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R v Karabi

R v Karabi

Case [2012] QCA 47 14 March 2012

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Karabi [2012] QCA 47

PARTIES:

R
v
KARABI, Dahlan
(applicant)

FILE NO/S:

CA No 252 of 2011
SC No 35 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

14 March 2012

DELIVERED AT:

Brisbane

HEARING DATE:

24 February 2012

JUDGES:

Muir, Fraser and Chesterman JJA
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 refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to the offence of facilitating the bringing to Australia a group of five or more people who were non-citizens and did not have visas in effect – where the applicant was sentenced to six and a half years imprisonment with a non-parole period of four years – whether the sentencing judge placed too much weight on the commercial aspects of the applicant’s conduct, the applicant’s involvement of his son, the applicant’s pre-departure actions, and deterrence – whether the sentence imposed was manifestly excessive

Crimes Act 1914 (Cth), s 16A
Migration Act 1958 (Cth), s 232A(1), s 233C

Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15, cited
Bahar v The Queen (2011) 255 FLR 80; [2011] WASCA 249, cited
R v Ahmad & Idrus (Deans DCJ, WA District Court, 11 December 2009, unreported), considered
R v Djoni (McMann DCJ, WA District Court, 17 December 2010, unreported), cited
R v Min, Suryanto & Salas (Blokland J, NTSC, 18 February 2011, sentencing remarks), not followed
R v Santoso, Wawan & Bin Seneman (Riley CJ, NTSC, 18 January 2011, sentencing remarks), not followed
R v Wetangky (Riley CJ, NTSC, 18 January 2010, sentencing remarks), not followed

COUNSEL:

M J McCarthy for the applicant
G R Rice SC for the respondent

SOLICITORS:

Fisher Dore for the applicant
Director of Public Prosecutions (Cth) for the respondent

MUIR JA: Introduction The applicant pleaded guilty to an offence under s 232A(1)[1] of the Migration Act 1958 (Cth) (“the Act”) of facilitating the bringing to Australia of a group of five or more people who were non-citizens and travelled to Australia without visas that were in effect and doing so reckless as to whether those people had a lawful right to come to Australia. He was sentenced in the Supreme Court on 19 August 2011 to six and a half years imprisonment with a non-parole period of four years. Six hundred and two days spent in pre-sentence custody were declared to be imprisonment already served under the sentence.
[1]Now encompassed within s 233C – Aggravated offence of people smuggling (at least 5 people).

The applicant seeks leave to appeal against the sentence on the grounds that it was manifestly excessive and on the further grounds, added by leave, that the sentencing judge erred:

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 Karabi

Details

AGLC: R v Karabi [2012] QCA 47
Case: [2012] QCA 47
Decision Date: 14 March 2012

CaseChat Overview and Summary

The case before the court was an appeal against sentence by the applicant, Karabi, who had pleaded guilty to the offence of facilitating the bringing to Australia of a group of five or more non-citizens without valid visas. The applicant was sentenced to six and a half years imprisonment, with a non-parole period of four years. The applicant contended that the sentence imposed was manifestly excessive, arguing that the sentencing judge had placed too much emphasis on the commercial aspects of the offence, the involvement of the applicant’s son, the applicant’s actions prior to departure, and the need for general deterrence. The appeal was brought before the court for the purpose of determining the correctness of the sentence.

The court was required to consider whether the sentence imposed was manifestly excessive, and if the sentencing judge had given undue weight to certain factors. The court considered the seriousness of the offence, the need for general deterrence, and whether the sentence was disproportionate to the crime committed. The court also evaluated whether the sentencing judge had correctly applied the principles of sentencing and whether the sentence imposed was within the range of sentences that could be considered appropriate.

The court found that the sentence imposed was within the range of sentences that could be considered appropriate for the offence committed. The court held that the sentencing judge had given proper consideration to all relevant factors and had not placed undue weight on any particular aspect of the offence. The court also found that the sentence was not manifestly excessive and that the applicant had not demonstrated that the sentence was disproportionate to the crime committed. The court held that the appeal against sentence should be dismissed and refused the application for leave to appeal.

The court's final order was that the application for leave to appeal against sentence was refused. The sentence imposed on the applicant remained unchanged.

Orders

Orders of the court

Application for leave to appeal against sentence refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Karabi [2012] QCA 47

Most Recent Citation

Jopar v The Queen [2013] VSCA 83

Cases citing this decision · 17 of 17 shown

R v Stiller
[2023] QCA 51

…2013] NSWCCA 23, cited R v Delzotto [2022] NSWCCA 117, considered R v Karabi (2012) 220 A Crim R 338; [2012] QCA 47, cited R v Latif; ex parte Cth DPP [2012] QCA 278, cited COUNSEL: B J Power KC, with B E McKenzie, for the applicant A C Freeman and A R Hughes for the respondent SOLICITORS: Lumme Rynderman Legal…
Hurt v The Queen
[2022] ACTCA 49 Para 1

…The Bahar approach was subsequently followed by the Queensland Court of Appeal in R v Karabi [2012] QCA 47; 220 A Crim R 338 ( Karabi ), R v Nitu [2012] QCA 224; [2013] 1 Qd R 459 ( Nitu ), R v Latif [2012] QCA 278 and R v Selu [2012] QCA 345 ( Selu ). Importantly, I note that no submissions were advanced in any…
R v Delzotto
[2022] NSWCCA 117 Para 33

…The Bahar approach has been applied to the minimum penalty provisions in the Migration Act by the Queensland Court of Appeal in R v Karabi [2012] QCA 47; (2012) 220 A Crim R 338; R v Nitu (2013) 1 Qd R 459; [2012] QCA 224; R v Latif: ex parte Cth DPP [2012] QCA 278; and by the Victorian Court of Appeal in DPP (C…
R v Hurt (No 2)
[2021] ACTSC 241 Para 1

…The decision in Bahar was followed by the Queensland Court of Appeal in R v Karabi [2012] QCA 47; 220 A Crim R 338, R v Nitu [2012] QCA 224; [2013] 1 Qd R 459 and R v Latif; ex parte Cth DPP [2012] QCA 278.…
Eldridge v The State of Western Australia
[2020] WASCA 66 Para 6

…ty, to be accommodated, though in a more compressed range, and with the consequence of a general increase in the levels of sentences. [31] R v Karabi [2012] QCA 47; (2012) 220 A Crim R 338 [35] (Muir JA, Fraser & Chesterman JJA agreeing). [32] R v Nitu [2012] QCA 224; (2013) 1 Qd R 459 [34] ‑ [35] (Fraser JA, Ho…
HPZB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2019] AATA 5402 Para 31

…derly immigration regime. The Respondent submitted that the offence is objectively serious, citing a number of authorities, for instance R v Karabi [2012] QCA 47, where Muir JA (Fraser and Chesterman JJA concurring) stated, at [21]: [people smuggling] threatens the orderly administration of immigration laws, imp…
The Queen v Deacon
[2019] NTCCA 22

…12, Noakes v The Queen [2015] NTCCA 7, R v Badanjak [2004] NSWCCA 395, R v Bednikov (1997) 193 LSJS 254, R v Heiss & Kamm [2009] NTSC 26, R v Karabi [2012] QCA 47, R v King (1988) 48 SASR 555, R v Latif [2012] QCA 278, R v Leach (2004) 14 NTLR 44, R v Nitu [2012] QCA 224, R v von Einem (1985) 38 SASR 207, R v W…
R v Abbas
[2019] WASCA 64 Para 6

…n 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; Ho…
Dui Kol v R
[2015] NSWCCA 150 Para 7

…ber of succeeding cases, in particular in Queensland: Bahar v The Queen [2011] WASCA 249; (2011) 45 WAR 100; 255 FLR 80; 214 A Crim R 417, R v Karabi [2012] QCA 47; (2012) 220 A Crim R 338; R v Nitu [2012] QCA 224; [2013] 1 Qd R 459; (2012) 269 FLR 216; (2013) 222 A Crim R 246; R v Latif; ex parte Cth DPP [2012]…
R v Rakiba Rakiba
[2014] ACTSC 373 Para 1

…0 at 377, that a consideration of general deterrence is also relevant in this matter. I have been referred to and rely on what was said by Muir JA in R v Karabi (2012) 220 A Crim R 338 at 343; [21] in the Court of Appeal of the Supreme Court of Queensland, where his Honour said:…
R v Zerafa
[2013] NSWCCA 220 Para 4

…His Honour noted, however, that there was authority to the contrary ( Bahar v R [2011] 255 FLR 80 and R v Karabi [2012] QCA 47). The effect of that authority is that s236B in effect provided that the minimum sentence for an offence under s233C was 5 years and the maximum was 20 years. Accordingly, an offence in…
Jopar v The Queen
[2013] VSCA 83

…[9][2012] QCA 47.…
Chenhall v Mosel
[2013] NTSC 19

…3) 178 CLR 193 R v Fenlon (1980) 71 Cr App R 307 R v Grant [1975] 2 NZLR 165 The Queen v Hancock [2011] NTCCA 14 R v Karabi [2012] QCA 47 M v The Queen (1994) 181 CLR 487 R v MAP [2006] QCA 220 R v Morrow (2009) 26 VR 527 Nominal Defendant v Clements (1960) 104 CLR 476 R v Oliver & Ors [2003] 2 Cr App R(S) 15 R…
Karim v The Queen
[2013] NSWCCA 23 Para 1

…The Queensland Court of Appeal has followed Bahar on three occasions: R v Karabi [2012] QCA 47, R v Nitu [2012] QCA 224 and R v Latif [2012] QCA 278.…
R v Selu; ex parte Director of Public Prosecutions (Cth)
[2012] QCA 345 Para 1

…s were imposed. These cases were useful in determining the sentencing range here. [6]Unreported, WA District Court, McMann DCJ, 17 September 2010. [7][2012] QCA 47.…
R v Latif; ex parte Director of Public Prosecutions (Cth)
[2012] QCA 278 Para 1

…Idrus & Ahmad [12] and R v Djoni .[13] [7]Unreported, Supreme Court of the Northern Territory, Riley CJ, 18 January 2010. [8][2011] WASCA 249. [9][2012] QCA 47. [10][2012] QCA 47. [11] R v Pot, Wetangky and Lande (supra). [12]Deanes DCJ, WA District Court, 11 December 2009, unreported. [13]McMann DCJ, WA Distric…
R v Nitu
[2012] QCA 224 Para 1

…to [56], in which McLure P quoted paragraphs from Atherden v The State of Western Australia upon which the appellant’s argument was based. [28][2012] QCA 47 at [34] – [36] per Muir JA, myself and Chesterman JA agreeing.…

View all 17 citing cases →

Cases cited in this decision · 2 of 2 shown

Bahar v The Queen
[2011] WASCA 249

…ecurities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15, cited Bahar v The Queen (2011) 255 FLR 80; [2011] WASCA 249, cited R v Ahmad & Idrus (Deans DCJ, WA District Court, 11 December 2009, unreported), considered R v Djoni (McMann DCJ, WA District Court, 17 December 2010, unreported),…
Australian Securities Commission v Marlborough Gold Mines Ltd
[1993] HCA 15

…A Migration Act 1958 (Cth), s 232A(1), s 233C Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15, cited Bahar v The Queen (2011) 255 FLR 80; [2011] WASCA 249, cited R v Ahmad & Idrus (Deans DCJ, WA District Court, 11 December 2009, unreported), considered R v Djoni (M…

Legislation cited in this decision · 2

Migration Act 1958 (Cth)
232A(1) 2 mentions (from Para 1)
Crimes Act 1914 (Cth)
16A 1 mention

CITATION:	R v Karabi [2012] QCA 47
PARTIES:	R v KARABI, Dahlan (applicant)
FILE NO/S:	CA No 252 of 2011 SC No 35 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	14 March 2012
DELIVERED AT:	Brisbane
HEARING DATE:	24 February 2012
JUDGES:	Muir, Fraser and Chesterman JJA 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 refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to the offence of facilitating the bringing to Australia a group of five or more people who were non-citizens and did not have visas in effect – where the applicant was sentenced to six and a half years imprisonment with a non-parole period of four years – whether the sentencing judge placed too much weight on the commercial aspects of the applicant’s conduct, the applicant’s involvement of his son, the applicant’s pre-departure actions, and deterrence – whether the sentence imposed was manifestly excessive Crimes Act 1914 (Cth), s 16A Migration Act 1958 (Cth), s 232A(1), s 233C Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15, cited Bahar v The Queen (2011) 255 FLR 80; [2011] WASCA 249, cited R v Ahmad & Idrus (Deans DCJ, WA District Court, 11 December 2009, unreported), considered R v Djoni (McMann DCJ, WA District Court, 17 December 2010, unreported), cited R v Min, Suryanto & Salas (Blokland J, NTSC, 18 February 2011, sentencing remarks), not followed R v Santoso, Wawan & Bin Seneman (Riley CJ, NTSC, 18 January 2011, sentencing remarks), not followed R v Wetangky (Riley CJ, NTSC, 18 January 2010, sentencing remarks), not followed
COUNSEL:	M J McCarthy for the applicant G R Rice SC for the respondent
SOLICITORS:	Fisher Dore for the applicant Director of Public Prosecutions (Cth) for the respondent