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Court of Criminal Appeal 20 May 2015

Zangana v R (Cth)

[2015] NSWCCA 102

Public order & justice offences
CRIMINAL LAW SENTENCE APPEAL CITIZEN PERSON APPEAL DISMISSED.

Citation: Zangana v R (Cth) [2015] NSWCCA 102
Court: NSW Court of Criminal Appeal
Date: 20 May 2015
Judges: Hoeben CJ at CL; Adams J; McCallum J

Background

The appellant pleaded guilty in the District Court to six offences under s 233A of the Migration Act 1958 (Cth), which prohibits facilitating the bringing of non-citizens to Australia where the offender is reckless as to whether those persons have a lawful right to enter. A further four offences under the same provision were taken into account on a schedule at sentencing. The maximum penalty for each offence is ten years' imprisonment.

The sentencing judge imposed a total effective sentence of five years and four months, with a non-parole period of three years and six months, all sentences running concurrently. The agreed facts established that the appellant had arranged visas, accommodation, transportation and logistical support for persons travelling to Australia by boat, and that substantial sums of money changed hands in connection with the arrangements.

At sentencing, there was a factual contest about the appellant's motivation. The appellant gave evidence denying that he personally retained any money and suggesting his involvement was partly altruistic. The sentencing judge found the motive was mixed, partly financial and partly altruistic, and this finding was challenged on appeal.

  • Whether the sentencing judge erred in drawing a "common sense inference" that a person facilitating illegal travel must be motivated by financial gain, by analogy to drug importation cases
  • Whether the evidence was sufficient to establish beyond reasonable doubt that the appellant was at least partly motivated by financial gain
  • Whether any error in the sentencing judge's reasoning led to a sentence greater than was warranted in law

Decision

All three judges agreed the appeal should be dismissed, although they reached that conclusion by slightly different paths. The Court accepted that the sentencing judge erred in drawing an analogy between people smuggling and drug importation to support the inference of financial motivation. McCallum J described the comparison as "unfortunate," and all judges agreed it had no logical basis, particularly given the judge's own acceptance that some element of altruism was present in the appellant's conduct.

The critical question was whether that error caused the sentencing discretion to miscarry. Following the High Court's guidance in Kentwell v The Queen [2014] HCA 37, the Court noted that not every reference to an irrelevant matter will cause a sentencing discretion to miscarry. Hoeben CJ at CL, with McCallum J agreeing, found that reading the sentencing remarks as a whole, the erroneous inference was not shown to have materially affected the outcome. The factual finding of mixed financial motivation was properly open on the evidence, and the sentences imposed were not shown to be excessive.

Adams J reached the same conclusion by a different route. His Honour held that, regardless of whether the erroneous inference materially infected the exercise of discretion, the evidence independently established beyond reasonable doubt that the appellant's conduct was motivated at least in part by financial gain. On either analysis, no lesser sentence was warranted in law.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge's reference to an extraneous or irrelevant matter does not automatically lead to the conclusion that the sentencing discretion has miscarried; the question is whether that consideration materially affected the outcome.
  • Drawing an analogy between people smuggling and drug importation to support a "common sense inference" of financial motivation was found to be an error, particularly where the sentencing judge had also accepted an element of altruism in the offender's conduct.
  • A finding of mixed motivation (partly financial, partly altruistic) was open on the agreed facts and the appellant's own evidence, even without reliance on the impugned inference.
  • Under the Kentwell principle, where a sentencing discretion has miscarried, the appellate court must exercise the discretion afresh; however, the Court here was not satisfied the discretion had miscarried in the first place.
  • In dismissing the appeal, the Court applied the alternative basis that even if error were established, no lesser sentence was warranted in law, a separate and independent ground for affirming the sentence.

Legislation and Cases Referenced

Legislation:
- Migration Act 1958 (Cth), s 233A
- Crimes Act 1914 (Cth), s 16BA

Cases:
- Kentwell v The Queen [2014] HCA 37; 313 ALR 451
- Muldrock v R [2011] HCA 39; 244 CLR 120
- Farkas v R [2014] NSWCCA 141
- Ishac v R [2011] NSWCCA 107
- Khanwaiz v R [2012] NSWCCA 168
- R v Michael Arthur Falls [2004] NSWCCA 335
- R v Feng Lin [2001] NSWCCA 7; 119 A Crim R 194
- Zammit v R [2010] NSWCCA 29