.

3. A long term of imprisonment was the only appropriate sentencing disposition for each offence having regard to the circumstances and seriousness of the offending and the need for personal and general deterrence. See s 17A of the Crimes Act.

4. The respondent's criminality must be evaluated by considering his actions which constituted each offence and his role and authority in relation to the people smuggling the subject of each offence.

5. The trial judge classified the respondent as a person who had authority at a high level in a reasonably well‑organised enterprise.  The operation was reasonably sophisticated and the respondent's role was important.  The respondent carried out his role in relation to each boat by, amongst other things, meeting with numerous passengers; negotiating the price for their travel; accepting cash payments in United States dollars from numerous passengers; coordinating numerous passengers and arranging their accommodation and transport within Indonesia; and arranging for numerous passengers to embark on each boat.  The respondent's motive for committing each offence was financial gain.  He placed numerous passengers on overcrowded boats with an obvious danger to their health and safety. 

6. In our opinion, it is apparent that the respondent was a capable and efficient organiser or facilitator in the people smuggling industry.  The respondent's role in the hierarchy of culpability for people smuggling offences was higher than the role occupied by a captain or a crew member of a boat who does not have any role in the people smuggling activities apart from directing or assisting in the operation of the boat.

7. The respondent has not challenged any of his Honour's findings of fact.

8. The respondent's objective criminality in relation to each of counts 1, 7 and 14 was materially greater than the objective criminality of the offenders in Bahar, Karabi, Latif and Selu.  The respondent played a central role in organising and facilitating the arrival of passengers in Australia on board SIEV 38, SIEV 41 and SIEV 260.  His culpability was higher than the offenders in Bahar, Karabi, Latif and Selu.The role of the offenders in Bahar placed them at the very bottom level of the hierarchy of culpability.  The offender in Karabi had the mitigation of a plea of guilty.  He had a limited role in the organisation of the venture in addition to serving as the captain of the boat.  The offender in Latif pleaded guilty on the first day of his trial.  He was the navigator and deputy captain of the boat for most of its journey within Indonesia and from Indonesia to Australia.  He captained the boat on its last day at sea.  He did not make arrangements for the journey and was not to receive a substantial amount of money.  He did, however, have a relevant criminal history.  The offender in Selu had the mitigation of a plea of guilty.  He was the captain of the boat.  He does not appear to have had any involvement in the relevant people smuggling organisation apart from directing the operation of the boat.  He had previously engaged in similar offending behaviour.

9. The respondent was aged 27 years when he committed counts 1 and 7 and was aged 29 when he committed count 14.  He was not youthful or inexperienced for sentencing purposes.

10. The respondent was, of course, entitled to proceed to trial, but he could not claim the mitigation that pleas of guilty would have brought.

11. The fact that the respondent had a criminal history in Indonesia, and the fact that the sentence imposed on him in that country may not have achieved the purposes for which it was imposed, did not aggravate the seriousness of the offending the subject of counts 1, 7 and 14.  However, his criminal history indicated that the respondent was not entitled to any leniency on the ground that he was ordinarily of good character.

12. The principal mitigating factors were the continuing effects of the respondent's dysfunctional upbringing and deprived background; his symptoms of depression and, also, the 'symptoms likely to be reflective of Post‑Traumatic Stress Disorder' described by Ms Sampson in her report; the hardship that will be experienced by the respondent in serving a long term of imprisonment in a foreign country away from his family and with only a basic grasp of the English language; the respondent's ultimate (but belated) acceptance of his guilt; and his expressions of remorse in his letter dated 17 December 2017 to the trial judge.

13. The issue of manifest inadequacy in relation to the individual sentence for count 14 is concerned with 9 years' imprisonment and not the 8 years to which the individual sentence was reduced in the application of the totality principle.

14. In our opinion, the individual sentence for each of count 1 (6 years' imprisonment), count 7 (6 years' imprisonment) and count 14 (9 years' imprisonment, reduced to 8 years in the application of the totality principle) was not of a severity appropriate in all the circumstances of the offence. See s 16A(1) of the Crimes Act. Each individual sentence imposed on the respondent (before the application of the totality principle) was merely one year in excess of the mandatory minimum penalty, notwithstanding that, having regard to all relevant sentencing factors (including such of the matters set out in s 16A(2) of the Crimes Act as were relevant and known to the court), his offending in relation to each offence was significantly worse than the least serious category of offending.

15. We are satisfied, after evaluating and weighing all relevant facts and circumstances (including the trial judge's unchallenged findings of fact) and all relevant sentencing factors (including such of the matters set out in s 16A(2) of the Crimes Act as were relevant and known to the court) in the context of:

    (a)the applicable statutory sentencing framework;

    (b)the maximum penalty;

    (c)the mandatory minimum penalty;

    (d)the seriousness of the offending and its place, in the range between the least serious category of offending, for which the mandatory minimum penalty is appropriate, and the most serious category, for which the maximum penalty is appropriate;

    (e)the particular importance of personal and general deterrence as sentencing factors;

    (f)the general standards of sentencing revealed by prior cases with at least some features comparable to the respondent's offending; and

    (g)all matters of mitigation,

    that the individual sentence for each of counts 1, 7 and 14 was unreasonable or plainly unjust.  Each individual sentence was not merely 'lenient' or 'at the lower end of the available range'.  It was substantially less than the sentence that was open to his Honour on a proper exercise of his discretion.

16. Grounds 1, 2 and 3 have been made out.

17. As we will explain, we consider that, in the exercise of this court's discretion to resentence the respondent, a different and substantially longer individual sentence of imprisonment should be imposed for each of counts 1, 7 and 14. See s 31(4)(a) of the Criminal Appeals Act 2004 (WA).

Ground 4: counsel for the Crown's submissions

1. Counsel for the Crown submitted that the total effective sentence of 12 years' imprisonment and the non-parole period of 7 years 3 months failed properly to reflect the maximum penalties and the mandatory minimum penalties, the objective seriousness of the respondent's overall offending and the importance of personal and general deterrence.  It was submitted that the total effective sentence and the non-parole period were unreasonable or plainly unjust.

Ground 4: counsel for the respondent's submissions

1. Counsel for the respondent argued that the Crown had failed to establish that either the total effective sentence or the non-parole period was 'so far below an appropriate range of sentences for his [overall] offending conduct as to demonstrate error'.  Counsel asserted that the total effective sentence imposed was 'the appropriate term' (appeal ts 14).

Ground 4: its merits

1. Section 16A of the Crimes Act accommodates the application of the totality principle.  See Johnson [15]; Hili [25]. Section 16B of the Crimes Act requires a court sentencing a federal offender to have regard to any other sentences already imposed on the person.  See Postiglione v The Queen.[22]

   [22] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 308 (McHugh J).

2. The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.

3. The practical effect of the totality principle is ordinarily to arrive at a total effective sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual sentences.  See Roffey v The State of Western Australia.[23]  Also, the severity or leniency of an individual sentence (which is not manifestly excessive or manifestly inadequate) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle.  See Giglia v The State of Western Australia;[24] Gaskell v The State of Western Australia.[25]

   [23] Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA; Steytler P & Miller JA agreeing).

   [24] Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA; McLure & Pullin JJA agreeing).

   [25] Gaskell v The State of Western Australia [2018] WASCA 8 [54] - [59] (Buss P), [151] (Mazza & Beech JJA).

4. Section 19AB(1) of the Crimes Act provides, relevantly, that subject to s 19AB(3), where a person is convicted of two or more federal offences at the same sitting, and a court imposes on the person federal sentences of imprisonment that, in the aggregate, exceed 3 years, and at the time the sentences are imposed the person is not already serving or subject to a federal sentence, the court must fix a single non-parole period in respect of those sentences. Section 19AB(3) confers on the court a discretion, in particular circumstances, to decline to fix a non-parole period.

5. Where a sentencing judge fixes a non-parole period, the non-parole period is part of the sentence.  See R v Rajacic;[26] R v Hopkins;[27] R v Ruha; Ex parte Director of Public Prosecutions (Cth).[28]

   [26] R v Rajacic [1973] VR 636, 641 (Smith ACJ, Newton J agreeing).

   [27] R v Hopkins [2008] NTSC 15; (2008) 22 NTLR 125 [12] (Southwood J).

   [28] R v Ruha; Ex parte Director of Public Prosecutions (Cth) [2010] QCA 10; [2011] 2 Qd R 456 [45] (Keane & Fraser JJA & Atkinson J).

6. The non-parole period is the minimum period of imprisonment that justice requires the offender to serve.  It mitigates the offender's punishment in favour of rehabilitation through conditional freedom after imprisonment for the minimum period.  See Power v The Queen;[29] Deakin v The Queen;[30] Bugmy v The Queen.[31]

   [29] Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 628 ‑ 629 (Barwick CJ, Menzies, Stephen & Mason JJ).

   [30] Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367, 367 (Gibbs CJ, Murphy, Wilson, Brennan & Dawson JJ).

   [31] Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, 531 (Mason CJ & McHugh J), 536 (Dawson, Toohey & Gaudron JJ).

7. The fixing of a non-parole period serves the interests of the community rather than those of the offender, even though a minimum term confers a benefit on the offender.  See Bugmy (531).

8. The factors which a sentencing judge must take into account when fixing a non-parole period are the same as those applicable to the setting of the head sentence.  However, the weight to be given to these factors, and the manner in which they are relevant, will differ in consequence of the different purposes underlying each function.  See Bugmy (531).  Sentencing factors which count against mitigation may increase the length of the head sentence and also the proportion that the non-parole period bears to the head sentence.  The converse applies to sentencing factors in favour of mitigation.  See Lam v The Queen.[32] Any necessary deterrent and punitive effects of sentences for a particular offence must be reflected both in the head sentence and also in the non-parole period.  See Hili [41].

   [32] Lam v The Queen [2014] WASCA 114; (2014) 241 A Crim R 562 [56] - [57] (McLure P; Buss & Newnes JJA agreeing); applied in Stipkovich v The Queen [2018] WASCA 63 [34] (Mitchell & Beech JJA and Allanson J).

9. In Bick v The Queen,[33] Price J (Hodgson JA and Howie J agreeing) summarised the main factors which are relevant to the determination, in any case, of the appropriate ratio between the non-parole period and the head sentence.  His Honour said:

   Factors identified as material to the determination of the appropriate ratio for a non-parole period include the length of the head sentence and its position in the permissible range:  (see Bernier (1998) 102 A Crim R 44 (at 49) and Sweet (2001) 125 A Crim R 341 (at 346)), the seriousness of the offence and the prospects of rehabilitation (see Stitt (1998) 102 A Crim R 428 and Meloh [2001] NSW CCA 211 at [10]) and the need to ensure that the sentence reflects the criminality involved and does not lose the important significant effect of general deterrence (see Drazkiewicz unreported, Court of Criminal Appeal, NSW 23 November 1993).

   That passage was cited with approval in Bertilone v The Queen[34] and in Stipkovich [34].

   [33] Bick v The Queen [2006] NSWCCA 408 [15].

   [34] Bertilone v The Queen [2009] WASCA 149; (2009) 231 FLR 383 [33] (Buss JA; McLure & Miller JJA agreeing).

10. There is no judicially determined norm or starting point (whether as a percentage of the head sentence or otherwise) for the period of imprisonment that a federal offender should actually serve in prison before release on parole.  In particular, it is wrong to begin from some assumed starting point and then seek to identify 'special circumstances'.  Rather, a sentencing judge must determine the length of the non-parole period by reference to, and application of, the principles identified by the High Court in Power, Deakin and Bugmy.  See Hili [44]; Stipkovich [35].

11. In Lam [49], McLure P (Buss and Newnes JJA agreeing) explained the basis on which an intermediate appellate court should determine whether a non-parole period for a federal offence is manifestly excessive or manifestly inadequate:

    In determining whether a non-parole period is manifestly excessive (or inadequate) this court applies the same test it applies to head sentences, modified to take into account any statutory minimum or maximum.  In particular, the court has regard to any statutory limits on the available minimum period, the standards of sentencing customarily imposed for offences of the relevant type, the place which the criminal conduct occupies on the scale of seriousness and the antecedents of the offender:  Prestidge v The State of Western Australia [2014] WASCA 16; Rosewood v The State of Western Australia [2014] WASCA 21; Stinson v The State of Western Australia [2014] WASCA 72. Whether it be a challenge to the head sentence or a non-parole period, the standards customarily imposed provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind that there is scope for significant variations in relevant sentencing factors and no single correct sentence: Stinson [17]. It has also applied the principles approved in Hili to federal offences:  Bertilone v The Queen (2009) 231 FLR 383.

12. We are satisfied, after taking into account and evaluating all relevant facts and circumstances (including the trial judge's unchallenged findings of fact) and all relevant sentencing factors (including such of the matters set out in s 16A(2) of the Crimes Act as were relevant and known to the court) in the context of:

    (a)the applicable statutory sentencing framework;

    (b)the maximum penalty;

    (c)the mandatory minimum penalties;

    (d)the overall seriousness of the offending considered as a whole;

    (e)the particular importance of personal and general deterrence as sentencing factors;

    (f)the general standards of sentencing revealed by prior cases with at least some features comparable to the respondent's overall offending; and

    (g)all matters of mitigation,

    that the total effective sentence of 12 years' imprisonment was unreasonable or plainly unjust.  The total effective sentence was not merely 'lenient' or 'at the lower end of the available range'.  It was substantially less than the total effective sentence that was open to his Honour on a proper exercise of his discretion.

13. Further, we are satisfied, after evaluating and weighing all relevant facts and circumstances (including his Honour's unchallenged findings of fact) and all relevant principles relating to the fixing of a non‑parole period, in the context of:

    (a)the applicable statutory sentencing framework;

    (b)the maximum penalty;

    (c)the mandatory minimum non‑parole periods;

    (d)the overall seriousness of the offending considered as a whole;

    (e)the particular importance of personal and general deterrence as sentencing factors;

    (f)the general standards of sentencing revealed by prior cases with at least some features comparable to the respondent's offending; and

    (g)all matters of mitigation,

    that the minimum non‑parole period of 7 years 3 months was unreasonable or plainly unjust.  The interests of justice, in all the circumstances, required that the respondent serve a substantially longer non‑parole period than 7 years 3 months.  That is the only conclusion reasonably open.  The non‑parole period fixed by his Honour was not merely 'lenient' or 'at the lower end of the available range'.  It was substantially less than the non‑parole period that was open to his Honour on a proper exercise of his discretion.

14. Ground 4 has been made out.

15. As we will explain, we consider that, in the exercise of this court's discretion to resentence the respondent, a different and substantially longer total effective sentence and non‑period period should be imposed. See s 31(4)(a) of the Criminal Appeals Act. 

The outcome of the appeal and the resentencing of the respondent

1. Counsel for the respondent did not submit that the residual discretion under s 31(4) of the Criminal Appeals Act should be exercised.  The respondent does not, of course, bear an onus to establish that the residual discretion should be exercised in his favour.  Rather, it is incumbent on the State to negate any reason why the residual discretion of this court not to interfere should be exercised.  See CMB v Attorney General (NSW).[35]

   [35] CMB v Attorney General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [33] - [34] (French CJ & Gageler J) [66] (Kiefel, Bell & Keane JJ).

2. In our opinion, there is no basis, in the present case, for invoking the residual discretion.  As we have mentioned, the sentences and non‑parole period imposed by the trial judge were substantially less than those open on a proper exercise of the sentencing discretion.  Appealable error has been very clearly established.  This court's intervention is necessary to ensure that proper sentencing standards are adopted and maintained for the relevant offences.

1. We would allow the appeal.

2. His Honour's sentencing decision (including the sentences, the non‑parole period and the associated orders) should be set aside.

3. This court has the material necessary to resentence the respondent. After taking into account all relevant facts and circumstances (including the trial judge's unchallenged findings of fact) and all relevant sentencing factors (including such of the matters set out in s 16A(2) of the Crimes Act as are relevant and known to the court) in the context of:

   (a)the applicable statutory sentencing framework;

   (b)the maximum penalty;

   (c)the mandatory minimum penalties;

   (d)the seriousness of the offending;

   (e)the particular importance of personal and general deterrence as sentencing factors;

   (f)the general standards of sentencing revealed by prior cases with at least some features comparable to the respondent's offending; and

   (g)all matters of mitigation,

   we would sentence the respondent to 8 years' imprisonment for count 1, 8 years' imprisonment for count 7, 11 years' imprisonment for count 14, and impose a total effective sentence of 14 years' imprisonment.

4. Pursuant to s 19AB of the Crimes Act, and after taking into account all relevant facts and circumstances (including the trial judge's unchallenged findings of fact) and all relevant principles relating to the fixing of a non‑parole period, in the context of:

   (a)the applicable statutory sentencing framework;

   (b)the maximum penalty;

   (c)the mandatory minimum non‑parole periods;

   (d)the seriousness of the offending;

   (e)the particular importance of personal and general deterrence as sentencing factors;

   (f)the general standards of sentencing revealed by prior cases with at least some features comparable to the respondent's offending; and

   (g)all matters of mitigation,

   we would fix a non‑parole period of 9 years.

5. Pursuant to s 19(2) of the Crimes Act and s 41(3)(c) of the Criminal Appeals Act:

   (a)the new individual sentence for count 1 is to be taken to have taken effect on 8 May 2012;

   (b)the new individual sentence for count 7 is to be taken to have taken effect on 8 May 2012; and

   (c)the new individual sentence for count 14 is to be taken to have taken effect on 8 May 2015.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

DT
Associate to the Honourable Justice Mazza

24 APRIL 2019

Gummow, Kirby, Hayne & Callinan JJ).