Wamir v The Queen

[2011] NSWDC 152

District Court

New South Wales

Medium Neutral Citation:	WAMIR v R [2011] NSWDC 152
Hearing dates:	7 September 2011
Decision date:	07 September 2011
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	The appeal is allowed. The head sentence to be served concurrently is confirmed but the non parole period ordered by the magistrate is to be now one of ten months.
Catchwords:	CRIMINAL LAW - Conviction Appeal - People smuggling - Non-parole periods after Hili and Jones v The Queen.
Legislation Cited:	Migration Act Probation and Parole Act Sentencing Act Crimes (Sentencing Procedure) Act
Cases Cited:	Bugmy v R [1990] HCA 18; (1990) 169 CLR 525 Hili v The Queen; Jones v The Queen[2010] HCA 45 Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 R v Doan (2000) 50 NSWLR 115
Category:	Principal judgment
Parties:	Cen Wamir - Appellant The Crown - Respondent
Representation:	Legal Aid Commisison - Appellant Director of Public Prosecutions (Cth) - Respondent
File Number(s):	2011/00080213

Judgment

1. HIS HONOUR: Cen Wamir appeals against two sentences of imprisonment imposed upon him in the Local Court for offences which section 233A of the Migration Act insists are to be known as "people smuggling".

1. It is most unusual to find in an Act of Parliament an expression such as this: "An offence against subsection (1) is to be known as the offence of people smuggling." Now is not the time to speak at length about why it would be that parliament requires that the defence be described in that way beyond noting the highly unusual nature of such a provision. I can certainly say that when I look at the appropriate penalty for this offence I will not be influenced by that description; instead I will look at the nature of what the appellant did in determining the objective gravity of the offences.

1. What he did was , as the person in charge of a relatively small vessel, he brought two people to Australia who were not entitled to enter the country. Those people were introduced to the appellant in Indonesia. They clearly voluntarily went with the appellant on a relatively lengthy voyage from Indonesia to Australia. They were detected when the appellant approached a fishing vessel asking for assistance. Police were contacted, customs officers eventually found the vessel and the appellant was arrested.

1. The offences to which the appellant pleaded guilty are laid under s 233A of the Migration Act . It provides the maximum penalty of ten years imprisonment. The jurisdictional limit of two years applies where the matter is dealt with summarily, as this matter was. I was told that there is an aggravated form of that offence where five or more people are brought into the country. Where that occurs the mandatory minimum non parole-period is three years imprisonment.

1. As there were two people brought into the country by this appellant, he of course is not charged under the aggravated form of the offence.

1. It is important to note the difference…