R v Pulendren

[2010] NSWDC 335

CITATION:	R v Pulendren [2010] NSWDC 335
HEARING DATE(S):	02/09/10, 03/09/10, 10/09/10
JUDGMENT DATE:	20 September 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Tupman DCJ
DECISION:	Sentenced to a term of imprisonment of five and a half years commencing on 24 November 2009 and expiring on 23 April 2015 with a non-parole period of three years commencing on 24 November 2009 and expiring on 23 November 2012
CATCHWORDS:	CRIMINAL LAW - Commonwealth sentence - people smuggling Sri Lanka Tamil asylum seekers - S232A(1) Migration Act - mandatory prison term - early plea of guilty - disclosing offence to authorities - acting as local agent for broader people smuggling syndicate in Sri Lanka, Malaysia and Indonesia - financial gain motive - considering comparable people smuggling sentences - applying Commonwealth sentencing principles
LEGISLATION CITED:	Crimes Act 1914 Migration Act
CASES CITED:	Cita v R (2001) 120 A Crim R 307 R v Daoed (2005) 158 A Crim R 381 R v Disun (2003) 27 WAR 146 R v Al Jenabi [2004] NTSC 44
PARTIES:	Commonwealth DPP Pathmendra PULENDREN
FILE NUMBER(S):	2009/00056107
COUNSEL:	Mr P McGuire (CDPP)
SOLICITORS:	Mr M Cavanagh (for offender)

SENTENCE

HER HONOUR:
1. The offender is before me for sentence following his plea of guilty in the Local Court on 24 November 2009 to one count contrary to s 232A(1) of the Migration Act, which was then in force, namely, that between 1 February 2009 and 28 June 2009 at Pendle Hill, he facilitated the bringing or coming to Australia of a group of five or more people who had no lawful visa to enter Australia, he being reckless as to whether or not they had a lawful right to do so. It is the offence known as people smuggling.

2. Brought under these provisions of the Migration Act, there is a maximum penalty of twenty years imprisonment. Further, the legislature has seen fit to enact mandatory sentencing provisions for this offence. Section 233C of the Migration Act provides that, for a person in this offender’s position, there is a mandatory term of imprisonment of five years with a mandatory minimum non-parole period of three years. Further, s 233B of the Act prevents a judge from dealing with this offence pursuant to s 19B; namely without conviction. So, for any adult person who pleads guilty to this offence, or is convicted of it, notwithstanding his or her role in the offence, notwithstanding their own personal circumstances, or any other matter, a sentencing judge has no discretion but must impose a sentence of at least five years with a minimum non-parole period of at least three years.

3. Because he is being sentenced as a Commonwealth offender, I am required to have regard to the matters set out in Part 1B of the Crimes Act 1914, in particular s 16A. I accept that, in applying these provisions, a sentencing judge should herself operate under the governing principle in s 16A(1), which provides that “a court must impose a sentence…