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
Source
Original judgment source is linked above.
Catchwords
313 ALR 451
Khanwaiz v R [2012] NSWCCA 168
Muldrock v R [2011] HCA 39244 CLR 120
R v Michael Arthur Falls [2004] NSWCCA 335
R v Feng Lin [2001] NSWCCA 7
Judgment (3 paragraphs)
[1]
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
[2]
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:
1. 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.
2. 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.
3. Counts 5 and 6 - a fixed term of imprisonment of 1 year and 10 months commencing 20 April 2015 and expiring 19 April 2016.
The sentences were entirely concurrent so that the total effective sentence was a period of imprisonment of 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.
The applicant seeks leave to appeal against sentence on the following grounds:
(i) Error in finding without evidence that the common sense inference is that a person facilitating illegal travel is involved for profit.
(ii) Error in finding that the offences were aggravated because they were committed for the purpose of financial gain; and
(iii) By reason of a combination of the above grounds, a greater sentence than required by law was imposed on the applicant.
Factual background
A Statement of Agreed Facts was placed before the Court. The applicant also gave evidence and was cross-examined. Despite the applicant having agreed to the Statement of Facts in his oral evidence, he sought to traverse parts of the agreed facts. The nature of this controversy will be elaborated in due course.
Counts 1 and 2
The applicant facilitated the illegal entry of Mahdi Aldafai and Hazim Aldaffaay by Suspected Irregular Entry Vessel (SIEV) with the assistance of four other people - a Thai based person named Alfatlawi, an Indonesian based person Abu Anwar, a Malaysian based person named Abu Mustafa and a Sydney based person Ali Zedan. He did this in the following ways:
1. made arrangements and negotiated prices for visas for both illegal entrants in Indonesia; and
2. made arrangements with intermediary smugglers for transfers and accommodation for both of them.
Before leaving Iraq, Hazim Aldaffaay contacted his relative, Ali Zedan, who lived in Sydney. He told Zedan that he would be travelling to Indonesia with his nephew and wanted someone to organise a hotel in Malaysia on his way to Indonesia. Zedan told him that he knew someone who travelled between Indonesia and Malaysia regularly who might help. He said his name was "Fadhill" and he would be in Malaysia.
On 15 December 2011 the applicant rang an Indonesian telephone service and spoke with a male he addressed as Abu Anwar. He told Anwar that he had two "customers" and gave Anwar their names, passport numbers and dates of birth so that Anwar could organise visas for them. Anwar said it would cost $3,300 as there were many expenses - someone to look after them by picking them up, placing them in accommodation and taking them to restaurants. Anwar said that the same person would stamp their visas in their passport, book their flights and move them.
The same day the applicant telephoned Zedan to obtain their full names in English, dates of birth and passport numbers to obtain visas for them. He told Zedan the two individuals would fly to Jakarta, two to three days after arriving in Malaysia on 18 December 2011. Later that same day, Zedan sent the applicant a text message with this information. The applicant immediately forwarded the text messages to Anwar.
On 15, 16 and 17 December the applicant called Zedan to update him on the progress of the two individuals. Also on 17 December the applicant rang a Thai telephone number and spoke to Alfatlawi. Alfatlawi requested that the applicant bring photographs and a copy of the two individuals' passports with him when he came to Malaysia.
On 18 December the applicant called a Malaysian telephone number and spoke to Abu Mustafa. The applicant told him that two passengers from Iraq were arriving in Kuala Lumpur at 6pm the next day and that he wanted someone to go to the airport to meet them. He told Abu Mustafa that they would be flying Egyptian Air, that he would be sending him their flight details and that he wanted a room booked at the "Times Square Hotel" for them.
Five minutes later, the applicant called Zedan and got the Egyptian Air flight number and arrival time from Bangkok. Immediately after that, he text messaged Abu Mustafa on his Malaysian number with the flight number and time of arrival. About an hour before the flight was due to arrive, the applicant called Abu Mustafa asking about the group. Mustafa said it was too early yet but he had organised an Iraqi chauffeur who had their particulars and would be there to meet them.
Aldafai and Aldaffaay successfully arrived in Kuala Lumpur at 6.05pm. At 10.20 the applicant rang Abu Mustafa to ensure the group had arrived safely. When Abu Mustafa rang the applicant about thirty minutes later, the applicant passed this message onto him. At 11.15 the applicant received a call from Abu Mustafa who said the group were with him "now". The applicant requested that Mustafa buy them a SIM card, get them to exchange $100 and then asked to speak with them. The applicant told them that they were to go with Mustafa and exchange $100 to $200 to cover their food and to purchase a SIM card so they could be in contact with him and also Zedan.
On 19 December 2011 Zedan rang the applicant and told him that he had their "number" and would text message it to him. After the call, Zedan sent Aldaffaay's mobile number to the applicant by text message.
On 21 December 2011 the applicant departed Australia. While overseas, he visited Indonesia and Malaysia. On 21 March 2012 he returned to Australia. While in Malaysia the applicant met Aldafai and Aldaffaay in a restaurant in Kuala Lumpur. He told them that the quickest way to Australia was by boat and that he could arrange the travel if they paid him. The agreed facts stated:
"26 Both eventually agreed to pay the offender $US10,000 each for the journey, $US5,000 which was paid at the restaurant in Malaysia and the remaining $US5,000 paid upon arrival in Indonesia. Both also gave the offender their passports which he handed back to them with an Indonesian visa just before they flew to Indonesia."
The applicant gave evidence in the sentence proceedings that he did not retain any of this money. He said that the way the paragraph read was misleading. He said that the meeting occurred in a shopping centre and not a restaurant but more importantly, that Amin was also present at the time and it was Amin who took the money. He denied in cross-examination that the reason he went to Malaysia at this time was to help Aldaffaay and Aldafai come to Australia. He claimed that he happened to be in Malaysia to find the smuggler who put his parents on an unsafe boat. By way of further background, his parents at an earlier point in time had unsuccessfully attempted to illegally enter Australia by boat.
On the morning of 30 December Aldafai and Aldaffaay flew to Jakarta. That evening the applicant called Buka and told him that his "group flew this morning and arrived today. They are two customers and I have been busy with them all week in Malaysia".
Paragraph 29 of the agreed facts read:
"29 In Indonesia the offender arranged for a taxi for them and they were met by the offender's wife, Julita, at a hotel and later met the offender at a restaurant where they paid him the remaining $US5,000 each. The offender then gave the money back to them and told them to give the money to a person called "Karimi". Later that day Aldafai and Aldaffaay met Karimi and gave him $US5,000 each."
After the applicant's arrest, Aldafai and Aldaffaay had no further contact with him. They made their own arrangements with people smugglers to come to Australia. They ultimately entered Australian waters on separate boats. On 4 July 2012 an RAN ship intercepted SIEV 367 within Australian territorial waters, about 170 nautical miles from Christmas Island. It was carrying 160 passengers of which Aldaffaay was one. On 8 August 2012 SIEV 402 was intercepted about 128 nautical miles from Christmas Island. It was carrying 211 passengers of which Aldafai was one. Neither Aldaffaay nor Aldafai had a valid visa authorising their entry into Australia.
Counts 3 and 4
The applicant facilitated the bringing or coming to Australia of Abdul Al Jadiri and Hiba Almayhi by SIEV with the assistance of his Indonesian based girlfriend, Lika Julita. He did this in the following ways:
1. liaising with his girlfriend, Julita, to find and arrange accommodation for Al Jadiri and Almayhi in Indonesia.
2. assisting these people to get in contact with intermediary smugglers.
3. assisting in transferring money to Indonesia for them to pay for their fare to the smuggler who would take them to Australia by SIEV; and
4. assisting in transferring money to them for their general living expenses whilst in Indonesia.
In September or October 2011 Abdul Al Jadiri and Hiba Almayhi, who were husband and wife, left Iraq. They flew to Kuala Lumpur. Buka was the applicant's co-accused and lived in Melbourne. Buka was the applicant's best friend. Buka was Hiba Almayhi's uncle. Buka had booked a room for Abdul and Hiba at the "Times Square Hotel" in Kuala Lumpur. The applicant travelled to Indonesia and assisted them with money for living expenses and with organising a smuggler.
Between 3 November 2011 and 27 March 2012 the applicant spoke to Buka, Julita, Abdul Al Jadiri and Hiba Almayhi about Abdul and Hiba's situation in Indonesia. Arrangements were then made for money to be given to them for living costs and to find a smuggler to move them to Australia. Money was sent from Buka to Julita to give to them to pay for their illegal travel by SIEV. Hiba told the applicant in a telephone call that she would need "7" from Buka. The applicant then telephoned Julita to arrange the transfer details. For example, on 13 November 2011 $5,000 was transferred by Behrouz Harvasi on behalf of Buka by money transfer at a post office in Melbourne to Julita. This was for Abdul and Hiba's fare to Australia by SIEV.
On 29 November 2011 in a number of telephone conversations between Buka and Hiba, Hiba told Buka that they had run out of money for living expenses and urgently needed $200. Buka contacted the applicant to arrange this through Julita. On 30 November 2011 the applicant arranged for Julita to meet up with Abdul and Hiba and to give them $200.
On 5 December 2011 the applicant looked up on the internet the ocean weather and current marine data in the Australian region. About six hours later, Buka received a call from Abdul informing him that they had been on the ship for about an hour. A couple of hours later, the applicant rang Buka and told him that he had heard from Abdul and Hiba and that they had moved half an hour before the call. This coincided with the time that SIEV 287 was intercepted about 13 nautical miles from Christmas Island. The boat was carrying 167 passengers, including Abdul and Hiba. No person on the boat had a valid visa authorising their entry into Australia. A couple of hours later, the applicant rang Buka and congratulated him because the group had arrived, explaining that he had found out about the boat's arrival on the internet.
Counts 5 and 6
The applicant facilitated the bringing or coming to Australia of Duaa Keyadi and her four year old son Ahmed by SIEV in the following ways:
1. arranging accommodation;
2. purchasing internal airline tickets, arranging visas; and
3. assisting them to get in contact with other intermediary smugglers.
Duaa Keyadi was a relative of the applicant.
Between 15 December 2011 and 27 March 2012 there were about 40 telephone conversations between the applicant, an Indonesian Malaysian-based smuggler named "Karimi", an assistant "Matin" and Duaa Keyadi's husband, Hassanain. While in Indonesia and Malaysia between 21 December and 21 March 2012 the applicant assisted Duaa and her son with their travel from Iraq to Indonesia.
On 6 February 2012 Duua and her son left Iraq for Kuala Lumpur with the intention of coming to Australia with the assistance of the applicant. On 9 February the applicant received an email with Duaa and her son's dates of birth and passport numbers. On 21 March the applicant received a call from the family in Iraq in which he told them he had moved Duaa and her son from Iraq and Malaysia. On 23 March the applicant spoke with Matin, who requested that he organise someone in Malaysia to provide Karimi, the principal smuggler, $1,000. The applicant called Akbar in Iraq for the money to be transferred.
On 9 June 2012 SIEV 510 was boarded by an Australian Customs Vessel about 11 nautical miles from Christmas Island. The boat was carrying 120 passengers. No person on the boat had a valid visa authorising their entry into Australia. Duaa was not aboard the boat and there is no evidence that she ever reached Australia. However, on board was Duaa's husband, Hussanain, as well as his four year old son, Ahmed, and another son aged 3 years.
On 27 March 2012 the police arrested the applicant. It is not known how, following his arrest, Hussanain and his two children arranged to come to Australia by boat.
Item 1 on the Schedule - Facilitating the bringing or coming to Australia of Mohammad Karim
The applicant did this for Mohammad Karim with the assistance of Akbar and Julita in the following ways:
1. finding and arranging accommodation for him in Indonesia;
2. assisting him to get into contact with intermediary smugglers, including "Haji Hussain";
3. assisting in the transfer of money to Indonesia for him to pay his fare to the smuggler who would take him to Australia by SIEV; and
4. assisting in transferring money to Indonesia for him for general living expenses while he was in Indonesia.
Between 3 November 2011 and 27 March 2012 in about 50 telephone calls the applicant spoke to Buka, Karim, Akbar, Julita and an Indonesia and Malaysian based smuggler known as "Haji Hussain" to facilitate Mr Karim's illegal arrival.
On 12 December 2011 Buka and Julita arranged accommodation for Karim in Indonesia. That afternoon Karim flew from Kuala Lumpur to Jakarta. Buka discussed with Karim the cost of his illegal travel and arrangements were made to have money sent from Iran. However, as there were no money transfer arrangements between Iran and Indonesia, it had to be transferred via Australia. Arrangements were made for the applicant to do this. The applicant was due to arrive in Australia within days.
On 19 December, Buka telephoned the applicant and told him that Karim needed the money and that his family would transfer the funds to Australia. That same day arrangements were made for $2,400 to be sent to Buka who would then transfer it to the applicant, who was leaving for Indonesia and could give it to Karim. On 20 December Buka called the applicant and instructed him to go to Safdari, an Afghani in Merrylands (Sydney), and collect $2,400 from him. On 21 December the applicant left Australia for Jakarta.
On 7 January 2012 the applicant rang Buka and told him that the smuggler "Haji" said that they should not bring any baggage or identification with them and to ask Karim if he was ready. He told Buka that if Karim wanted his luggage, he needed to send it to him in Australia. On 11 January the applicant rang Buka. They discussed the fact that money had been collected but Karim had not left.
On 12 January Buka rang the applicant. They discussed the fact that Karim needed a visa from the UN to prevent him being arrested. The applicant agreed to provide money to Karim for living expenses. Buka told the applicant to tell "Haji" to move Karim as he had already been paid. Karim was apparently scared to proceed further and Buka asked the offender to call Karim but "if he insists … then leave him".
On 13 January Buka told the applicant that Karim was settled and the sea was currently rough but he had been checking it. On 14 January the applicant told Buka that he had given Akbar 1 million and Buka said he would transfer $200 to Julita on Monday. On 19 January SIEV 299 was boarded by the RAN about 19 nautical miles from Christmas Island. The boat was carrying 57 passengers. No person on board had a valid visa authorising them to enter Australia. Karim was on board.
On 20 January Buka called the applicant in Indonesia and told him that Karim had arrived. While nothing had been published on the internet, he had received a call from the Detention Centre to confirm their arrival. Buka was to add the $300 with the "others" and they would account to each other later.
Item 2 on the Schedule - Facilitating the bringing or coming to Australia of Bahare Shadfar
The applicant did this for Bahare Shadfar in the following ways:
1. assisted in transferring money for living expenses for Ms Shadfar while she was in Indonesia before her passage to Australia; and
2. advised her on various smugglers and provided assurance that he would help her when she arrived in Indonesia.
Between 3 November 2011 an 27 March 2012 the applicant spoke to Julita and an unidentified male in Malaysia named "Amin" to facilitate Ms Shadfar's illegal entry into Australia by SIEV. On 17 December 2011 before he left Australia for Indonesia, the applicant received a call from "Amin". Amin asked the applicant if he had someone in Indonesia to whom he could send $1,000 through a financial institution and deliver it to another person because this person did not have a visa and was afraid to collect the money. The applicant said he would organise this with Julita.
A few minutes after this call, the applicant called Julita in Indonesia and asked her how much money she had. Julita told him after which he asked her to give Amin a call and to organise that the money be given to a friend, who had no visa. A few minutes later in a text message and call, the applicant told Amin to send him his friend's number so he could pass it on to Julita and that Julita had about $400 to $500. Amin sent the applicant this information.
The applicant then called Ms Shadfar. He told her that he was Amin's friend from Sydney and asked her for her location and a time for her to meet an Indonesian lady to give her money. He also said that he was in Sydney but coming to Indonesia on Wednesday the 21st and that they would meet. The applicant called Julita and Ms Shadfar, organising them to meet each other and for Ms Shadfar to be given $500. The applicant called Amin and told him what he had arranged.
In a conversation with Ms Shadfar, the applicant told her that a lady would be there to meet her in five minutes to give her some money. Ms Shadfar told him that she had been there from 21 October and that she had made an unsuccessful attempt to come by sea, and had just been released from the immigration building. When asked whether he knew Haji, he said he knew all of them "Hussain, Whalid, Mustafa, Amir, Mehdi, Sayed Mehdi, Abu Walid". He went on to say that his job was to give her advice and that the weather was presently bad. He said "Don't trust anyone" and later "Please don't take any risk" and that the weather could not be trusted. There were no records of Ms Shadfar having a valid visa to enter Australia.
Items 3 and 4 on the Schedule - Facilitating the bringing or coming to Australia of Layth Al-Khazaali and Asam Al-Kinani
The applicant and an Indonesian based Farsi associate known as "Matin" facilitated the proposed bringing or coming to Australia of these two men between 16 November 2011 and 27 March 2012. The applicant regularly spoke to Matin and these two men and an Indonesian and Malaysian based smuggler known "Karimi" throughout this period.
The applicant facilitated the bringing or coming to Australia of Layth Al-Khazaali and Asam Al-Kinani by:
1. arranging for money to be collected from them for their journey;
2. arranging accommodation for them in Indonesia;
3. purchasing internal airline tickets and arranging visas for them; and
4. assisting them to get into contact with other intermediary smugglers.
On 16 November 2011 Al-Kinani telephoned the applicant. The applicant told him not to come now as the weather was not good and a boat capsized the other day. He also told Al-Kinani the best story to provide to officials. Al-Kinani was the next door neighbour in Iraq of Hussanain Kyadi and his wife Duaa.
The agreed facts stated:
"99 Al-Khazaali left Iraq around 25 January 2012 after obtaining the offender's number as a person he could speak to about how to get to Australia. Al-Khazaali negotiated with the applicant for his journey to cost $US11,000."
The applicant said in evidence that he did not get any of this $11,000 but rather it was the expense of the journey in coming to Australia. The applicant said that he believed that it was the agent he was contacting that got this money.
The agreed facts stated at paragraphs 103 and 104 that on 6 February 2012 Al-Kinani travelled from Iraq to Kuala Lumpur with the intention of coming to Australia with the assistance of the applicant. When he arrived, he stayed at a hotel where he gave $3,500 to "Ibrahim" after negotiating with the applicant on the phone. He also gave his passport to "Ibrahim". The name, date of birth and passport number for Al-Kinani was emailed to the applicant. Later Al-Kinani flew to Jakarta. The applicant said in evidence that he did not know whether this $3,500 was part of the $11,000 mentioned earlier or not.
In late January 2012 Al-Khazaali separately met with associates of the applicant known as "Iraj" and "Shadi" in restaurants in Malaysia. He paid a portion of the money to them and was smuggled to Indonesia by boat. On 21 March 2012 the applicant returned to Australia, after spending 3 months in Indonesia and Malaysia.
On 24 March 2012 the applicant called "Matin" and told him that the sea conditions were good and asked when it would be. He was told it might be in the next two or three days. The same day he spoke to Karimi about the topic. On 26 March the applicant called Al-Khazaali and Al-Kinani asking how they were. They expressed hope that there would be news in the next few days. The applicant said he would organise "Matin" to contact them.
Because the applicant was arrested on 27 March 2012, in April 2012 Al-Khazaali and Al-Kinani were forced to leave their accommodation by Karimi as the applicant was not able to honour the agreement. They had to find and pay other smugglers, who eventually arranged for them to get on a SIEV to Australia.
On 9 June 2012 SIEV 345 was boarded by Australian Customs about 11 nautical miles from Christmas Island. The boat was carrying 120 passengers. No person on the boat had a valid visa authorising entry into Australia. Al-Khazaali and Al-Kinani were on board.
The applicant gave evidence about matters beyond those set out in the Agreed Statement of Facts. He said that it was his practice to visit Indonesia every three months to visit his family and his wife. He said that it was because of his own experience and that of his parents that he chose to assist people and not let them fall into the hands of crooked smugglers. He said that his telling Ms Shadfar not to trust anyone and not to take any risks supported what he was saying.
Proceedings in the District Court
By reference to s233A(1)(a) of the Migration Act (Cth) which refers to a person who "organises or facilitates the bringing or coming to Australia …" his Honour found that normally to "organise" would be more serious than to "facilitate" but that this might not always be so. His Honour then proceeded to assess the objective seriousness of the offences on the basis that the applicant was a facilitator.
There was an issue before his Honour as to whether any of the offences were committed for financial gain. It was the applicant's case that his motive was purely altruistic, humanitarian and not for profit. He said that his wife had earlier died as a result of which he had received an insurance payment of $250,000. It followed, so the applicant submitted, that he was not in need of money. He submitted that two of the persons whom he helped to come to Australia, Messrs Aldafai and Aldaffaay, were relatives of a friend in Sydney. Because they had helped the Americans in Iraq, they were both under threat of retaliation. He submitted that the persons in counts 3 and 4, Abdul Al Jadiri and Hiba Almayhi, were distant cousins. In relation to counts 5 and 6 he said that Duaa was his first cousin.
On this issue the Crown submitted that by analogy with the approach adopted by the courts in respect of drug importation offences, his Honour should draw a "common sense" inference to the effect that a person facilitating illegal travel was involved for profit unless there was persuasive evidence to the contrary. In support of that submission and generally, the Crown referred to the large sums of money which had either been paid to the applicant or which the applicant had arranged to be passed onto other persons.
On this issue, his Honour concluded:
"I find he acted from a combination of motives, a combination of personal gain and altruism. I have reached that conclusion for a number of reasons. The common sense inference that a person facilitating illegal travel is involved for profit; the agreed facts refer on a number of occasions to the offender "negotiating" the price of things; they also refer at para 9 to the offender telling Abu Anwar that he had "two customers." His demonstrated extensive and businesslike knowledge of what was involved to smuggle people from Malaysia via Indonesia to Australia, as well as his regular travel to these areas. That is notwithstanding the relationship that he gave evidence about and the insurance money that he also spoke about.
Overall I find,
(a) the offender was a facilitator who acted for a combination of personal financial gain and altruistic motives, with one exception which I will mention in a moment. The evidence does not enable quantification of that financial gain to be assessed. His role, as I have taken the trouble to detail the facts in great detail, was varied and integral. He was involved in most stages;
(b) it necessarily involved putting lives at risk;
(c) it involved overall bringing or attempting to bring ten non-citizens into Australia over the five month period from 3 November 2011 to 27 March 2012. …" (ROS 16.5 - 17.3)
His Honour concluded that attempting to bring 10 illegal immigrants into Australia over a 5 month period was people smuggling in a comparatively minor way, compared to the numbers on board each SIEV. Balanced against that, was the integral role which the applicant played in the people smuggling process. In relation to counts 5 and 6, his Honour concluded that no financial gain was involved but that otherwise there was little to differentiate the offences.
His Honour regarded specific and general deterrence as important considerations. This was because the object of the Migration Act was to regulate in the national interest the coming into and presence in Australia of non-citizens. By reference to what Mason P said in R v Feng Lin [2001] NSWCCA 7; 119 A Crim R 194, his Honour took into account that the unlawful entry of non-citizens into Australia was a serious violation of the country's sovereignty and national security and that "it undermines the attempted equities of an organised immigration and refugee system; it exposes the participants to exploitation and risk to health and life and it imposes significant costs upon the Australian public". His Honour noted that another effect of people smuggling was that many other deserving people, who might otherwise have secured lawful entry into Australia, were its indirect victims.
In accordance with s16A(2) of the Crimes Act 1914 (Cth) his Honour reviewed the applicant's subjective case. He was aged 36/37 at the time of the offending and was 39 at the time of sentence. In addition to the applicant, his mother gave evidence. There was a psychiatric report to the effect that he was not suffering from any psychiatric issues.
He was born in Iraq, one of nine children. When he was about five, his family was deported to Iran. He was a very good soccer player and was in the Iranian under 17 team. He also played professional soccer.
In 2000 he left Iran and made his way to Indonesia, paid a people smuggler and made the dangerous journey to Ashmore Reef by boat in May 2001. He said that when he did this, a friend of his in Sydney put him into the hands of trusted people in Indonesia. He quickly got a visa to stay in Australia because of his soccer talents. Nevertheless, he appears to have encountered difficulties in that he had convictions for shoplifting and larceny in 2003, as well as a conviction for stealing property as a clerk/servant in 2005. He was fined for these offences. Because of those convictions, his Honour did not treat the applicant as a person of prior good character but otherwise did not regard them as relevant.
The applicant worked as a machinery operator in 2002/2003 and was in South Australia for 6 years where he was employed as a cleaner with a soccer club and with whom he played soccer. He also did work as a contractor installing floors and floor coverings. For a number of years before committing these offences, he took trips to Malaysia and Indonesia which ranged from weeks to months at a time. When taken into custody for these offences, he was unemployed.
In January 2006 he married. His wife was of Turkish background, but born in Australia. There were two children of the union. His wife suicided in the home by hanging herself in September 2008, apparently as a result of depression which she suffered after the second baby. After his wife's death, the applicant took his son to Indonesia to be with his parents who were then refugees there. He left his daughter with relatives in Australia.
In 2008 his parents (with his assistance) tried to enter Australia by boat but were intercepted and sent back to Indonesia. They ultimately obtained legitimate residency in Australia in 2011 as part of the Family Reunion Immigration Program. The applicant's two children were aged 6½ and 8 at the time of sentence. Since the applicant went into custody, they have been living in Sydney with his mother.
In a letter to the court, the applicant said that his intention was "to help make this dangerous journey a little safer for my family and dear friends. Never did I imagine that by doing so I was breaking the law". This was confirmed in his oral evidence when he said that he did not realise that what he was doing was a crime until his lawyers told him that such was the case. This evidence was rejected by the sentencing judge. Apart from its inherent improbability, his Honour referred to the applicant's evidence in cross-examination that when he came to Australia by boat himself and paid cash to people smugglers, he knew that it was not legal. Nevertheless, his Honour took into account as a mitigating factor the element of altruism in the applicant's motivation for committing these offences.
His Honour referred to the applicant's oral evidence that he recognised that what he had done was wrong. His Honour also took into account that the applicant had made statements shortly before his plea of guilty to the effect that he was doing so in order not to waste the insurance money. His Honour concluded:
"Whilst I consider that he acknowledges that what he has done is contrary to Australian law, I consider that morally he feels as though he has done nothing wrong." (ROS 21.3)
His Honour rejected the Crown submission that the applicant posed a high risk of re-offending. He did so because having been arrested and sentenced for these offences, the applicant would now have come to the notice of the authorities so that it would be difficult for him to re-offend. His Honour assessed the risk of such re-offending as low to moderate. In relation to his life outside the offending, his Honour concluded that his rehabilitative prospects were good. This was because of his work ethic, his family support, his love of family and children and his plans for the future.
His Honour gave modest weight to the applicant's inevitable distress at being unable to continue to see his children while he was in custody and that this would make his experience of imprisonment more onerous. His Honour took into account that the applicant had been held in maximum security for a year.
The applicant's custodial history was that he was arrested and charged on 27 March 2012. On 24 May 2012 he obtained Supreme Court bail, but was re-arrested on 19 December 2012 for breach of his bail conditions. It is for this reason that his Honour backdated the commencement of his sentence to 20 October 2012.
His Honour allowed an unspecified discount for the applicant's willingness to facilitate the course of justice by pleading guilty. The trial was fixed for eight weeks commencing 8 October 2013 and the plea was entered on 17 October 2013. His Honour took into account that apart from his plea of guilty, the applicant had not co-operated with law enforcement agencies.
THE APPEAL
Ground 1 - Error in finding that evidence that the common sense inference that a person facilitating illegal travel is involved for profit.
Ground 2 - Error in finding that the offences were aggravated because they were committed for financial gain.
Ground 3 - By reason of a combination of the above grounds, a greater sentence than required by law was imposed.
These grounds of appeal raise the same issue and can conveniently be dealt with together.
The applicant submitted that his oral evidence in the sentence proceedings as to his motivation for offending should have been accepted by his Honour. This was because it was internally consistent and was consistent with his actions over the period. He submitted that there was no evidence to contrary effect.
The applicant submitted that the analogy sought to be drawn by the Crown between the facilitation of people smuggling and drug supply offences was not valid. He submitted that to the extent that his Honour relied upon that analogy and "common sense", his Honour was in error. What was required was some evidence to substantiate his Honour's finding (Farkas v R [2014] NSWCCA 141).
The applicant submitted that because this erroneous finding was taken into account by his Honour when assessing the objective seriousness of the offending, it was necessary for this Court to re-sentence the applicant without having regard to that finding.
The applicant submitted that to the extent there was any evidence that his offending was motivated by financial gain, that evidence was not capable of establishing that fact beyond reasonable doubt. He submitted that by reference to his oral evidence, there was ample evidence to establish on the balance of probabilities that he was not so motivated.
The applicant submitted that it was not open to the Crown to rely upon paragraphs 26, 28 and 29 of the Agreed Statement of Facts when the accuracy of those paragraphs had been challenged by his sworn evidence in the sentence proceedings. He submitted that despite extensive cross-examination on those issues, his evidence remained unshaken. The applicant also relied upon what he identified as a wrong translation in that the word "customer" in his language (Persian) did not carry a business or money connotation.
The applicant submitted that on the whole of the evidence it was more probable than not that he had no financial motive for the offending but was doing it out of a genuine concern for the 10 illegal immigrants whom he assisted. He drew particular attention to the following:
1. from his own experience and that of his parents he was well aware of the dangers to which illegal immigrants were exposed when attempting to come to Australia;
2. he had a connection, either directly or indirectly, through friends and relatives to each of the illegal immigrants whom he assisted;
3. he was primarily facilitating the transfer of money to the illegal immigrants to assist their coming to Australia; and
4. that some of the intercepted telephone calls showed that he was checking weather conditions for boats supported this submission.
There were no separate submissions as to Ground of Appeal 3, other than the proposition that once the financial motivation element was removed from the objective seriousness of the offending, consistent with the approach which his Honour followed in respect of counts 5 and 6, the sentence should be reduced.
Consideration
The challenge by the applicant to that part of his Honour's reasoning which relied upon "common sense" and the analogy with drug importation has to be upheld. Such an approach has nothing to do with "common sense" and the analogy sought to be drawn by the Crown is false. The question of the applicant's motivation for his offending had to be decided by reference to the evidence in his case.
Although his Honour erred in taking that matter into account, the evidence justifies a finding beyond reasonable doubt that part of the applicant's motivation for the offending involved financial gain.
On that issue, it is appropriate to prefer the contents of the Agreed Statement of Facts to the oral evidence of the applicant. The Agreed Statement of Facts was signed on each page by the applicant and carried on its last page an attestation by the interpreter, who read the document to him in Persian, that the applicant "understood everything". Moreover, the Agreed Statement of Facts was tendered in the sentence proceedings as an agreed document without objection or qualification being made at the time by senior counsel then appearing for the applicant. Both in evidence and in cross-examination, the applicant accepted that the Statement of Facts was agreed and acknowledged that he understood that he was to be sentenced on the basis of its content (T.6.19 - AB 17; T.30.24 - AB 41). The applicant gave evidence that the Agreed Statement of Facts was explained to him by his lawyer, was translated to him and that he had understood it before he agreed and signed the document (T.30.24 - AB 41; T.33.25 - AB 44; T.33.14 - 33.35 - AB 44).
While there may be some ambiguity in the Agreed Statement of Facts if one carefully parsed each phrase and word, the overall effect is that large sums of money were being handed to the applicant. Some money was passed on to other parties but some apparently not. He was active and experienced in negotiating the amounts of money to be paid to various persons in the people smuggling network. Paragraphs 25 and 26 of the statement contain assertions that the applicant could arrange travel to Australia by boat if Aldaffaay and Aldafai "paid him" with the total cost being $US10,000 each. Each of them paid $US5,000 to the applicant in the restaurant at that time. Apart from his oral evidence, which his Honour only accepted in part, there was nothing in the Agreed Statement to indicate that the $US10,000 which the applicant received at that time was totally disbursed on their behalf, rather than being in part retained by the applicant.
In his oral evidence, the applicant disputed that such an event occurred in a restaurant and asserted not only that the location was different, but that another person "Amin" was present and it was to that person that the $US10,000 was given. This evidence is quite inconsistent with the Agreed Statement of Facts and that document should be preferred to the oral evidence.
Paragraph 26 of the Agreed Statement of Facts made it clear that the $US10,000 was in fact handed over to the applicant at that time. If there were any doubt that is clarified by the use of the word "also" in the next sentence relating to the handing over of passports. What happened at the restaurant in Malaysia is to be contrasted with what happened in paragraph 29 in Indonesia when the second payment of $US10,000 was returned by the applicant.
Apart from the applicant's obvious familiarity with financial negotiations with not only people smugglers but intermediaries along the way, there were other indications in the Agreed Statement of Facts of a commercial element in financial transactions involving the applicant. At paragraph 83 of the Agreed Statement of Facts, there is a telephone conversation between the applicant and a smuggler in the course of which they agreed to "account to each other later". Similarly, paragraph 114 of the agreed statement refers to Al-Kinani and Al-Khazaali being "kicked out of the villa" by a smuggler "as the offender wasn't able to honour the agreement". There is a distinctly commercial element in that material.
In addition, the applicant accepted that he was directly involved in negotiating prices, arranging for money to be provided to the passengers by way of international money transfers and other financial arrangements, such as payment for accommodation.
It is clear from the applicant's personal circumstances that being out of Australia for approximately four months between December 2011 and March 2012 involved considerable hardship for the applicant in that he was separated from his children and from his family and was apparently not receiving any money. While one can understand a desire on his part to see his girlfriend, Julita, from time to time, it strains credulity that the applicant would be so active in the affairs of others during a four month period without there being some financial incentive. This is particularly so when he appears to have been very conscious of money matters in that he agreed to plead guilty so as to save legal fees.
These were all matters which his Honour took into account (see [58] hereof) and could be properly taken into account in addition to the flawed "common sense" factor.
Indirectly, the applicant's oral evidence in the sentence proceedings provides further support for a partial financial motive. Contrary to what was in the Agreed Statement of Facts, the applicant was at considerable pains to deny that he had received any money and was generally attempting to minimise his role overall by asserting that he did not know that people smuggling was illegal. This is illustrated by the following evidence:
"Q. You went there [Malaysia] to get money from them?
A. WITNESS: No I didn't get any money from them.
Q. Well, you $5,000 each from them according to your own agreed facts, didn't you?
A. WITNESS: I didn't, I didn't get any money your Honour, not even one cent.
Q. They each paid you $5,000 didn't they, US dollars?
A. WITNESS: They didn't, they did not pay me one cents, your Honour.
…
HIS HONOUR:
Q. Just go back to paragraph 26.
A. WITNESS: Yes.
Q. Let's read it together slowly.
A. WITNESS: Yes.
Q. And tell me what is wrong or not quite clear in these sentences, all right?
A. WITNESS: Yes, your Honour.
Q. "Both eventually agreed to pay the offender $10,000 each for the journey."
A. WITNESS: Didn't - not to pay me, he should pay the person called Amin, he was at the table and he took the money.
Q. Amin was there?
A. WITNESS: Amin was there at the table yes sir. The agent he was paying for visa for them.
Q. "$5,000 which was paid at the restaurant in Malaysia and the remaining $5,000 paid upon arrival in Indonesia. Both also gave the offender their passports which he handed back to them with an Indonesian visa just before they flew to Indonesia". Is this sentence right, and I will just read it again, "Both also gave the offender their passports" ---
A. WITNESS: They did give it to Amin yes. Yeah, yeah I know - no, no it's wrong. The money and the passport paying by Amin to agent he pay for them for visa, yes.
Q. So strictly speaking it should read -
A. WITNESS: It should Amin there, the passport and the money to the fourth person which was in the restaurant called Amin, on the same table, he pick up everything …." (T.28.1 - 29.17; AB 39 - 40).
The applicant's evidence left the sentencing court to resolve the apparent conflicts between the agreed facts and his oral evidence. The sentencing judge did so in a way which was in part adverse to the applicant. He was entitled to do so.
In R v Michael Arthur Falls [2004] NSWCCA 335, an offender gave evidence which was at variance with the agreed facts. Howie J (with whom Dunford J agreed) said:
"34 … It is for the tribunal of fact to weigh the evidence of the offender and determine whether to accept it to the required standard: R v O'Neill (1979) 2 NSWLR 582 at 597. That is so even where the Crown does not call witnesses but relies upon depositions or formal statements: R v Blanchard (NSWCCA, 10 September 1991, unreported). It seems to me that it must be so where there is tendered what purports to be an agreed statement of facts.
35 The touchstone in the finding of facts by a sentencer is, of course, fairness to both parties. I see nothing unfair to an offender in the refusal of a sentencer to act upon his or her evidence, even if the evidence is undisputed by the Crown, at least where the offender has the onus of proof because it is a matter of extenuation or mitigation. …
36 But in my view this Court is not required on an appeal by an offender to infer that the sentencing court dealt with the offender in accordance with his or her evidence or to hold that the judge should have done so, even where the Crown did not dispute the evidence at the sentencing hearing. …
37 Where, as here, there is an agreed statement of facts placed before the sentencing judge, and there is also material either inconsistent with, or in amplification of, some aspect of the facts in that statement, the sentencing judge should not act upon that material without having brought it to the attention of the parties during the course of submissions so that the parties can deal with it. If the judge determines to sentence the offender on a factual basis other than in accordance with the agreed statement of facts, clearly the judge should refer to that matter during the course of the remarks on sentence. But if the sentencing judge determines to sentence the offender on the basis of the agreed facts, ignoring the material inconsistent with, or in amplification of those facts, then in my view there is no requirement for the judge to refer to the other material either during submissions or in the course of the remarks. Neither party can complain if the sentencing judge acts upon their formal agreement as to what are the relevant facts."
Dunford J, in a short concurring judgment, said in R v Falls:
"5 I agree with Howie J that by setting out in his Remarks on Sentence the facts virtually in accordance with the Agreed Statement of Facts, the learned sentencing judge indicated that he was sentencing the applicant on the basis of those facts and disregarding the evidence of the applicant in so far as it was inconsistent with, or additional to, those Agreed Facts, and implicitly rejecting the propositions that his only purpose was to have a conversation with her and that he withdrew from the attempt for any reason other than that the complainant screamed and ran away.
6 His Honour was entitled to take this approach, and I see no error in his so doing. It was for the sentencing judge to find the facts for the purposes of sentencing from the material before him including the Agreed Statement of Facts: GAS and SJK v The Queen [2004] HCA 22 at [30]- [31]. If an accused pleads guilty on the basis of an Agreed Statement of Facts, I do not see how he can complain if the judge sentences him on the basis of such Agreed Statement, and this Court should proceed on the same basis."
Those principles have been followed and applied recently in Zammit v R [2010] NSWCCA 29, Ishac v R [2011] NSWCCA 107 and Khanwaiz v R [2012] NSWCCA 168. In Zammit Howie J (with whom McClellan CJ at CL and Harrison J agreed) held at [26] - [29] that it was open to a sentencing judge to sentence in accordance with the statement of facts which had been tendered by the Crown without objection, even where it was not stated to be an agreed document, despite the fact that the offender had given contradicting evidence after its tender. This is equally true in this case.
The sentencing judge, however, did not reject the applicant's evidence out of hand but found a combination of motives, i.e. not that he was motivated solely by financial gain but that there was altruism involved as well. As his Honour appreciated, such motives were not mutually exclusive. His Honour's finding that they co-existed was open on all of the evidence. It follows that, although the sentencing judge erred in reasoning, the conclusion he reached was correct and the error was therefore not material. Accordingly, Grounds 1 and 2 have not been made out and it is unnecessary to intervene.
However, if the error were material and it is necessary to intervene, the reasoning at [82] - [95] hereof leads me to the same conclusion, i.e. the applicant was in part motivated by financial gain. It follows that in the re-exercise of the sentence discretion in which this Court must engage (Kentwell v The Queen [2014] HCA 37 at [42]) I am not satisfied that any lesser sentence is warranted in law.
As was pointed out in Kentwell:
"42 … When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be "warranted in law". A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not "warranted in law" unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. …
43 After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law. The result of the Court of Criminal Appeal's independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re-sentence. Nor is the Court required to re-sentence in a case in which it concludes that a lesser sentence is appropriate for one or more offences, but that a greater sentence is appropriate for another or other offences, with the result that the aggregate sentence that it considers warranted in law exceeds the aggregate sentence that is the subject of appeal. ..."
Leaving aside the question of whether it was open to his Honour to find that the applicant's offending was in part motivated by financial gain, I agree with his Honour's assessment of the objective seriousness of the offending and his Honour's analysis of the applicant's subjective case. None of these matters have been challenged and they accord with my own assessment of the evidence.
The offences committed by the applicant were objectively serious. They were committed on numerous occasions over a significant period of time. They were not isolated incidents. The applicant's role as a facilitator was an integral, varied and crucial role which required him to become closely involved in travel arrangements, price negotiations, visa applications, cash transactions and deal directly with intermediaries and smugglers and the criminal network involved in illegally trafficking persons who in many cases were desperate to come to Australia. As the applicant would have realised from his own experience, his conduct put numerous lives at risk.
A matter to which his Honour did not refer to but which is important is the element of moral culpability involved in the applicant's deliberate flouting of the laws of Australia relating to facilitating the entrance of illegal immigrants. It is clear that the applicant was well aware that what he was doing was illegal but he persisted in engaging in a complex series of arrangements specifically designed to circumvent those laws.
I also have regard to the fact that the sentence imposed by his Honour was in many respects a favourable one from the applicant's point of view. Each of the three groups of offences was quite distinct and involved separate offending. While the existence of an underlying theme and unifying factor would justify a considerable element of concurrency, the separate nature and elements of each group of offences would in normal circumstances have involved some cumulation of the sentences. This is particularly so in respect to counts 1 and 2 in relation to which the four matters on the schedules needed to be taken into account pursuant to s16BA of the Crimes Act 1914 (Cth). There should, at the very least, have been some differentiation between the sentence imposed for counts 1 and 2 and the sentences imposed in respect of the other counts.
Taking those matters into account, in addition to the matters already referred to by his Honour, I am satisfied that no lesser a sentence than that imposed is warranted in law.
It follows that Ground 3 has not been made out.
Conclusion
The orders which I propose are:
1. Leave to appeal is granted.
2. The appeal is dismissed.
ADAMS J: I agree with Hoeben CJ at CL, in particular the conclusion that the sentencing judge's error was immaterial. However, I would conclude that it was immaterial because, on the evidence, I am satisfied beyond reasonable doubt that his Honour's conclusion as to the financial motive of the applicant was not only open but the fact.
McCALLUM J: I have read the judgment of Hoeben CJ at CL in draft. I agree that the appeal should be dismissed, but prefer to explain my conclusion in my own words. The Chief Judge's detailed analysis of the issues allows me to do so briefly. That a comparison was drawn in the Crown's submissions to the sentencing judge between the importation of prohibited drugs and the transport of people was unfortunate. The judge's acceptance that there was an element of altruism in the applicant's conduct belies the legitimacy of any such comparison. The inference that a person facilitating "illegal travel" is involved for profit is neither one based on common sense nor one that finds any logical support in the features of the drug trade. The Crown submission on that issue went further, effectively inviting a reversal of the onus of proof (submitting that the putative "common sense" inference should be drawn unless there was persuasive evidence to the contrary). I agree with Hoeben CJ at CL that the analogy was false and should not have been adopted by the sentencing judge.
The critical issue is what flows from that conclusion. In Kentwell at [42] (set out in the judgment of Hoeben CJ at CL), the High Court explained the content of this Court's task in circumstances where the discretion of the sentencing judge has miscarried. In such a case, it is the duty of this Court to exercise the discretion afresh, without pausing to assess "whether and to what degree the error influenced the outcome". The principal error in that case was that the judge had acted on what was later understood to have been a wrong principle (error of the kind explained in the decision of the High Court in Muldrock v R [2011] HCA 39; 244 CLR 120). There can be no doubt, in such a case, that the sentencing judge's discretion has miscarried.
Here, the burden of the complaint is that the judge allowed extraneous or irrelevant matters to guide or affect the determination. Not every reference by a sentencing judge to an extraneous or irrelevant matter will lead inexorably to the conclusion that the judge's discretion has miscarried. I am not persuaded that the discretion miscarried in the present case. There was a factual contest as to the applicant's motivation for his offending. After hearing the applicant's evidence, the judge made a finding of fact that the motive was mixed. Reading the remarks on sentence as a whole and having regard to the course the proceedings on sentence took, although the judge referred to the so-called "common sense inference" as one of the reasons for that finding, I am not persuaded that the exercise of his discretionary power in determining the appropriate sentences for the offences was affected by that irrelevant consideration. Accordingly, although I would not necessarily have reached the same conclusion myself, I am compelled to the conclusion that no basis has been established for this Court to intervene.
[3]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 20 May 2015