R v Latif; ex parte Cth DPP [2012] QCA 278

SUPREME COURT OF QUEENSLAND

CITATION: R v Latif; ex parte Cth DPP [2012] QCA 278

PARTIES: R v LATIF, Haji (respondent) EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS (appellant)

FILE NO/S: CA No 284 of 2011 / DC No 1048 of 2011

DIVISION: Court of Appeal

PROCEEDING: Sentence Appeal by Cth DPP

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 19 October 2012

DELIVERED AT: Brisbane

HEARING DATE: 20 July 2012

JUDGES: Fraser and Gotterson JJA and Mullins J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: **Appeal allowed.**The sentence imposed upon the respondent in the District Court is varied by substituting a non-parole period of four years for the period of three years imposed in the District Court.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where respondent pleaded guilty to having facilitated the bringing to Australia of a group of five or more people who were non-citizens and who travelled to Australia without visas that were in effect, and did so reckless as to whether those people had a lawful right to come to Australia – where respondent sentenced to six years imprisonment with a non-parole period of three years – where appellant argued sentence was manifestly inadequate – where appellant argued that sentencing judge adopted incorrect sentencing methodology – whether sentencing judge adopted incorrect sentencing methodology – whether sentence manifestly inadequate / CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS – where respondent argued unjust now to impose new sentence of the appropriate severity due to prosecutor’s failure to identify correct sentencing methodology in submissions to sentencing judge and respondent having served approximately 75 per cent of non-parole period – whether Court should exercise residual discretion to refuse Crown appeal / Migration Act 1958 (Cth), s 232A, s 233C / Bahar v The Queen (2011) 255 FLR 80; [2011] WASCA 249, followed / Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, considered / Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10, cited / R v Karabi [2012] QCA 47, followed / R v Major; ex parte A-G (Qld) [2012] 1 Qd R 465; [2011] QCA 210, considered / R v Pot, Wetangky and Lande (unreported, Riley CJ, NTSC, 18 January 2010), not followed / R v Ruha, Ruha and Harris; Ex parte Director of Public Prosecutions (Cth) [2011] 2 Qd R 456; [2010] QCA 10, considered

COUNSEL: W J Abraham QC, with D R Kent, for the appellant / M J McCarthy for the respondent

SOLICITORS: Commonwealth Director of Public Prosecutions for the appellant / Fisher Dore Lawyers for the respondent

FRASER JA: The respondent was charged with an offence contrary to s 232A(1) of the Migration Act 1958 (Cth) that he facilitated the bringing to Australia of a group of five or more people, namely a group of 31 people, who were non-citizens and who travelled to Australia without visas that were in effect, and did so reckless as to whether those people had a lawful right to come to Australia. A week before the trial was due to commence the respondent indicated that he would plead guilty to the offence. He entered that plea on 20 September 2011, the first day of the trial. He was sentenced on 26 September 2011.
When the respondent committed the offence, s 233C provided that:

“(1)This section applies if a person is convicted of an offence under section 232A or 233A, unless it is established on the balance of probabilities that the person was aged under 18 years when the offence was committed.

(2)The court must impose a sentence of imprisonment of at least:

(a)8 years, if the conviction is for a repeat offence; or

(b)5 years, in any other case.

(3)The court must also set a non-parole period of at least:

(a)5 years, if the conviction is for a repeat offence; or

(b)3 years, in any other case.

(4)In this section:

(a)non-parole period has the same meaning as it has in Part IB of the Crimes Act 1914; and

(b)a person’s conviction for an offence is for a repeat offence if, on a previous occasion after the commencement of this section, a court:

(i)has convicted the person of another offence, being an offence against section 232A or 233A; or

(ii)has found, without recording a conviction, that the person had committed another such offence.”

The respondent had relevant previous convictions, but this was not a “repeat offence” as defined in s 233C(4)(b) of the Act. Accordingly, the mandatory minimum penalty for the respondent’s offence was imprisonment of five years with a non‑parole period of three years. The respondent was sentenced to six years imprisonment with a non-parole period of three years, with a declaration that the sentence commenced on 11 April 2010 and that the 534 days during which the respondent was held in pre-sentence custody between 11 April 2010 and 26 September 2011 constituted time already served under the sentence.
The Director has appealed against that sentence on the following grounds:

“1.The sentencing judge erred in imposing a sentence which was manifestly inadequate;

2.The sentencing judge did not give sufficient weight to the need for general and personal deterrence;

3.The sentencing judge did not give sufficient weight to the defendant’s prior convictions.

4.The sentencing judge erred in determining the sentence to be imposed by adopting the reasoning process outlined in The Queen v Amirula Pot, Yusak [Wetangky] and Alosisus Lande, an unreported decision of the Supreme Court of the Northern Territory, Riley CJ, 18 January 2010.”

Circumstances of the offence and the respondent’s personal circumstances

On 11 April 2010, a naval ship intercepted a vessel which brought 31 passengers from Indonesia into Australia. The passengers were all non-citizens without visas. The respondent navigated the vessel within Indonesia to the place where the 31 passengers and a man who took over the control of the vessel came on board during the night. The sentencing judge accepted a submission by the respondent’s counsel that the respondent originally agreed to board the vessel after it was represented to him that the vessel was shifting freight. The judge observed that, “…you elected, as you had no other choice, to stay on board and perform the functions you performed”. That was a reference to counsel’s submission that when the respondent realised that the vessel would be taking the passengers to Australia he considered that “…he was not in a position in his mind to resist” and “…made the poor choice under those pressures to remain on the boat rather than chance the opportunity of getting off.” The respondent acted as a deputy captain of the vessel for about four days of its journey to Australia before the man in control left the vessel. The respondent then took charge for the last day of the voyage before the vessel was intercepted within Australian waters. The respondent’s counsel submitted that the respondent “…doesn’t suggest that he hasn’t chosen, and he is pleading guilty to having continued with the venture, but … there was little opportunity for him … to easily get out of what he found himself in … [h]e did continue … steering the vessel and it is on that basis that he pleads guilty.” The sentencing judge also accepted that the respondent did not make arrangements for the voyage and was not to receive a substantial sum of money. The bulk of the money paid by the passengers was received by others “higher up in the chain”.
The respondent was a poor Indonesian fisherman. He was about 58 years old when he was sentenced. He had a relevant criminal history. In August 1999, he was sentenced to six months imprisonment, to be released on a recognizance after three months for five years, for an offence of bringing non-citizens to Australia. In June 2000, he was sentenced to three years and four months imprisonment, suspended after one year and eight months, for an offence of bringing five or more people into Australia. In that offence, the respondent was the master of a vessel which carried 52 passengers to Australia in exchange for a payment of five million Indonesian rupiah (the equivalent of about $1,000).
A co‑offender, Razak, was sentenced on the same occasion. Razak was the cook on the vessel. He too was in poor circumstances, but he had no previous convictions. Razak did not plead guilty, but the sentencing judge took into account that there was considerable co-operation on his part in the conduct of the trial, including relevant admissions. Like the respondent, Razak was not to receive a substantial sum of money and was not involved in making arrangements for the voyage. He was given the mandatory minimum penalty of five years imprisonment with a non-parole period of three years.

The arguments at the sentence hearing

There was no dispute at the sentence hearing that the sentencing judge was required to have regard to the matters set out in Pt 1B of the Crimes Act 1914, including the factors set out in s 16A,¹ but there was a dispute about the significance of the mandatory minimum penalty. The prosecutor submitted that the mandatory minimum penalty was a “baseline for calculation of the appropriate sentence” and a “starting point for the least serious of these types of offences.”² The prosecutor referred to the respondent’s two previous convictions and to the circumstance that Razak, having exercised his right to trial, could not enjoy the benefits of the high degree of co-operation demonstrated by a plea of guilty, and submitted that their offences were not “at the lowest end of the scale of seriousness”; a sentence in excess of the mandatory minimum sentence was called for in both cases. The prosecutor referred the sentencing judge to other sentencing decisions and submitted that the sentencing judge might consider that a sentence in the range of five and a half to six years imprisonment with a non-parole period of three and a half to four years was appropriate for Razak and that a sentence in the range of six years imprisonment with a non-parole period of four years was appropriate for the respondent.
Razak’s counsel and the respondent’s counsel contested the prosecutor’s submission as to the appropriate sentencing methodology. Counsel for Razak referred the sentencing judge to R v Sali and Irawan, in which Byrne SJA adopted the sentencing methodology approved by Riley CJ in R v Pot, Wetangky and Lande.³ Riley CJ held that the correct approach was, first, to determine an appropriate sentence by applying the sentencing principles set out in the Crimes Act and those applicable at common law, and, secondly, if that notional sentence was less than the mandatory minimum prescribed by s 233C of the Migration Act, to impose that mandatory minimum sentence. Razak’s counsel analysed the sentences cited by the prosecutor and submitted that there was no proper basis for imposing a sentence in excess of the mandatory minimum sentence. The respondent’s counsel submitted that the mandatory minimum penalty was not a “…statutory cut off…” or “…an indication of a place where your Honour should start in determining the sentence”; whilst the mandatory minimum fixed the penalty for offenders at the lowest end of the range of offending, it did not provide a guide for the formulation of a sentence in respect of persons whose offending was somewhat more serious. The respondent’s counsel analysed the relevant circumstances, referred to the sentencing decisions cited by the prosecutor, accepted that the head sentence proposed by the prosecutor was appropriate, but argued that the sentencing judge had a discretion to impose a non-parole period which was close to the statutory minimum non-parole period of three years.

Sentencing remarks

The sentencing judge referred to the recognition in earlier cases that unlawful entry into Australia was a violation of the nation’s sovereignty and had considerable potential for harm and wasteful inconvenience before and after interception of the vessel. It frustrated Australia’s legislative and administrative system for dealing in an orderly way with non-citizens, including refugees, who wished to come to Australia. The sentencing judge referred to evidence that the passengers were treated well, and that there was food, fuel and lifejackets onboard the vessel. The prosecutor submitted that this type of offending had “…significantly increased in the last two years”, and that the “increasing prevalence” of the offending supported the need for a strongly deterrent penalty.⁶ The respondent’s counsel tendered evidence at the sentencing hearing, in the form of a parliamentary library background note entitled “Boat arrivals in Australia since 1976”. The sentencing judge found that he was unable to resolve this factual dispute and observed that he would not sentence on the basis that there was a prevalence of the offence.
The sentencing judge referred to the submission that he should not proceed on the basis that the minimum mandatory sentence was “a base point” and observed:

“I adopt the reasoning of his Honour Mr Justice Byrne in R v Sali and Ferry Irawan, 15 April 2011, where his Honour adopted the reasoning of Chief Justice Reilly [sic] in R v Potts [sic], 18 January 2010.”

After referring to the circumstances of the offence and the respondent’s personal circumstances, the sentencing judge expressly took into account the respondent's plea of guilty and his co-operation with the administration of justice.

The arguments in the appeal

The Director argued that the imposition of the mandatory minimum non-parole period rendered the sentence manifestly inadequate and that the sentencing judge’s adoption of the sentencing methodology outlined in RvPot, Wetangky and Lande⁷ was inconsistent with Bahar v The Queen,⁸ which was followed in R v Karabi,⁹ decisions which were delivered after the respondent was sentenced. It was submitted that, applying the methodology in the latter decisions, the three year non-parole period was manifestly inadequate, particularly having regard to the respondent’s prior convictions and the need for general and personal deterrence. The Director relied upon the sentences imposed in R v Karabi,¹⁰ R v Wetangky,¹¹ R**v Idrus & Ahmad¹² and R v Djoni.¹³
The respondent submitted that the sentencing judge adopted the reasoning in RvPot only in relation to the sentence imposed upon Razak, and that in the respondent’s case, where the offence was towards the lower end of the range of culpability but not within the “least serious category” of offending, the sentencing judge’s methodology was not materially inconsistent with R v Karabi. The respondent relied upon the reference by McLure P in Bahar v The Queen¹⁴ to Wheeler JA’s conclusion in Atherden v The State of Western Australia¹⁵ that a result of the mandatory minimum term is “…a compression of sentences towards the lower end of the range, with offences at the bottom of the range of culpability treated effectively in the same way as those which are towards the lower end, but not at the extreme lower end, of culpability.” The respondent argued that the sentence was in any event within the sentencing discretion, albeit at the lowest end of the range. It was submitted that the head sentence of six years, for which the Director submitted at the sentence hearing and does not now challenge, sufficiently reflected the seriousness of the offending and the need for deterrence. The respondent argued that the sentencing decisions upon which the Director relied did not support the contention that the sentence was inadequate. The respondent advanced an alternative argument that the appeal should be refused in the exercise of what was submitted to be the Court’s residual discretion to refuse an appeal against the inadequacy of sentence where that is necessary to prevent injustice.

Consideration

In this appeal the Director of Public Prosecutions (Cth) exercises the right of appeal conferred upon the Attorney-General by s 669A of the Queensland Criminal Code.¹⁶Section 669A(1) confers upon the Court an “unfettered discretion” to vary the sentence if it is established that the sentencing judge erred in the exercise of the sentencing discretion.¹⁷
The notice of appeal alleges four errors. The allegation of manifest inadequacy in ground 1 of the notice of appeal raises the question whether, having regard to all of the matters which are relevant to fixing the sentence, the sentence is “unreasonable or plainly unjust” such that it should be inferred that there has been a failure properly to exercise the sentencing discretion, even though the nature of the error is not discoverable.¹⁸ Appellate intervention is not justified on this ground merely if the sentence is markedly different from sentences in other cases; it is justified only if the difference is such as to demonstrate that there must have been a misapplication of principle even though that is not apparent from the sentencing remarks.¹⁹ Grounds two and three in the notice of appeal allege that the sentencing judge gave insufficient weight to the need for general and personal deterrence and to the respondent’s prior convictions. Neither ground alleges an error of principle, or that the sentencing judge took into account extraneous or irrelevant matters, or that the sentencing judge mistook the facts or failed to take into account material considerations. In the way in which the respondent’s argument was put, grounds two and three instead amounted to possible explanations for the allegation in ground 1 that the sentence was manifestly inadequate, but that ground implies that the sentencing judge misapplied some principle in a way which is not apparent from the sentencing remarks. Grounds two and three therefore could not justify the Court in setting aside the sentence.²⁰ Ground four asserts that the sentencing judge acted upon a wrong sentencing principle. If so, the sentence should be reviewed and the Court may exercise its own discretion in substitution for that sentence.²¹
Ground four should be upheld for the following reasons.

“[34]In R v Pot, Wetangky and Lande, [Unreported, Northern Territory Supreme Court, 18 January 2011 (Riley CJ)] Riley CJ held that the correct approach was to determine the appropriate penalty in accordance with general sentencing principles and, if that produced a sentence which was less severe than the minimum mandatory penalty, to impose the mandatory minimum. That decision was not followed in Bahar v The Queen, [[2011] WASCA 249 at [56]] in which McLure P, with whose reasons Martin CJ and Mazza J agreed, formulated the following principles:

‘The statutory language makes it unequivocally clear that the Commonwealth Parliament intended to deprive a judicial officer sentencing an offender for a breach of s 232A of both the power to impose a non-custodial sentence and the power to impose a sentence of less than 5 years. Thus, s 233C is positively inconsistent with s 17A of the Crimes Act which requires that consideration be given to different types of sentence. However, the later, specific provision (s 233C) must prevail.

Otherwise, there is no positive inconsistency in terms between s 233C and the general sentencing principles in the Crimes Act as supplemented by common law principles. In particular, the sentencing principles are intentionally framed at a level of generality for application within the boundaries of power established not only by the maximum statutory penalty but also the minimum statutory penalty. The statutory maximum and minimum also dictate the seriousness of the offence for the purpose of s 16A(1). It would be positively inconsistent with the statutory scheme for a sentencing judge to make his or her own assessment as to the ‘just and appropriate’ sentence ignoring the mandatory minimum or mandatory maximum penalty and then to impose something other than a ‘just and appropriate’ sentence (whether as to type or length) in order to bring it up to the statutory minimum or down to the statutory maximum, as the case may be. The statutory minimum and statutory maximum penalties are the floor and ceiling respectively within which the sentencing judge has a sentencing discretion to which the general sentencing principles are to be applied.

The suggestion by the Crown to the sentencing judge that the mandatory minimum is for a low level offence in which all mitigating factors are present reflects a lack of understanding of the sentencing process. First, the minimum penalty is for offences within the least serious category of offending and the maximum penalty is for offences within the worst category of offending. I emphasise ‘category’ of offending. There is no single instance at either extreme. Secondly, whether an offence falls within the least serious category is to be determined by reference to all relevant sentencing considerations, including matters personal to the offender. As I have explained above, a sentencing outcome (the ‘bottom line’) is not dictated by the presence or absence of one or more mitigating factors.

Thirdly, as this court has previously recognised, a mandatory minimum term of imprisonment can create complications for reductions in sentence for mitigatory factors. For example, on occasions it will not be possible to allow a usual discount for a mitigatory factor, such as a plea of guilty: Teakle v The State of Western Australia (2007) 33 WAR 188 [19]. As Wheeler JA explained in Atherden v The State of Western Australia [2010] WASCA 33:

[I]n relation to at least some offences which fall towards the lower end of the range of culpability, the presence of a minimum term makes it impossible for a sentencing judge to apply the quantum of discount for a plea of guilty which he or she would ordinarily apply, because to do so would mean that the sentence imposed would fall below the statutory minimum. Where an offence is right at the bottom of the range of culpability, it may be that no discount at all can be given, for the same reason.

However, I do not think it follows that the principles governing the awarding of a discount for a plea of guilty cease to apply in cases where there is a statutory minimum term. Rather, the result will be that there is a compression of sentences towards the lower end of the range, with offences at the bottom of the range of culpability treated effectively in the same way as those which are towards the lower end, but not at the extreme lower end, of culpability.

These considerations will have a flow on effect on the application of the parity principle.

Where there is a minimum mandatory sentence of imprisonment the question for the sentencing judge is where, having regard to all relevant sentencing factors, the offending falls in the range between the least serious category of offending for which the minimum is appropriate and the worst category of offending for which the maximum is appropriate. The sentencing judge in this case did not err in refusing to identify a starting point at some level above the mandatory minimum so as to enable discounts for common mitigating factors. The sentencing judge was correct to reject the Crown’s submission that he should do so. To choose a starting point at a sufficiently high level solely for the purpose of accommodating reductions for all potential mitigating factors offends the proportionality principle and treats the mere absence of mitigating factors as having an aggravating effect. In any event, the two-stage approach to sentencing is not supported by the High Court: Markarian (378); Muldrock [[2011] WASCA 249 at [53] – [58]].’

[35]The submission for the appellant that s 233C results in a ‘compression of sentences’ in a way which inappropriately discriminates against low level offenders was ultimately based upon three paragraphs in Wheeler JA’s reasons in Atherden v The State of Western Australia. [[2010] WASCA 33 at [42] – [44]. The case concerned the sentencing principles relating to a discount for a plea of guilty to an offence of murder under s 279(4) of the Criminal Code (WA). Section 90 of the Sentencing Act 1995 (WA) required, for a sentence of life imprisonment, that the court either set a minimum period of at least ten years to be served by the offender before being eligible for release on parole or that the court order that the offender must never be released.] The first two paragraphs were incorporated in McLure P’s reasons in Bahar in the passage just quoted. In the third paragraph, Wheeler JA observed:

‘While such compression may engender some feeling of grievance in those offenders whose culpability is at the bottom end of the range, and who receive no discount for even the earliest plea of guilty, the result does not seem to me to be so unreasonable as to implicitly require departure from the general principles governing discounts for pleas of guilty. Sentencing is not an exact science, and there is not, in every case, a smooth, linear progression of sentence, with sentences gradually increasing in a manner which is proportionate to the gravity of the crime: see, for example, The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129.’

[36]In R v Karabi [[2012] QCA 47 at [34] – [36] per Muir JA, myself and Chesterman JA agreeing.] this Court held that the correct approach to sentencing for an offence against s 232A(1) was as set out in [53] – [55] of McLure P’s reasons in Bahar v The Queen, but the Court did not refer to [56], in which McLure P quoted paragraphs from Atherden v The State of Western Australia upon which the appellant’s argument was based.

[37] To summarise the position, R v Karabi adopted the principles expressed in Bahar v The Queen that ‘the statutory minimum and statutory maximum penalties are the floor and ceiling respectively within which the sentencing judge has a sentencing discretion to which the general sentencing principles are to be applied’, [Bahar v The Queen [2011] WASCA 249 at [54].] ‘the minimum penalty is for offences within the least serious category of offending and the maximum penalty is for offences within the worst category of offending’ [Bahar v The Queen [2011] WASCA 249 at [55]], and ‘whether an offence falls within the least serious category is to be determined by reference to all relevant sentencing considerations, including matters personal to the offender.’ [Bahar v The Queen [2011] WASCA 249 at [55]]

[38]In Veen v The Queen [No 2], [(1988) 164 CLR 465 at 478] Mason CJ, Brennan, Dawson and Toohey JJ referred to the principle that a prescribed maximum penalty is intended for the ‘worst category of cases for which that penalty is prescribed’, observing that a sentence which imposes the maximum penalty offends that principle only if the case is ‘recognizably outside the worst category’. It follows that, within the ‘worst category’, one offender might be given the same penalty for offending which is more or less serious than offending by a different offender. The sentencing principles expressed in Bahar v The Queen and adopted in R v Karabi treat statutory maximum and minimum penalties as being alike in this respect. Perhaps the ‘compression of sentences towards the lower end of the range’ to which Wheeler JA referred in Atherden v The State of Western Australia should merely be regarded as a reflection of that conventional categorisation of offences. But whether or not that is so, I respectfully observe that the application of those sentencing principles should not produce a range of sentences which involves any significant ‘compression’ attributable to a difficulty in allowing for a discount for a plea of guilty. Matters which are ‘personal to the offender’ and justify a discount in the sentence comprehend a plea of guilty, insofar as the plea reflects a willingness to facilitate the course of justice, remorse, and acceptance of responsibility. [Cameron v The Queen (2002) 209 CLR 339 at 343[13] per Gaudron, Gummow and Callinan JJ] If the significance of a plea might be thought to extend beyond matters personal to the offender, for example if it is treated as having a purely utilitarian value which justifies a discount in the sentence, the principle expressed in Bahar v The Queen that all relevant sentencing considerations are to be taken into account in deciding whether an offence falls within the least serious category allows reference to a plea of guilty, just as it allows reference to all other relevant considerations.”

The prosecutor’s submission to the sentencing judge that the mandatory minimum penalty was “…the starting point for the least serious of these types of offences” was inaccurate because it overlooked the necessity to categorise the offending having regard, not only to the seriousness of the offence, but to all of the considerations relevant to sentence. The minimum penalty is reserved for the least serious “category of offending”.²⁵ It may be imposed if the case is not recognisably outside the least serious category of offending determined with reference to “…all relevant sentencing considerations, including matters personal to the offender.”²⁶ Accordingly, a particular case might attract the mandatory minimum penalty even if all of the mitigating features which might be encountered are not present and even if not all aspects of the offending are the least serious aspects of such offending which might be encountered. The appropriate categorisation must depend upon the cumulative impact of all of the circumstances to be taken into account in the sentence.
The sentencing judge did not adopt the prosecutor’s submission, but his adoption of the two step sentencing methodology preferred by Riley CJ in R v Pot must now be regarded as an error in light of its subsequent rejection in Bahar v The Queen and R**v Karabi. As the respondent’s counsel pointed out in argument, Riley CJ made it clear that he would in any event have imposed the minimum penalty upon Pot and Lande and he did not expressly refer to that methodology when sentencing Wetangky, whose sentence was relied upon at the hearing before the sentencing judge. But Riley CJ’s remarks as a whole convey that he did apply that methodology in sentencing Wetangky. In any event, that methodology is likely to lead to less severe sentences in many cases and the sentencing judge plainly adopted it in sentencing both Razak and the respondent. Because the sentencing judge applied a wrong principle, which might have resulted in the respondent’s sentence being lower than it otherwise would have been, the sentence must be reviewed and the Court may substitute what it considers to be the appropriate sentence.
The sentencing judge’s acceptance of the submission for the respondent that he initially believed that the vessel was to shift freight and that the respondent then made a poor choice to remain on the vessel may have been generous to the respondent in the absence of any supporting affidavit or other evidence. However, there was no challenge to that assertion at the sentence hearing or in this appeal. The sentence must be considered on that basis. That is relevant but it does not substantially detract from the respondent’s culpability. His role was substantial. He directly contributed to the bringing to Australia of the 31 passengers by acting as deputy captain of the vessel for about four days of its journey to Australia and by acting as captain of the vessel for the last day of that voyage before the vessel was intercepted. The respondent’s personal circumstances, particularly including his plea of guilty as well as his poverty and limited education, should be taken into account in mitigation, but his prior convictions must also be taken into account.

“Wetangky was a 57 year old unemployed fisherman who accepted a payment of IDR 15,000,000 to be the captain of a vessel which would bring 78 passengers without valid visas into Australia. He was married with six children. He had been sentenced to terms of imprisonment in 1998 and 2000 for similar offences. The sentence imposed in 2000 was one of four years with a non-parole period of two years.

Wetangky was sentenced to seven years imprisonment with a non-parole period of four years and six months.

There were 53 passengers without valid visas on the vessel crewed by Idrus and Ahmad, who were each convicted on 11 December 2009 and sentenced to six years imprisonment with a non-parole period of four years. The vessel was taking on water when intercepted. There were no life jackets or safety equipment on board.

Ahmad had been convicted on 28 April 2000 of an offence against s 232A of the Act. Idrus had been convicted of an offence against s 233(1)(a) of the Act on 12 July 1999.

Djoni, who was sentenced to six and a half years imprisonment with a non-parole period of four years, was the captain of a vessel which when intercepted was carrying 49 people without valid visas. The other two members of the crew were Indonesian minors. There were life jackets for the passengers but not for crew members. Djoni, a 51 year old subsistence fisherman, was promised AUD $2,000 for his services, but only received AUD $750. That was confiscated. He understood that he would be gaoled if apprehended. He had previously been sentenced on 30 March 2001 to four years imprisonment by a Northern Territory court for a similar offence.”

Those sentences, each of which included non-parole periods of or exceeding four years, were more severe than the sentence imposed on the respondent. Each of those cases could be regarded as involving more serious offending, having regard to the numbers of passengers transported, the roles occupied throughout the voyages (at least in Wetangky and Djoni, who captained their vessels throughout), and (in the case of Idrus, Ahmad and Djoni) the deficiencies in the safety equipment onboard the vessels. A pattern of sentencing decisions might supply guidance to the proper sentence in some cases,²⁸ but those first instance decisions supply no real assistance here because of their different circumstances and because the sentence in Wetangky may have been affected by the application of a wrong sentencing methodology.
In R v Karabi, a sentence of six and a half years imprisonment with a non-parole period of four years was found not to be manifestly excessive. That applicant was a 47 year old Indonesian fisherman who was educated to grade 12 and married with eight children. He was sentenced on the basis that he was the captain of a vessel in which there were only six passengers and three crew members. The vessel was generally seaworthy although it had a very low freeboard and was unsuitable in a significant sea. The applicant had a prior conviction for facilitating the bringing into Australia of a group of five or more non-citizens, for which he was sentenced to two years eight months imprisonment, and two convictions of using a foreign boat for commercial fishing, which had attracted a good behaviour bond and a $10,000 fine. The decision that the more severe sentence in that different case was not manifestly excessive conveys very little about the appropriate sentence for the respondent.
In light of the respondent’s prior offending personal deterrence was a relevant consideration in this sentence. It has also been held that general deterrence must be taken into account in sentencing for this offence. In R v Karabi²⁹ Muir JA, with whose reasons I and Chesterman JA agreed, observed:

“The role of general deterrence in cases of this kind cannot be doubted. People trafficking: threatens the orderly administration of immigration laws; imposes a financial burden on the Australian public; necessitates the deployment of military, customs and other governmental resources; encourages official corruption in other nations and exploits and imperils the health and lives of those carried, or attempted to be carried, into Australia. The seriousness with which the Parliament regards such conduct is apparent from the maximum and minimum penalties provided for by s 233C of the Act. [Currently s 236B]”

In these circumstances, it is as true of the respondent’s offence as it was of the serious tax frauds considered in RvRuha, Ruha and Harris; Ex parte Director of Public Prosecutions (Cth) that “the necessary deterrent and punitive effects of [the] sentences … must be reflected both in the head sentence and also in any provision for earlier release from custody”.³⁰ In some cases those requirements might be met by a head sentence exceeding the mandatory minimum term coupled with the mandatory minimum non-parole period, but in this case it is not as easy to see how the respondent’s sentence appropriately takes into account both general deterrence and personal deterrence when regard is had to the large number of passengers on the vessel, the substantial nature of his role in the voyage, and the fact that two previous sentences of imprisonment about a decade earlier for similar offending had failed to deter the respondent. The sentence imposed by the sentencing judge must be regarded as inadequate despite the mitigating circumstances, which most notably included the respondent’s plea of guilty. The sentence which is of the severity appropriate in all of the circumstances is that for which the respondent contended before the sentencing judge, namely six years imprisonment with a non-parole period of four years.
In R v Major; ex parte A-G (Qld),³¹ Fryberg J, with whose reasons in this respect Chesterman JA agreed, referred to a “residual discretion” to refuse a Crown appeal under s 669A of the Criminal Code notwithstanding the identification of an error in the sentence imposed at first instance. That is consistent with the holding by French CJ, Crennan and Kiefel JJ in Green v The Queen; Quinn v The Queen³² that the Court of Criminal Appeal of New South Wales, in the exercise of its jurisdiction under s 5D of the Criminal Appeal Act 1912 (NSW) (a provision which, for present purposes, is materially indistinguishable from s 669A(1) of the Criminal Code) has a “residual discretion” to decline to interfere with a sentence even though the sentence is erroneously lenient. Their Honours held that the circumstances which might justify exercise of that residual discretion included a disparity with a co-offender’s sentence which would be created by allowing a Crown appeal, “delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent’s release on parole or unconditionally, and the effect of re-sentencing on progress towards the respondent’s rehabilitation.” The discretion should be exercised if the guidance which will be afforded to sentencing judges by allowing the appeal comes at “…too high a cost in terms of justice to the individual.”

Proposed orders

The following orders are appropriate:

(1) Allow the appeal.

(2) Vary the sentence imposed upon the respondent in the District Court by substituting a non-parole period of four years for the period of three years imposed in the District Court.

GOTTERSON JA: I agree with the orders proposed by Fraser JA and with the reasons given by his Honour.

[33] MULLINS J: I agree with Fraser JA.

Footnotes

The sentencing judge was referred to Director of Public Prosecutions (Cth) vElKarhani (1990) 21 NSWLR 370. ↩
Outline of Crown submissions, paragraph 5. ↩
Supreme Court of the Northern Territory, 18 January 2010. ↩
Transcript 5-12. ↩
Transcript 5-19. ↩
Outline of Crown submissions, paragraphs 15 and 16. ↩
Unreported, Supreme Court of the Northern Territory, Riley CJ, 18 January 2010. ↩
[2011] WASCA 249. ↩
[2012] QCA 47. ↩
[2012] QCA 47. ↩
R v Pot, Wetangky and Lande (supra). ↩
Deanes DCJ, WA District Court, 11 December 2009, unreported. ↩
McMann DCJ, WA District Court, 17 December 2010, unreported. ↩

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