Court of Criminal Appeal
New South Wales
Case Title: Bin Radimin v R; Bin Zakhria v R Medium Neutral Citation: [2013] NSWCCA 220 Hearing Date(s): 7 June 2013 Decision Date: 03 October 2013 Before: Hoeben CJ at CL at [1]
Hidden J at [106]
Fullerton J at [107]Decision: In relation to Grounds 1 and 2, grant leave to appeal but dismiss the appeal.
In relation to Ground 3 raised by the applicant, Agus Bin Radimin, leave to appeal refused.Catchwords: CRIMINAL LAW - conviction appeal - people smuggling - s233C Migration Act - appellants were crew on boat bound for Australia/Ashmore Reef from Indonesia with twenty three passengers - trial judge directed that the necessary intention was facilitating the bringing of people to Australia - whether necessary to establish that the immediate destination was part of Australia or only that the ultimate destination was Australia - mention of a particular destination does not create an additional element of offence - evidence established knowledge that ultimate destination was Australia - no misdirection - whether trial miscarried because summing up by a trial judge was unbalanced and unfair - extent to which trial judge required to set out each particular challenge to the evidence of each passenger - summary of evidence comprehensive - summing up not favouring either side - no objection to summing up made at trial - ground of appeal not made out - APPEAL AGAINST SENTENCE - whether sentence manifestly excessive - mandatory minimum head sentence and minimum non-parole period - no error identified - leave to appeal refused. Legislation Cited: Migration Act 1958 - s233C Cases Cited: Alomalu v R [2012] NSWCCA 255
Bahar v R [2011] 255 FLR 80
Domican v R [1992] HCA 13; 173 CLR 555
Healey v Regina [2006] NSWCCA 235
Huynh v The Queen [2013] HCA 6; 295 ALR 624
Karim & Ors v R [2013] NSWCCA 23
R v Karabi [2012] QCA 47
R v Latif; Ex parte CEPPP, [2012] QCA 278
R v Nitu [2012] QCA 224
R v Selu; Ex parte CDPP [2012] QCA 345
Sunada v R; Jaru v R [2012] NSWCCA 187
Taru Ali v R [2013] NSWCCA 211
The Queen v Ahmad [2012] NTCCA 1; 256 FLR 423
Vuni v R [2006] NSWCCA 171
Williams v R (1990) 50 A Crim R 213
Zamudin v R [2013] NSWCCA 120Category: Principal judgment Parties: Agus Bin Radimin - Applicant
Sahdan Effendi Bin Zakhria - Applicant
Regina - Respondent CrownRepresentation - Counsel: Counsel:
Mr P Boulten SC - Applicant Radimin
Mr S Corish - Applicant Zakhria
Ms W Abrahams QC - Respondent Crown- Solicitors: Solicitors: File Number(s): 2011/106459
2011/106460Decision Under Appeal - Before: Charteris DCJ - Court File Number(s): 2011/1064592011/106460
JUDGMENT
HOEBEN CJ at CL:
Offences and sentences
Each of the applicants was charged that they "facilitated the bringing or coming to Australia of a group of at least five persons, namely a group of 23 persons, who were non-citizens and who…
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Details
- AGLC
- Bin Radimin v The Queen; Bin Zakhria v The Queen [2013] NSWCCA 220
- Case
- [2013] NSWCCA 220
- Decision Date
CaseChat Overview and Summary
In the case of R v Zerafa, the appellants, Bin Zakhria and Bin Radimin, were members of the crew of a boat that was intercepted en route from Indonesia to Australia, carrying 23 passengers. The appellants were convicted of people smuggling under section 233C of the Migration Act and sentenced to lengthy prison terms. They appealed against their convictions and sentences, raising several grounds for appeal. The court was required to decide whether the trial judge had erred in directing the jury on the necessary intention for the offence, whether the trial had miscarried due to an allegedly unbalanced and unfair summing up by the trial judge, and whether the sentences imposed were manifestly excessive.
The court found that the trial judge's direction on the necessary intention for the offence was correct. The court held that it was not necessary to establish that the immediate destination was part of Australia, but rather that the ultimate destination was Australia. The evidence established that the appellants knew that the ultimate destination was Australia. The court also found that the trial judge's summing up was not unbalanced or unfair, and that the appellants had not objected to the summing up at the trial. The court further held that no specific error had been identified in the sentencing, and that the sentences reflected the distinction between the roles played by the appellants. The court found that the ground of manifest excess had not been made out.
The court refused leave to appeal against the convictions but granted leave to appeal against the sentences. However, the court dismissed the appeal against the sentences, finding that they were not manifestly excessive. The court upheld the convictions and sentences of the appellants.
The court found that the trial judge's direction on the necessary intention for the offence was correct. The court held that it was not necessary to establish that the immediate destination was part of Australia, but rather that the ultimate destination was Australia. The evidence established that the appellants knew that the ultimate destination was Australia. The court also found that the trial judge's summing up was not unbalanced or unfair, and that the appellants had not objected to the summing up at the trial. The court further held that no specific error had been identified in the sentencing, and that the sentences reflected the distinction between the roles played by the appellants. The court found that the ground of manifest excess had not been made out.
The court refused leave to appeal against the convictions but granted leave to appeal against the sentences. However, the court dismissed the appeal against the sentences, finding that they were not manifestly excessive. The court upheld the convictions and sentences of the appellants.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
In order to resolve that issue, it is necessary to examine more closely the relevant evidence of the passengers concerning what was said and done by the applicants.Evidence of the passengers Only four of the seven passengers gave evidence relevant to this issue. MAG said that he only spoke with the "Indonesian crew" on the "last days". He said that he communicated with the older man, who told him that he had lost his way. This evidence was given:"After the - the older guy said we lost and he tried to turn the steering wheel in different direction, but I saw the younger crew member told him "no, no, no don't do that". I understood he was saying this is the Australian water and the police was come. So I - he make him to stop, not to turn the boat back." (AB 360.23) Later it was established that MAG had said "federal police" in English in that answer (AB 361.35). Under cross-examination MAG confirmed that he had heard the word "lost" used by Bin Radimin in English (AB 390.26, .41, .48). In cross-examination MAG said:"Q. Of course, the conversation we're talking about, that we're referring to, is a conversation in which you say the older crewman of the Indonesian crewmen said something about being lost and the younger of the crewmen said something apparently in reply to that. This is the conversation we're talking about isn't it?A. Yes. When the older guy said "Look we lost" and he tried to turn the steering wheel and the younger crew member said "no, no, no federal police so don't turn".HIS HONOUR: Q: Said "no, no, no" what was the rest of the answer about federal police? Said "no, no, no".A. No, no, no. Federal police" pointed above.Q. Federal police and pointed above?WITNESS: Yeah.COUNSEL: Q: When you say that pointed above are you saying it's this younger crewman, the younger of the Indonesian crewmen who pointed above did he?A. Yeah, he pointed above the air and he said "federal police is coming"." (AB 399.8)"Q. ... You tell us this morning that you saw the younger crewman pointing up in the air at the time he was saying these words. Is that right?A. Yes when he was trying to turn the steering wheel and he just pointed above and he said "federal police coming. That's why we understood"." (AB 399.46) SMD said that he could not speak the crew's language. His evidence relevantly was:"Q. ... Did you ever have any discussion with the older crew member about what you believed the intended destination of Australia was for the voyage? Did you ever discuss that with the older crew member?A. Myself, I didn't discuss this much or I didn't talk about this matter with him but I heard other boys, they were talking about a destination or going to Australia with him. I heard that." (AB 455.7)"Q. ... Mr D, we left off on Friday. I wanted to ask you a question. Did you ever hear any person on the boat use the word or say the word "Australia" during the whole journey on the boat?A. Yes, yes.Q. So are you saying yes you did hear somebody say the word "Australia" on the boat?A. Yes.Q. Can you tell us who you heard using or saying the word "Australia"?A. Yes I heard this from both the crews. And especially from the younger one and while we were there on the boat a group of us were sitting there and the young one was saying that after I spent my sentence, after I get arrested and spend my sentence then I will go back to Indonesia and the money that I'm getting from this journey, I will use it to get married ...Q. Did you hear anyone else say the word "Australia"?A. Yes and especially after a few days, after three days, that we got lost in the water and other people who were pointing out, like in the sign language, asking and pointing to the clock, to their wrist watch, and saying that where is Australia, what's happening, and you said that you would get us to Australia in about three days and what's happening, where is Australia.Q. So are you saying that the passengers were saying this?A. The passengers were speaking to the crew and questioning them when they would get to Australia.Q. Did you ever hear the older man say the word "Australia" himself?A. Yes.Q. Was it on one occasion or more than one occasion?A. On multiple occasions ...Q. Was that from the - near the beginning of the time that you first boarded the boat or was it at a particular time through the journey, or was it throughout the journey?A. We were speaking, actually we were speaking and also the other people were speaking the word "Australia" from the time we got on board saying that how is the people of Australia and how the flag of Australia look like and all about matters related to Australia were the focus of the conversations. ...Q. My question if I wasn't clear Mr D, was I'm only talking about this last boat, the last boat that you were on that came to Australia?A. Yes I'm talking about this last boat, that these two people are the crew.Q. Thank you. You have made mention a little while ago about some money I think you said being paid or a reference to money by the younger man. Did you hear him say anything about the amount of money?A. He was doing his hand like this but once I finish my sentence I would go to prison for one year, after that I would go and get married for this money, but he did not mention about the sum of money.Q. You mentioned that he did his hand like this, I think. Can you describe how he did his hand, how he moved his hand?A. He said like he - he - he crossed his hands like this, then he pointed with the index finger one, and this finger, saying that one meaning one year, and at the same time he was showing his finger around the ring saying that he would get married." (AB 492.6 - AB 493.45)
Decision
Reasons for decision
HOEBEN CJ
I would refuse leave to appeal.Conclusion The orders which I propose are as follows:(1) In relation to Grounds 1 and 2 I would grant leave to appeal but I would dismiss the appeal.(2) In relation to Ground 3 raised by the applicant, Agus Bin Radimin, I would refuse leave to appeal. HIDDEN J: I agree with Hoeben CJ at CL. FULLERTON J: I agree with Hoeben CJ at CL.**********
Ratio Decidendi
Legal Principle Established
Established by: HOEBEN CJ
Bin Radimin submitted that the only difference between the function performed by him and Bin Zakhria was that he steered the boat and was older, otherwise there was no relevant distinction. He also submitted that by comparison with other cases which involved sentencing for offences contrary to s233C, this involved the smallest number of passengers, i.e. 23 and therefore the lowest level of criminality. The nearest case was R v Selu where the number of passengers involved was 46. He also relied upon the findings of the sentencing judge to the effect that both he and Bin Zakhria were at the bottom of the people smuggling hierarchy and had been regarded by their superiors as expendable.Consideration While one cannot help but feel considerable sympathy for both applicants, given the heavy sentences prescribed by s236B of the Act, and the considerations identified in Karim v R by Allsop P at [116] and [121], it is not possible to ignore sentencing principles and principles applicable to appeals based on a submission of "manifest excess". No specific error has been identified by the applicants. No challenge is made to the trial judge's factual findings. There was a real distinction between the roles played by Bin Radimin and Bin Zakhria, which was reflected in the money which they were paid. The difference in their sentences is small and reflects that distinction. I am not satisfied that this ground has been made out. I would refuse leave to appeal.Conclusion The orders which I propose are as follows:(1) In relation to Grounds 1 and 2 I would grant leave to appeal but I would dismiss the appeal.(2) In relation to Ground 3 raised by the applicant, Agus Bin Radimin, I would refuse leave to appeal. HIDDEN J: I agree with Hoeben CJ at CL. FULLERTON J: I agree with Hoeben CJ at CL.**********