R v Nitu

Case [2012] QCA 224

SUPREME COURT OF QUEENSLAND

CITATION:

R v Nitu [2012] QCA 224

PARTIES:

R
v
NITU, Ori
(appellant/applicant)

FILE NO/S:

CA No 334 of 2011
DC No 842 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

24 August 2012

DELIVERED AT:

Brisbane

HEARING DATE:

12 April 2012

JUDGES:

Holmes and Fraser JJA, Ann Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal dismissed.

2. Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – PARTICULAR CASES – where appellant convicted on plea of guilty for facilitating the bringing of non-citizens to Australia and sentenced to five years imprisonment with a three year non-parole period – where appellant appeals conviction on ground that primary judge erred in refusing to order permanent stay of proceedings as an abuse of process – where appellant contended that the proceedings should have been stayed as he was brought into the jurisdiction after being unlawfully detained – whether there was a miscarriage of justice

CONSTITUTIONAL LAW – THE NON-JUDICIAL ORGANS OF GOVERNMENT – THE LEGISLATURE – LEGISLATION AND LEGISLATIVE POWERS – EXAMINATION OF VALIDITY OF LEGISLATION BY COURTS – GENERALLY – where appellant contended that s 233C Migration Act 1958 (Cth) was not a valid law because it impermissibly interfered with the judicial sentencing discretion in a manner that distorted the institutional integrity guaranteed for all State courts by Chapter III of the Commonwealth Constitution – where the appellant contended that s 233C discriminated against “low level offenders” in favour of “higher level offenders” – whether s 233C was not a valid law

Commonwealth Constitution (Cth), Chapter III
Migration Act 1958 (Cth), s 232A, s 233C

Atherden v The State of Western Australia [2010] WASCA 33, considered
Bahar v The Queen (2011) 255 FLR 80; [2011] WASCA 249, considered
Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6, cited
Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; [2006] HCA 44, distinguished
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24, distinguished
Moevao v Department of Labour [1980] 1 NZLR 464, cited
Palling v Corfield (1970) 123 CLR 52; [1970] HCA 53, considered
R v Karabi[2012] QCA 47, considered
R v Moti (2010) 240 FLR 218; [2010] QCA 178, distinguished
R v Mullen [2000] QB 520; [2000] EWCA Crim 278, cited
R v Pot, Wetangky and Lande (unreported, NTSC, Riley CJ, 18 January 2011), not followed
Truong v The Queen (2004) 223 CLR 122; [2004] HCA 10, cited

COUNSEL:

A J MacSporran SC, with M J McCarthy, for the appellant
W J Abraham QC, with J N Hanna, for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director…

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AGLC
R v Nitu [2012] QCA 224
Case
[2012] QCA 224
Decision Date

CaseChat Overview and Summary

The appellant in this case was convicted for facilitating the bringing of non-citizens to Australia, following a guilty plea, and was sentenced to five years in prison with a non-parole period of three years. The appellant appealed the conviction, arguing that the primary judge erred in refusing to order a permanent stay of proceedings as an abuse of process. The appellant contended that the proceedings should have been stayed as he was brought into the jurisdiction after being unlawfully detained, leading to a miscarriage of justice. Additionally, the appellant argued that the relevant legislation was not a valid law because it interfered with judicial sentencing discretion and was discriminatory.

The court examined whether the primary judge's refusal to stay the proceedings was an abuse of process, considering whether the appellant's unlawful detention led to a miscarriage of justice. The court also assessed the validity of the legislation in question, specifically whether section 233C of the Migration Act 1958 (Cth) unconstitutionally interfered with judicial sentencing discretion and whether it was discriminatory. The court considered the arguments put forward by the appellant and the submissions from the prosecution.

The court found that the primary judge did not err in refusing to order a permanent stay of proceedings. The court held that there was no miscarriage of justice as the unlawful detention did not impact the fairness of the proceedings. Additionally, the court found that section 233C of the Migration Act 1958 (Cth) was a valid law and did not unconstitutionally interfere with judicial sentencing discretion nor was it discriminatory. The appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was refused.

Orders

Orders of the court

1. Appeal dismissed.

2. Application for leave to appeal against sentence refused.

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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