New South Wales Court of Criminal Appeal CITATION : Regina v Chen [2000] NSWCCA 267 FILE NUMBER(S) : CCA 60067/00 HEARING DATE(S) : Friday 14 July 2000 JUDGMENT DATE : 14 July 2000 PARTIES : Regina v Xin Chen JUDGMENT OF : Meagher JA at 23; Grove J at 1; Bergin J at 24 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0608 LOWER COURT JUDICIAL McGuire DCJ OFFICER : COUNSEL : R. Sutherland (Crown) R. Hoenig (Applicant) SOLICITORS : Commonwealth DPP (Crown) Chong & Associates (Applicant) CATCHWORDS : Criminal Law And Procedure - Conspiring To Bring Unlawful Immigrants Into Australia - Sentence - Serious Circumstances of Offence - Sixty Nine Persons Secreted In Vessel Carrying No Legitimate Cargo - Participation In Arrangement For Transfer To Shore LEGISLATION CITED : Commonwealth Crimes Act DECISION : Appeal Dismissed. IN THE COURT OF CRIMINAL APPEAL 60067/00 MEAGHER JA GROVE J BERGIN J Friday 14 July 2000 REGINA v XIN CHEN JUDGMENT 1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by his Honour Judge McGuire in the Sydney District Court. The applicant stood trial on a count charging that he conspired with others to take part in the bringing to Australia of non-citizens contrary to a section of the Migration Act. He was convicted after trial and his Honour sentenced him to imprisonment for fifteen months. He ordered that the applicant be released on recognisance after twelve months, that recognisance conditioned that he be of good behaviour for a further three years after release. 2 His Honour also ordered the forfeiture of a vessel named the "Gruesome" which was valued at between $35,000 and $40,000. As I will later observe, it could not be suggested that the "Gruesome" was purchased with funds belonging to the applicant. 3 The particular offence at the time carried a maximum prescribed penalty of imprisonment for two years together with, or alternatively, a fine of $13,200. 4 It can be observed in passing that that maximum sentence has been considerably increased by the legislature of recent times but for my part I would accede to the submission on behalf of the applicant that the matter ought be looked at in the context of the maximum prescribed penalty as at the time that the offence occurred and was dealt with. 5 The circumstances of the offence were serious indeed. On 3 April 1990 a vessel, the "Ka Yuen", some 18 metres in length and registered in Panama, set sail from Hong Kong with a crew of fourteen. It carried no legitimate cargo but had sixty-nine human beings secreted within living quarters between the steel hull of the ship and internal bulwarks. It made its way towards the eastern seaboard of Australia. 6 The applicant is a migrant to Australia who had originally come here in January 1990. He became a citizen in about 1992. He came from Fujian Province in China which was the origin of the sixty-nine men secreted within the vessel. 7 The applicant had married in China, having returned there after taking out citizenship here. He has two children, one born in China and one here in Australia. 8 A number of other persons were involved in the attempt to bring the sixty-nine men into Australia and it is not necessary to detail all their activity. 9 The applicant was either sufficiently high in the organisation or sufficiently trusted by it to be the recipient of a large transfer of cash, part of which was used for the purchase of the vessel the "Gruesome" to which I have made earlier reference. 10 The attention of authorities was directed towards what was going on when six Chinese nationals arrived at Sydney Airport on a flight from Hong Kong. There were personal identity documents held by these men far beyond the numbers of the actual group. There were also a number of maritime navigation maps. I need not again detail all the circumstances but it has to be said that there were references to a position off the coast of New South Wales which is where the "Ka Yuen" was ultimately intercepted. 11 It is obvious that the purpose of the purchase of the "Gruesome" was to act as a tender for the purpose of moving persons from the ship which had come from Hong Kong onto land in Australia. 12 As events turned out, this was frustrated apparently by an error made by the applicant who damaged the vessel so that it could not be navigated for its intended purpose. Be that as it may, there was obviously in train a serious assault upon the migration arrangements which are and were current in this country. 13 The attack upon the sentence imposed by his Honour has been focused upon two principal submissions. The first relates to the maximum penalty of imprisonment (excluding from consideration for the moment the potential for a cumulation of fine) and the requirement of s16G of the Commonwealth Crimes Act that there be taken into account the absence of remissions in the state where the sentence is to be served. New South Wales is a state where there is a relevant absence of remissions. 14 Counsel has referred to cases commonly adverted to in this area: El Karhani, Beeforth, Bradley, Spiteri and others. He has submitted that as his Honour gave no reason for departure from the approximate reduction for the absence of remissions of about one third that this Court should conclude that there was error in his approach. 15 His Honour expressly said that he paid attention to the requirements of s16G and, for my part, I do not harbour any doubt about his Honour's statement that he did so. 16 It has been often said that the approximation of one third is no more than that, an approximation, and insofar as arithmetical exercises suggest that his Honour may have departed from that exercise, my view is, given the whole context of this matter, that the departure should not be regarded as substantial. 17 I perceive no error in his Honour's approach in this regard. 18 The second focus of the attack upon the sentence imposed by his Honour was an observation that, as against the sentence of fifteen months, the operation of the recognisance release order after twelve months being served amounts to the setting of a non-parole period which is some eighty percent of the overall sentence. 19 It is noted that it has been said in such cases that the usual proportion to be applied is somewhere in the region of between sixty to sixty-six and two-thirds percent. His Honour was vested with an appropriate discretion in relation to this matter. It was for his Honour to assess the seriousness of the involvement of this applicant in the offence. 20 What his Honour concluded was within the range of his exercise of discretion in the particular case. His Honour took into account the absence of remissions pursuant to s 16G. He took into account the period of pre-sentence custody. 21 In my view, no ground is sustained before this Court for intervention in relation to what his Honour did. 22 I propose that the application for leave to appeal against sentence be granted but the appeal be dismissed. 23 MEAGHER JA: I agree. 24 BERGIN J: I agree. 25 MEAGHER JA: The orders of the Court are, therefore, the orders proposed by Grove J. ********** 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.