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District Court 7 September 2011

WAMIR v R

[2011] NSWDC 152

Public order & justice offences
CRIMINAL LAW CONVICTION APPEAL PEOPLE SMUGGLING NON

Citation: WAMIR v R [2011] NSWDC 152
Court: District Court of New South Wales
Date: 7 September 2011
Judge(s): Berman SC DCJ

Background

The appellant was the person in charge of a small vessel that transported two Indonesian nationals to Australia without authority to enter the country. He was approached by and ultimately arrested after Australian customs officers located the vessel. He pleaded guilty to two offences of people smuggling under section 233A of the Migration Act, which carries a maximum penalty of ten years' imprisonment.

Because the matter was dealt with summarily in the Local Court, the jurisdictional limit of two years applied. The aggravated offence, which carries a mandatory minimum non-parole period of three years, did not apply because the appellant transported only two people, not five or more.

The Local Court magistrate imposed concurrent sentences of eighteen months with a non-parole period of thirteen months and two weeks. The appellant appealed against those sentences to the District Court.

  • Whether the head sentence of eighteen months was appropriate given the jurisdictional limit, the maximum penalty, and the relevant sentencing purposes
  • Whether the magistrate's reasoning in setting the head sentence was consistent with the Court of Criminal Appeal's decision in R v Doan
  • How to determine the appropriate ratio of non-parole period to head sentence for a Commonwealth offence, following the High Court's decision in Hili v The Queen; Jones v The Queen [2010] HCA 45, which overturned previous Court of Criminal Appeal authorities on that question

Decision

Berman SC DCJ confirmed the eighteen-month head sentence as appropriate. His Honour noted the need for general deterrence, given that others tempted to commit similar offences should understand they face significant custody. Specific deterrence was also relevant, as the appellant had prior convictions involving the use of a vessel in Australian waters. His Honour acknowledged, as a mitigating factor, that serving a sentence in a foreign country is harder than serving it domestically, and noted that the appellant appeared to be a poor Indonesian fisherman who had sought to make money in an unlawful way.

On the non-parole period, His Honour addressed the state of the law following Hili and Jones. Before legislative changes to State sentencing legislation in the late 1980s, the conventional ratio of non-parole period to head sentence was approximately 40 per cent. Subsequent State legislation introduced the "three-quarter rule," requiring a 75 per cent ratio absent special circumstances. For Commonwealth offences, Court of Criminal Appeal authorities had set the ratio at between 60 and 66 per cent, but Hili and Jones confirmed those authorities are no longer good law.

With no binding rule applying, His Honour turned to High Court authority establishing that a non-parole period represents the minimum time an offender must serve before being considered for parole. His Honour drew on the historical pre-legislative norm of approximately 40 per cent as a relevant indicator of what courts had previously regarded as the appropriate minimum. Having regard to the specific circumstances, His Honour was satisfied that a non-parole period of well under 75 per cent was appropriate and that less than half the head sentence could be justified. Because the appellant had by that date served exactly ten months in custody, His Honour set the non-parole period at ten months.

Orders Made

  • Appeal allowed
  • Head sentence of eighteen months on each matter, served concurrently from 7 November 2010, confirmed
  • Non-parole period reduced from thirteen months and two weeks to ten months, expiring 6 September 2011

Key Takeaways

  • The District Court confirmed that a jurisdictional limit in summary proceedings is not a ceiling reserved for the worst category of offending. A sentencing court assesses the appropriate penalty by reference to the full statutory maximum and imposes the jurisdictional limit where that assessment yields a penalty at or above it.
  • Following Hili v The Queen; Jones v The Queen [2010] HCA 45, Court of Criminal Appeal authorities that previously directed a non-parole period of 60 to 66 per cent of the head sentence for Commonwealth offences are no longer good law.
  • The three-quarter rule under New South Wales State sentencing legislation does not apply to Commonwealth offences.
  • Where no binding rule governs the ratio, the historical judicial practice of setting non-parole periods at approximately 40 per cent of the head sentence retains relevance as a guide to the minimum a court would ordinarily regard as appropriate before release on parole.
  • General deterrence carries significant weight in people smuggling cases, as does the additional hardship of serving a sentence in a foreign country as a mitigating consideration, though the latter is not to be overstated where the offender voluntarily travelled to Australia.

Legislation and Cases Referenced

Legislation
- Migration Act (Cth), s 233A
- Probation and Parole Act (NSW)
- Sentencing Act (NSW)
- Crimes (Sentencing Procedure) Act (NSW)

Cases
- Hili v The Queen; Jones v The Queen [2010] HCA 45
- R v Doan (2000) 50 NSWLR 115
- Bugmy v R [1990] HCA 18; (1990) 169 CLR 525
- Power v The Queen [1974] HCA 26; (1974) 131 CLR 623