R v Daoed - [2005] QCA 458

SUPREME COURT OF QUEENSLAND

CITATION:

R v Daoed [2005] QCA 458

PARTIES:

R
v
DAOED, Khaleed Shnayf
(applicant)

FILE NO/S:

CA No 203 of 2005
SC No 430 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 December 2005

DELIVERED AT:

Brisbane

HEARING DATE:

22 November 2005

JUDGES:

McPherson and Keane JJA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES - OTHER OFFENCES - where the applicant was charged with two counts of having aided the entry into Australia of persons without a legal right to do so in contravention of s 232A Migration Act 1958 (Cth) - where the applicant had helped arrange for a vessel to carry over 300 people to Australia from Indonesia - where this vessel sank with major loss of life - where the applicant was convicted after trial on one count but acquitted on the other - where the learned sentencing judge found that the applicant was not motivated by altruism and appreciated the dangers of the voyage - where the applicant had himself come to Indonesia as a refugee - where the applicant was sentenced to nine years imprisonment with a non-parole period of four and a half years - whether the sentence imposed on the applicant was manifestly excessive

Migration Act 1958 (Cth), s 232A, s 233C

Cita v R; Lamaha v R [2001] WASCA 5; (2001) 120 A Crim R 307, considered

R v Al Jenabi, unreported, Supreme Court of the Northern Territory, Mildren J, No 20302840 and No 20302843, 21 September 2004, considered

R v Ayoub, unreported, District Court of Western Australia, Nisbet DCJ, 16 December 2004, cited

R v Disun; R v Nurdin [2003] WASCA 47; (2003) 27 WAR 146, considered

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

COUNSEL:

G P Long for the applicant
G R Rice for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: I agree with the reasons of Keane JA for dismissing this application and with the additional comments of Mackenzie J.

The application for leave to appeal against sentence should be dismissed.

KEANE JA: Between 1 July 2001 and 19 October 2001, the applicant aided Abu Quassey to organise the proposed entry into Australia of more than 300 people, none of whom had a legal right to enter Australia, in circumstances in which Quassey was reckless as to whether those people had a right to enter Australia. The kind of activity in which the applicant and Quassey were involved is…

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 Daoed

Details

AGLC: R v Daoed [2005] QCA 458
Case: [2005] QCA 458
Decision Date: 9 December 2005

CaseChat Overview and Summary

The case of R v Daoed involved the applicant, who was convicted of aiding the entry into Australia of persons without a legal right to do so, in contravention of section 232A of the Migration Act 1958. The applicant had assisted in arranging for a vessel carrying over 300 people from Indonesia to Australia, which subsequently sank with significant loss of life. The applicant was convicted on one count but acquitted on the other following a trial. The sentencing judge determined that the applicant was not driven by altruistic motives and was aware of the dangers associated with the voyage. The applicant had previously come to Indonesia as a refugee. The sentencing judge imposed a sentence of nine years imprisonment with a non-parole period of four and a half years. The applicant subsequently sought leave to appeal against the sentence, arguing that it was manifestly excessive.

The central legal issue for the court was whether the sentence imposed on the applicant was manifestly excessive. The applicant's counsel argued that the sentence was too severe, considering the circumstances of the case and the applicant's background as a refugee. The court had to consider the principles of sentencing, the nature and circumstances of the offence, and the characteristics of the offender. The court was required to balance the need for punishment and deterrence against the need for proportionality and rehabilitation.

In assessing the applicant's appeal, the court considered various precedent cases, including Cita v R, R v Al Jenabi, R v Ayoub, R v Disun; R v Nurdin, and R v Feng Lin. The court noted that the applicant's role in facilitating the dangerous and unlawful voyage was significant, and that the applicant had not acted out of altruistic motives. The court also considered the significant loss of life that resulted from the voyage. After careful consideration of the relevant legal principles and precedents, the court determined that the sentence was not manifestly excessive. The court held that the sentence imposed was appropriate and proportionate to the gravity of the offence, taking into account all relevant factors.

The court dismissed the applicant's application for leave to appeal against the sentence. The court found that the sentence was fair and balanced, reflecting the seriousness of the offence and the applicant's role in facilitating it. The court emphasised the importance of upholding the law and the need for appropriate penalties for those who engage in such dangerous and unlawful activities. The court also noted the significant loss of life that resulted from the applicant's actions, which underscored the gravity of the offence. The applicant's appeal against the sentence was therefore dismissed.

Orders

Orders of the court

Application for leave to appeal against sentence dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Daoed [2005] QCA 458
PARTIES:	R v DAOED, Khaleed Shnayf (applicant)
FILE NO/S:	CA No 203 of 2005 SC No 430 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	9 December 2005
DELIVERED AT:	Brisbane
HEARING DATE:	22 November 2005
JUDGES:	McPherson and Keane JJA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES - OTHER OFFENCES - where the applicant was charged with two counts of having aided the entry into Australia of persons without a legal right to do so in contravention of s 232A Migration Act 1958 (Cth) - where the applicant had helped arrange for a vessel to carry over 300 people to Australia from Indonesia - where this vessel sank with major loss of life - where the applicant was convicted after trial on one count but acquitted on the other - where the learned sentencing judge found that the applicant was not motivated by altruism and appreciated the dangers of the voyage - where the applicant had himself come to Indonesia as a refugee - where the applicant was sentenced to nine years imprisonment with a non-parole period of four and a half years - whether the sentence imposed on the applicant was manifestly excessive Migration Act 1958 (Cth), s 232A, s 233C Cita v R; Lamaha v R [2001] WASCA 5; (2001) 120 A Crim R 307, considered R v Al Jenabi, unreported, Supreme Court of the Northern Territory, Mildren J, No 20302840 and No 20302843, 21 September 2004, considered R v Ayoub, unreported, District Court of Western Australia, Nisbet DCJ, 16 December 2004, cited R v Disun; R v Nurdin [2003] WASCA 47; (2003) 27 WAR 146, considered R v Feng Lin [2001] NSWCCA 7; (2001) 119 A Crim R 194, cited
COUNSEL:	G P Long for the applicant G R Rice for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent