Edward Nafi v The Queen

• Jurisdiction: Northern Territory
• Judge: Riley CJ,Blokland J,Barr J
• Judgment Date: 03 August 2012
• Date: 03 August 2012
• Docket Number: FILE NO: 17 of 2011
• Court: Court of Criminal Appeal

[2012] NTCCA 13

COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

IN THE COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Judgment of:

Riley CJ, Blokland & Barr JJ

FILE NO: 17 of 2011

Between:

Edward Nafi

Applicant

and

The Queen

Respondent

REPRESENTATION:

Counsel:

Appellant: I Read

Respondent: G Rice SC

Mokbel v Director of Public Prosecutions (Vic) [2008] VSC 433; R v His Honour Judge Noud ex parte MacNamara [1991] 2 Qd R 86, applied

Birkeland-Corro v Tudor-Stack[2005] NTSC 23; R v Elkedra and Corbett[2010] NTSC 71, approved

Grassby v R (1989) 168 CLR 1, followed

Fisher v Hebburn Ltd (1960) 105 CLR 188 at 194; Geraldton Building Co Ltd v May (1977) 136 CLR 379; Maxwell v Murphy (1957) 96 CLR 261 at 267; McMillan v Pryce(1997) 115 NTR 19; Nine Network Australia Pty Ltd v McGregor SM and Ors (2004) 14 NTLR 24; R v Horsham Justices, ex parte Farquahson[1982] 2 WLR 430; R v Kidman (1915) 20 CLR 425; The Queen v Studenikin (2004) 147 A Crim R 1; Trennery v Bradley(1997) 115 NTR 1, referred to

Migration Act 1958 (Cth) s 236B

Migration Act 1958 (Cth) s 236B

Justices Act (NT), s 112 and Pt V; The Border Protection (Validation and Enforcement Powers) Act (2001) (Cth), s 3(2); Criminal Code (NT) s 1, s 3(2), s 298(1), s 305 and s 336

STATUTES — Acts of Parliament — interpretation — particular words and phrases — ‘repeat offence’ — whether the appellant had been convicted of a repeat offence — the operative date for a ‘repeat offence’ is the date of conviction —

STATUTES — Acts of Parliament — interpretation — particular words and phrases — ‘proceedings’ — whether proceedings had commenced — proceedings had commenced prior to the commencement of the s 236B — proceedings commenced with the filing of an indictment in the Supreme Court —

CRIMINAL LAW — Committal proceedings — powers of Magistrate — what power is a Magistrate exercising — Magistrate is exercising executive power at committal proceedings

REASONS FOR JUDGMENT

(Delivered 3 August 2012)

Barr J

Riley CJ and

1 On 19 May 2011 the applicant was convicted of having facilitated the bringing to Australia of a group of 33 people who had no lawful right to come to Australia, being reckless as to whether they had a lawful right to come to Australia, contrary to section 233C of the Migration Act 1958 (Cth). The offending took place between 5 June 2010 and 15 June 2010.

2 In the course of submissions in relation to sentence an issue arose as to whether the conviction was a ‘repeat offence’ within the meaning of that expression in the Migration Act. The consequence of the offence being a repeat offence was that the applicant became liable to a mandatory minimum term of imprisonment of eight years with a non-parole period of five years. The sentencing judge determined that the offence was a repeat offence and sentenced the applicant to imprisonment for the mandatory minimum term.

3 The applicant sought leave to appeal and also sought an extension of time within which to appeal. Both applications were refused by a single judge of the Court and the applicant, pursuant to s 429(2) of the Criminal Code (NT), then applied for the matters to be determined by the Court of Criminal Appeal. The sole ground of appeal which the applicant sought to argue was that:

The learned sentencing Judge erred in finding that the applicant's conviction was relevantly a ‘repeat offence’ pursuant to s 236B(5)(b)(i) Migration Act 1958 (Cth), and accordingly held in error that the mandatory minimum term of imprisonment applicable was eight years imprisonment with a non-parole period of five years.

The historical context

4 The applicant was apprehended for an offence against s 232A of the Migration Act on 30 June 2001(the ‘first offence’). It was alleged that he had facilitated the bringing to Australia of a group of 108 people who had no lawful right to come to Australia. He was brought before the Court of Summary Jurisdiction in July 2001 and was committed to the Supreme Court on 28 August 2001

5 On 27 September 2001 a new sentencing regime was introduced by the Border Protection (Validation and Enforcement Powers) Act 2001 (Cth). The amending provision, inter alia, amended the Migration Act by including s 233C which provided for the mandatory minimum penalties referred to above for a repeat offence.

6 On 1 October 2001 an indictment was filed in the Supreme Court alleging an offence contrary to s 232A of the Migration Act. On 3 October 2001 the applicant was convicted and sentenced to imprisonment for a period of four years with a non-parole period of two years.

The issues

7 As the applicant has submitted, the chronology of his offending places the first offence at a time prior to the introduction of s 233C of the Migration Act, with the indictment being filed and the sentence imposed a few days after commencement. The second offence occurred some nine years later, shortly after s 236B of the Migration Act was enacted. The issue for determination is whether the conviction of the applicant for the 2011 offence was a ‘conviction for a repeat offence’ for the purposes of s 236B(5)(b)(i) of the Act.

8 Section 236B was enacted in substitution for s 233C of the Migration Act with effect from 31 May 2010. The section provides as follows:

Mandatory minimum penalties for certain offences

• (1) This section applies if a person is convicted of an offence against section 233B, 233C or 234A.

• (2) This section does not apply if it is established on the balance of probabilities that the person was aged under 18 years when the offence was committed.

• (3) The court must impose a sentence of imprisonment of at least:

  • (a) if the conviction is for an offence against section 233B — 8 years; or

  • (b) if the conviction is for a repeat offence — 8 years; or

  • (c) in any other case — 5 years.

• (4) The court must also set a non-parole period of at least:

  • (a) if the conviction is for an offence to which paragraph (3)(a) or (b) applies — 5 years; or

  • (b) in any other case — 3 years.

• (5) A person's conviction for an offence is for a repeat offence if:

  • (a) in proceedings after the commencement of this section (whether in the same proceedings as the proceedings relating to the offence, or in previous proceedings), a court:

    • (i) has convicted the person of another offence, being an offence against section 233B, 233C or 234A of this Act; or

    • (ii) has found, without recording a conviction, that the person has committed another such offence; or

  • (b) in proceedings after the commencement of the Border Protection (Validation and Enforcement Powers) Act 2001 (whether in the same proceedings as the proceedings relating to the offence, or in previous proceedings), a court:

    • (i) has convicted the person of another offence, being an offence against section 232A or 233A of this Act as in force before the commencement of this section; or

    • (ii) has found, without recording a conviction, that the person has committed another such offence.

‘non-parole period’ has the same meaning as it has in Part IB of the Crimes Act 1914.

9 The applicant submitted that s 236B(5)(b) of the Act should be interpreted to apply only to proceedings commenced after the commencement of the Border Protection (Validation and Enforcement Powers) Act 2001. It was submitted that the proceedings for the first offence commenced with the committal order made in the Court of Summary Jurisdiction on 28 August 2001, predating the mandatory penalty regime introduced by s 233C of the Migration Act and that, therefore, the new mandatory regime did not apply to the proceedings.

10 There are at least two problems with the interpretation proposed by the applicant. The first is that addressed by the sentencing judge when her Honour observed that there was no ambiguity in the provision and went on to say:

It seems to me that if there are proceedings on foot after the commencement of the Act and the accused was convicted of a relevant offence in those proceedings, then there is a repeat offence within the meaning of the Act. To construe the section in the manner contended for by the defence would be to impermissibly add the word ‘commenced’ into the phrase ‘proceedings after the commencement of the Act’. It would be to read it ‘in proceedings commenced after the commencement of the Act’. If proceedings were in existence partially before and partially after the commencement of the Act, I can see no way that you can say that they were not proceedings after the commencement of the Act. They are both proceedings before the commencement of the Act and proceedings after the commencement of the Act and fall squarely within the definition.

11 In the submission of the applicant, to achieve that result, her Honour must have fallen into error by inserting words into the provision as follows:

If proceedings were in existence partially before and partially after the commencement of the Act I can see no way that you can say that they were not proceedings after the commencement of the Act. They are both proceedings before the commencement of the Act and proceedings after the commencement of the Act and fall squarely within the definition.

12 Contrary to the submission, the approach adopted by her Honour did not require the addition of those words to the provision. The words were inserted by her Honour to make plain her approach to the question of interpretation. That approach reflects the plain meaning of the words of the section.

13 The second problem with the proposed interpretation is that, in the circumstances of this matter, proceedings against the applicant for the first offence were not in fact commenced until after the commencement of the amending legislation. The proceedings in the Supreme Court commenced...