Zangana v R (Cth) - [2015] NSWCCA 102

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Zangana v R (Cth) [2015] NSWCCA 102
Hearing dates: 26 March 2015
Decision date: 20 May 2015
Before: Hoeben CJ at CL at [1]
Adams J at [105]
McCallum J at [106]
Decision:
Leave to appeal granted.
Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – offences contrary to s233A of the Migration Act 1958 (Cth) facilitating the bringing or coming to Australia of a non-citizen person – whether error in inference drawn by sentencing judge – whether evidence sufficient to establish beyond reasonable doubt that offender was in part motivated by financial gain – despite error in reasoning, conclusion of sentencing judge correct – alternatively no lesser sentence warranted in law – appeal dismissed.
Legislation Cited: Crimes Act 1914 (Cth) – s16BA
Migration Act 1958 (Cth) – s233A
Cases Cited: Farkas v R [2014] NSWCCA 141
Ishac v R [2011] NSWCCA 107
Kentwell v The Queen [2014] HCA 37; 313 ALR 451
Khanwaiz v R [2012] NSWCCA 168
Muldrock v R [2011] HCA 39; 244 CLR 120
R v Michael Arthur Falls [2004] NSWCCA 335
R v Feng Lin [2001] NSWCCA 7; 119 A Crim R 194
Zammit v R [2010] NSWCCA 29
Category: Principal judgment
Parties: Fadhil Raghib Khana Zangana – Applicant
Regina (Cth) – Respondent Crown
Representation:
Counsel:
Ms J Hickleton – Applicant
Mr P McGuire - Respondent
Solicitors:
Uther Webster & Evans – Applicant
Commonwealth Director of Public Prosecutions – Respondent Crown

File Number(s): 2012/97207
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

28 February 2014

Before:

Arnott SC DCJ

File Number(s):

2012/97207

Judgment

HOEBEN CJ at CL:

Offences and sentence

On 17 October 2014 the applicant pleaded guilty to six offences contrary to s233A of the Migration Act 1958 (Cth) namely facilitating the bringing or coming to Australia of a non-citizen person reckless as to whether that person had a lawful right to come to Australia or not.

In addition to those offences, the applicant indicated his guilt for a further four offences under s233A, which he requested be taken into account on sentence, pursuant to s16BA of the Crimes Act 1914 (Cth).
The maximum penalty for each offence under s233A is imprisonment for 10 years.
The applicant was sentenced by his Honour Judge Arnott SC in the District Court on 28 February 2014 as follows:

Counts 1 and 2 – (taking into account the matters on the s16BA schedule) – imprisonment for 5 years and 4 months commencing 20 October 2012 and expiring 19 February 2018 with a non-parole period of 3 years and 6 months expiring 19 April 2016.

Counts 3 and 4 – imprisonment for 5 years and 4 months commencing 20 October 2012 and expiring 19 February 2018, with a non-parole period of 3 years and 6 months expiring 19 April 2016.

Counts 5 and 6 – a fixed term of imprisonment of 1 year and 10 months commencing…

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.

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Details

Case: [2015] NSWCCA 102
Decision Date: 20 May 2015

CaseChat Overview and Summary

In the case of Zangana v R (Cth), the appellant was convicted of offences under section 233A of the Migration Act 1958 (Cth) for facilitating the bringing or coming of non-citizens to Australia. The primary issue before the court was whether the sentencing judge erred in their inference regarding the appellant's motivation for committing these offences. Specifically, the court examined whether the evidence was sufficient to establish beyond reasonable doubt that the appellant was motivated by financial gain. The appeal further sought to determine whether, even if the sentencing judge's reasoning contained an error, the conclusion reached was correct, and whether a lesser sentence was warranted in law.

The court meticulously reviewed the evidence presented during the trial and the reasoning employed by the sentencing judge. It concluded that, although there were some discrepancies in the reasoning, the ultimate conclusion of the sentencing judge was correct. The court found that the evidence was indeed sufficient to support the inference that the appellant was at least partly motivated by financial gain. Additionally, the court determined that even if the reasoning had been flawed, the outcome was correct, and a lesser sentence was not warranted given the nature and gravity of the offences committed. Consequently, the appeal was dismissed.

The reasoning and outcome of the court were grounded in the substantial evidence presented and the weight it carried in establishing the appellant's motivation. The court maintained that the sentence imposed by the sentencing judge was appropriate and did not err in law. This decision underscores the importance of the motivation behind criminal acts in determining the appropriate sentence. The final orders of the court upheld the original sentence, thereby affirming the sentencing judge's decision.

Orders