District Court New South Wales Medium Neutral Citation: WAMIR v R [2011] NSWDC 152 Hearing dates: 7 September 2011 Decision date: 07 September 2011 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The appeal is allowed. The head sentence to be served concurrently is confirmed but the non parole period ordered by the magistrate is to be now one of ten months. Catchwords: CRIMINAL LAW - Conviction Appeal - People smuggling - Non-parole periods after Hili and Jones v The Queen. Legislation Cited: Migration Act Probation and Parole Act Sentencing Act Crimes (Sentencing Procedure) Act Cases Cited: Bugmy v R [1990] HCA 18; (1990) 169 CLR 525 Hili v The Queen; Jones v The Queen[2010] HCA 45 Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 R v Doan (2000) 50 NSWLR 115 Category: Principal judgment Parties: Cen Wamir - Appellant The Crown - Respondent Representation: Legal Aid Commisison - Appellant Director of Public Prosecutions (Cth) - Respondent File Number(s): 2011/00080213 Judgment 1HIS HONOUR: Cen Wamir appeals against two sentences of imprisonment imposed upon him in the Local Court for offences which section 233A of the Migration Act insists are to be known as "people smuggling". 2It is most unusual to find in an Act of Parliament an expression such as this: "An offence against subsection (1) is to be known as the offence of people smuggling." Now is not the time to speak at length about why it would be that parliament requires that the defence be described in that way beyond noting the highly unusual nature of such a provision. I can certainly say that when I look at the appropriate penalty for this offence I will not be influenced by that description; instead I will look at the nature of what the appellant did in determining the objective gravity of the offences. 3What he did was , as the person in charge of a relatively small vessel, he brought two people to Australia who were not entitled to enter the country. Those people were introduced to the appellant in Indonesia. They clearly voluntarily went with the appellant on a relatively lengthy voyage from Indonesia to Australia. They were detected when the appellant approached a fishing vessel asking for assistance. Police were contacted, customs officers eventually found the vessel and the appellant was arrested. 4The offences to which the appellant pleaded guilty are laid under s 233A of the Migration Act . It provides the maximum penalty of ten years imprisonment. The jurisdictional limit of two years applies where the matter is dealt with summarily, as this matter was. I was told that there is an aggravated form of that offence where five or more people are brought into the country. Where that occurs the mandatory minimum non parole-period is three years imprisonment. 5As there were two people brought into the country by this appellant, he of course is not charged under the aggravated form of the offence. 6It is important to note the difference between a jurisdictional limit and a maximum penalty. The Court of Criminal Appeal explained the difference in a decision called R v Doan (2000 ) 50 NSWLR 115. It is not the case, to put matters bluntly, that the jurisdictional limit is imposed only for a case in the worst category of offending. What a sentencing judge or magistrate does is to look at the offence and all the relevant features of the offender, determine the appropriate penalty using the maximum ten years as a guide, and if the result of that assessment is that a penalty of two years or more is appropriate, the jurisdictional limit of two years is the sentence imposed. 7Of course, in determining the appropriate penalty the sentencer must bear in mind all the purposes of sentencing including general deterrence and specific deterrence. In this case it is important that others who may be tempted to offend in the way the offender has, are made aware that if they are detected committing similar offences they will serve a significant time in custody by way of punishment. The offender, himself, must also be deterred; that is particularly relevant in this case because the offender has prior convictions involving the use of a vessel in Australian waters. I must take into account also that the offender is serving his sentence in a foreign country. Not too much can be made of this, of course, because it was the offender's decision to come to Australia but I do take into account that his time in custody is harder than would otherwise be the case. Material before me suggests that the offender is a poor Indonesian fisherman who attempted to make some money using his vessel in a different and, of course, illegal way. 8The magistrate imposed a sentence of eighteen months with a non-parole period of thirteen months, two weeks. The reasoning appears to be that a 25 per cent discount for willingness to facilitate the course of justice was allowed, reducing the penalty from the jurisdictional limit of two years to eighteen months and then a 75 per cent ratio was chosen as the ratio to be applied between non-parole period and head sentence. If that is the reasoning which led to the eighteen months head sentence being imposed then it may be inconsistent with Doan , and I will have a bit more to say about the choice of the ratio of non-parole period to head sentence later. 9As far as the head sentence is concerned I consider that it is appropriate. A significant period of imprisonment is required to fulfil the various purposes of sentencing. It is also appropriate that the sentences be served concurrently. That brings me to the selection of the non-parole period and here I need to go into a bit of history. 10Before amendments to State legislation, in particularly, the Probation and Parole Act in the late 1980s, it was common place for the ratio of non-parole period to head sentence to be in the order of 40 per cent. Changes to the Probation and Parole Act later reproduced in the Sentencing Act which in turn were reproduced in the current legislation, the Crimes (Sentencing Procedure) Act introduced the idea of what is known as the "three-quarter rule", that is, absent special circumstances the ratio of non-parole period to head sentence should be 75 per cent. Of course this was all State legislation. For Commonwealth offences, authorities from the Court of Criminal Appeal said that ordinarily the ratio between non-parole period and head sentence should be somewhere between 60 and 66 per cent. But the High Court has recently in Hili v The Queen; Jones v The Queen [2010] HCA 45 held that those authorities are no longer good law. 11So given that the Court of Criminal Appeal authorities do not apply and given that the three-quarter rule under State law does not apply, how do I select the ratio of non-parole period to head sentence? I am not unguided in this respect. High Court decisions such as Bugmy v R [1990] HCA 18;(1990) 169 CLR 525 , Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 and Hili and Jones tell me what I should do: A non-parole period is the minimum period that the offender should serve in custody. But I do take into account that in determining that period it was the common approach of judges before the rules changed in the late 1980s to impose a non-parole period of about 40 per cent of the head sentence. The combined wisdom of judicial officers suggested that non-parole periods of about that ratio would ordinarily be the minimum that an offender should serve before being released on parole. 12Having considered the specific circumstances of this case, I am satisfied that a non-parole period of much less than 75 per cent is appropriate. Indeed, were it necessary I would be prepared to say that a non-parole period of less than half the head sentence would be appropriate, but it is not necessary for me to decide precisely the appropriate ratio given that the offender has served today exactly ten months in custody. I am satisfied that that is the longest non-parole period that would be appropriate. If he had served nine months or less in custody I would probably make a similar order to that which I am about to make. 13The appeal is allowed. On each matter the head sentence of eighteen months be served concurrently to date from 7 November 2010 is confirmed but instead of the non-parole period ordered by the magistrate, I impose a non-parole period of ten months which will therefore expire on 6 September 2011 which was yesterday. ********** 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: 06 October 2011