R v Mahendra - [2011] NTSC 57

The Queen v Mahendra [2011] NTSC 57
PARTIES: THE QUEEN

v
MAHENDRA

TITLE OF COURT:   SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:   SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:   21036001
DELIVERED:   29 July 2011
HEARING DATES:   11 July 2011, 13 – 20 July 2011
JUDGMENT OF:   BLOKLAND J
CATCHWORDS:

CRIMINAL LAW – Statutory Interpretation – whether the phrase ‘facilitates bringing to Australia’ attributes culpability for incomplete journeys – An incomplete journey can form the basis of the physical element of the offence
Duress – whether defence of duress was available on the evidence – accused need only satisfy the evidential burden – evidence that suggests a reasonable possibility that the matter exists or not – No evidence of threat prior to voyage commencing – No evidence accused could point to of duress
Migration Act (CW) s 233C, s 228A, s 236B, s 233(1), s 4,
Acts Interpretation Act (CW) s 15AA
Criminal Code Act (CW) s 5.6(1), s 5.6(2), s 10.2, s 13.3(b), s 10.2.3

Rutu v Ladjiluv Dalla Costa (1997) 93 A Crim R 425; applied
R v Saengsai-Or (2004) 61 NSW LR 135; followed
Reg v Singh (1972) WLR 1066; Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193; discussed
Odgers – Principles of Federal Criminal Law – Second Edition
REPRESENTATION:
Counsel:
Prosecution:   Mr Chris Beale
Accused:   Mr Simon Lee
Solicitors:
Prosecution:   Office of the Director of Public Prosecutions
Accused:   N/A
Judgment category classification:    B
Judgment ID Number:   BLO 1108
Number of pages:   17

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Mahendra [2011] NTSC 57

No. 21036001
BETWEEN:

THE QUEEN

Prosecution

AND:

MAHENDRA

Accused

CORAM: BLOKLAND J
REASONS FOR RULINGS
(Delivered 29 July 2011)
Introduction

An issue arose during the course of this trial on the construction of the offence known as “aggravated people smuggling”, charged under s 233C Migration Act (CW). The question was whether the phrase “facilitates the bringing to Australia” attributes culpability for incomplete journeys – in this case the non-citizens and the accused were intercepted prior to reaching Australia. Australian authorities completed the journey by bringing the non-citizens into Australia. At trial I ruled in favour of the construction advanced on behalf of the Crown allowing an uncompleted journey to form the basis of the physical element of the offence. I indicated I would give further brief reasons in addition to those discussed during the trial. These are the reasons.
Outline of the Crown Case
A number of significant facts were not contested. The accused, Mr Mahendra, with a Mr Suwandi, (who has already pleaded guilty and has been sentenced for the same offence) were fishermen living and working in Lombok, Indonesia. Mr Suwandi was the principal witness called on behalf of the Crown. In late May 2010 both Mr Mahendra and Mr Suwandi were working on a fishing boat and were approached by two persons who were strangers to them at that time. Those persons were Mohammed Abdullah…

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 Mahendra

Details

AGLC: The Queen v Mahendra [2011] NTSC 57
Case: [2011] NTSC 57
Decision Date: 29/07/2011

CaseChat Overview and Summary

The case of R v Mahendra involved the defendant being charged under section 233C of the Migration Act, which pertains to aggravated people smuggling offences involving the facilitation of the arrival of at least five non-citizens in Australia. The court had to determine whether the defendant's actions constituted a facilitation of bringing non-citizens to Australia, given that the journey was incomplete at the time of apprehension. Additionally, the court examined whether the defence of duress was available to the defendant, considering the evidential burden and the nature of the evidence presented.

The primary legal issues the court addressed were the interpretation of the phrase "facilitates bringing to Australia" within the context of an incomplete journey and the applicability of the duress defence. In terms of statutory interpretation, the court emphasised the need to construe the provision strictly due to the severe penalties associated with the offence. The court found that the term "facilitates" in the statute did not require the completion of the journey to Australia, and an incomplete journey could still form the basis of the offence. The court also noted that the accused had not demonstrated any evidence of duress prior to the commencement of the voyage, and thus, the defence was not available to him.

In its reasoning, the court held that the phrase "facilitates bringing to Australia" was not ambiguous and could apply to an incomplete journey. The court rejected arguments that the statutory provision should not be extended to cover incomplete journeys or that the accused had a defence of duress. The court found that the accused's actions facilitated the bringing of non-citizens to Australia, regardless of the incomplete nature of the journey. Consequently, the court found the accused guilty of the offence under section 233C of the Migration Act.

The court ordered the accused to be punished in accordance with the penalties prescribed by the statute, including imprisonment for 20 years or 2,000 penalty units, or both. The mandatory minimum sentence was set at 5 years imprisonment, with a non-parole period of at least 3 years.

Orders

Orders of the court

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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

In those circumstances, it was argued the accused could not be said to have facilitated bringing the persons to Australia. Both a proposed plea challenging jurisdiction and an argument couched in terms of excluding evidence obtained from the boarding as being against public policy were abandoned at the commencement of the trial. Some of the considerations relevant to those abandoned arguments resurfaced on the question of the construction of an offence against s 233C Migration Act (CW).Section 233C Migration Act (CW) Section 233C Migration Act (CW) provides:233C Aggravated offence of people smuggling (at least 5 people)(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. Given the significant penalties against s 233C Migration Act (CW), it is important the section be construed strictly. The theoretical maximum penalty is imprisonment for 20 years. Importantly, the mandatory minimum in the case of this accused is 5 years imprisonment with a mandatory minimum non parole period of at least 3 years.[1] If liberty is at stake, noting here the principle is somewhat magnified where there is no room for mitigation of penalty, strict interpretation is required. As was stated in Stevens v Kabushiki Kaisha Sony Computer Entertainment[2] “an appreciation of the heavy hand that might be brought down by the criminal law suggests the need for caution in accepting any loose, albeit “practical” construction…” Further, it is accepted a statute should not be extended to cover a particular situation where it is thought there is legislative omission. Ambiguities in such legislation ought to be resolved in favour of the liberty of the accused. While deferring to those fundamental principles, there is no reason to depart from the express words in this provision. In my view the choice of words “facilitates the bringing … to Australia” is not ambiguous. It was conceded on behalf of the accused that this part of the Migration Act applies extra-territorially. Section 228A Migration Act (CW) provides “This subdivision applies in and outside Australia”.[3]