Citation: Bin Radimin v R; Bin Zakhria v R [2013] NSWCCA 220
Court: Court of Criminal Appeal, New South Wales
Date: 3 October 2013
Judge(s): Hoeben CJ at CL, Hidden J, Fullerton J
Background
The two appellants were Indonesian crew members on a wooden fishing vessel that carried 23 passengers, all unlawful non-citizens from Afghanistan and Pakistan, which ultimately beached on Browse Island, an Australian territory approximately 181 kilometres off the Western Australian coast. The appellants were the only crew aboard that vessel when passengers transferred onto it mid-ocean. Both were convicted by a jury in the District Court of the aggravated people smuggling offence under s 233C of the Migration Act 1958.
The appellants maintained throughout the trial that they did not know they were heading to Australia. The first appellant gave evidence that he was engaged to take people on a "holiday" cruise and had no knowledge of geography or prior experience captaining a boat. The second appellant relied on a DIAC interview in which he stated he believed the voyage was a sightseeing trip around Bali.
Following conviction, the first appellant was sentenced to 5 years and 6 months imprisonment with a non-parole period of 3 years and 3 months. The second appellant received the statutory minimum of 5 years imprisonment with a non-parole period of 3 years. Both sought leave to appeal their convictions; only the first appellant also challenged his sentence.
Legal Issues
- Whether the trial judge's directions on the accused's knowledge were insufficient, specifically whether the prosecution was required to prove that the accused knew or intended the immediate destination was part of Australia, rather than only that the ultimate destination was Australia.
- Whether the trial judge's summing-up was unbalanced and unfair, particularly in failing to detail each specific challenge made by the defence to each passenger's evidence.
- Whether the first appellant's sentence was manifestly excessive given the mandatory minimum provisions of the Act and the relatively small number of passengers involved.
Decision
Ground 1: Jury direction on knowledge of destination
The Court examined the elements of s 233C and confirmed that the offence is constituted by organising or facilitating the bringing or coming to Australia of a group of five or more unlawful non-citizens. The mention of a specific intermediate destination, such as Ashmore Reef, does not create an additional element requiring proof that the accused knew or intended that specific location to be part of Australia. The relevant question was whether the accused knew the ultimate destination was Australia, and the trial judge's directions adequately addressed that.
The Court found the evidence was sufficient to support the inference that both appellants knew the ultimate destination was Australia. Passengers gave evidence that both appellants used the word "Australia" on multiple occasions during the voyage. The first appellant was also heard to say "Ashmore Reef." That evidence, combined with the circumstances of the voyage, including the absence of navigation equipment and fishing gear, supported the jury's conclusion.
Ground 2: Fairness of the summing-up
The Court rejected the contention that the summing-up was unbalanced or unfair. Hoeben CJ at CL found that the trial judge's summary of the evidence was comprehensive and did not favour either side. Significantly, no objection to the summing-up had been raised at trial. The trial judge was not obliged to catalogue every specific challenge the defence had mounted to each individual passenger's evidence, and the failure to do so did not constitute a misdirection or miscarriage of justice.
Ground 3: Manifest excess in sentence
The Court acknowledged the considerable severity of the mandatory minimum sentences prescribed by s 236B of the Act, but noted that no specific error in the sentencing judge's reasoning had been identified. There was a real distinction between the roles of the two appellants: the first appellant steered the vessel and was paid more, which legitimately justified a modestly higher sentence. The Court was not satisfied that the sentence was unreasonable or plainly unjust, and refused leave to appeal on this ground.
Orders Made
- Grounds 1 and 2: Leave to appeal granted; appeals dismissed.
- Ground 3 (first appellant only): Leave to appeal refused.
Key Takeaways
- Under s 233C of the Migration Act 1958, proving the offence of aggravated people smuggling does not require establishing that the accused knew or intended an immediate intermediate destination to be part of Australia. It is sufficient that the evidence establishes knowledge that the ultimate destination was Australia.
- Mentioning a specific location (such as Ashmore Reef) in a charge or in evidence does not transform that location into a separate element of the offence requiring independent proof of the accused's knowledge.
- A trial judge's summing-up is not rendered unfair or unbalanced merely because it does not address every discrete challenge the defence raised against each witness. The requirement is for a comprehensive and even-handed summary of the evidence overall.
- Where no objection to a summing-up is raised at trial, an appellate court will scrutinise the ground of unfairness closely, and the absence of any contemporaneous complaint will weigh against the appeal.
- In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that manifest excess requires an applicant to demonstrate the sentence was unreasonable or plainly unjust, and that sympathy for an offender's circumstances cannot override that principle where mandatory minimum provisions apply.
Legislation and Cases Referenced
Legislation
- Migration Act 1958 (Cth), ss 233C, 236B
Cases
- Alomalu v R [2012] NSWCCA 255
- Bahar v R [2011] 255 FLR 80
- Domican v R [1992] HCA 13; 173 CLR 555
- Healey v Regina [2006] NSWCCA 235
- Huynh v The Queen [2013] HCA 6; 295 ALR 624
- Karim & Ors v R [2013] NSWCCA 23
- R v Karabi [2012] QCA 47
- R v Latif; Ex parte CEPPP [2012] QCA 278
- R v Nitu [2012] QCA 224
- R v Selu; Ex parte CDPP [2012] QCA 345
- Sunada v R; Jaru v R [2012] NSWCCA 187
- Taru Ali v R [2013] NSWCCA 211
- The Queen v Ahmad [2012] NTCCA 1; 256 FLR 423
- Vuni v R [2006] NSWCCA 171
- Williams v R (1990) 50 A Crim R 213
- Zamudin v R [2013] NSWCCA 120