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R v Abbas [2019] WASCA 64

appeal against sentence — 2 counts of facilitating the bringing or coming to Australia of a group of at least 5 persons, who were non-citizens and who travelled to Australia without a visa that was in effect, and that the offender did so reckless as to whether those persons had a lawful right to come to Australia offences contrary to s 232A(1) of the Migration Act 1958 (Cth) — 1 count of organising or facilitating the bringing or coming to Australia of a group of at least 5 persons who were non-citizens and who had no lawful right to come to Australia, and the offender did so reckless as to whether those persons had a lawful right to come to Australia offence contrary to s 233C(1) of the Migration Act — 24 counts of people smuggling offences in the alternative — original sentence imposed 12 years’ imprisonment with a 7 year 3 month non-parole period — objective seriousness — maximum penalty and mandatory minimum penalty dictate seriousness of offence — 2 counts under s 232A(1) are very serious — 1 count under s 233C(1) more egregious — repeat offence and boat used significantly larger with about twice the number of passengers than boats used on the first 2 counts — apparent offender capable and efficient organiser or facilitator in people smuggling industry — role in hierarchy of culpability higher than role occupied by captain or crew member of boat who does not have any role in people smuggling other than directing or assisting boat operation — rehabilitation — s 16A(2)(n) — difficult to make assessment of prospects of rehabilitation — offender’s literacy skills are poor and offender has only basic grasp of English language — offender not prepared to complete any prison-based programs because offender likely to be deported to Afghanistan upon release from custody — if deported, offender will be socially isolated — prospects of rehabilitation are uncertain — character — criminal history in Indonesia and sentence imposed on offender in Indonesia may not have achieved purposes for which it was imposed did not aggravate seriousness of offending — however criminal history indicated offender not entitled to leniency on ground of ordinarily good character — manifest inadequacy — alleging sentence manifestly inadequate asserts existence of implied error — necessary in determining whether sentence manifestly inadequate, to examine it from perspective of maximum penalty for offence, standards of sentencing customary observed for offence, place which criminal conduct occupies on scale of seriousness of offences of kind in question, and personal circumstances of the offender — individual sentences for each count not of severity appropriate — each individual sentence imposed on respondent (before application of totality principle) merely one year in excess of mandatory minimum penalty notwithstanding that offending in relation to each offence significantly worse than least serious category of offending — individual sentences and minimum non-parole period unreasonably or plainly unjust, not merely lenient or at lower end of available range — resentence — sentence imposed 14 years’ imprisonment with a 9 year non-parole period
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