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R v Abbas

R v Abbas

Case [2019] WASCA 64 24 April 2019

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Abbas

Details

AGLC: R v Abbas [2019] WASCA 64
Case: [2019] WASCA 64
Decision Date: 24 APRIL 2019

CaseChat Overview and Summary

The case of R v Abbas involved the respondent who was convicted for his role in facilitating the unlawful arrival of passengers in Australia on three separate occasions. The respondent was motivated by financial gain and was convicted of three separate offences, one of which was a repeat offence. The court sentenced the respondent to a total effective sentence of 12 years' imprisonment with a non–parole period of 7 years 3 months. The Crown appealed against the sentence, arguing that it was manifestly inadequate, and the High Court of Australia was asked to determine whether the sentence was indeed inadequate.

The legal issues before the court were whether the sentence imposed by the trial judge was manifestly inadequate and whether the mandatory minimum non–parole period should apply. The Crown argued that the sentence was manifestly inadequate, and the mandatory minimum non–parole period should apply. The respondent argued that the sentence was appropriate and that the mandatory minimum non–parole period should not apply.

The court found that the sentence was manifestly inadequate and that the mandatory minimum non–parole period should apply. The court held that the trial judge had erred in not imposing a sentence that reflected the seriousness of the offences and the need for general deterrence. The court also held that the mandatory minimum non–parole period should apply because the respondent's offences were serious and involved the unlawful arrival of passengers in Australia on three separate occasions. The court ordered that the respondent be re-sentenced with a non–parole period of 9 years.

Orders