THE SUPREME COURT OF THE NORTHERN TERRITORY

SCC 20100472, 20100473 and 20100481

THE QUEEN

and

MUHAMAD, HARUDIN and TAHIR ALI

SCC 20100988, 20100990 and 20101036

THE QUEEN

and

ALIMIN OLIWULO, SULUNG ATOK and

JON ADU

(Sentence)

BAILEY J

TRANSCRIPT OF PROCEEDINGS

AT DARWIN ON FRIDAY 30 MARCH 2001 AT 2.07 PM

Transcribed by:

Court Recording Services (NT) Pty Ltd

HIS HONOUR: Each of the six prisoners before the court has pleaded guilty to an offence contrary to section 232A of the Migration Act. There are two indictments before the court relating to two quite separate journeys involved two vessels that brought people to Australia on different dates during December 2000 and January 2001.

The matters involving the two vessels are not connected, they were dealt with together at the request of counsel because both matters raised similar issues and because an interpreter skilled in English and Indonesian is required for each of the prisoners.

Notwithstanding that approach each prisoner is to be sentenced as an individual and according to the particular circumstances applicable to him. The matters involving each of the two vessels were the subject of agreed and admitted facts. Those facts prepared by the Commonwealth Crown and agreed on behalf of each of the prisoner by Mr Read and marked as exhibits P1 in respect of the relevant proceedings against each of the prisoners.

I will incorporate exhibit P1, which are separate documents concerning the two vessels, as annexures to these reasons. I find the facts set out in exhibit P1 proved and I convict each of the six prisoners of an offence contrary to section 232A of the Migration Act as set out in the relevant indictment.

I will not recite the agreed facts for the present purposes. It is sufficient to provide brief reference to those facts. I will also refer to some additional information provided by Mr Read and which was not contested by the Commonwealth Crown. I find such additional information proved for present purposes unless otherwise indicated.

The prisoners Muhamad, Harudin and Tahir Ali arrived in Australia on 30 December 2000, on board the vessel Fajar Baru. The vessel carried 177 passengers. All of were non-citizens. The vessel was overcrowded and conditions poor.

For the prisoners Alimin Oliwulo, Sulung Atok and Jon Adu arrived in Australia on 15 January 2001, on board the vessel Wolio Kampoku. The vessel carried 148 passengers, all of whom were non-citizens. The Customs officers who intercepted the vessel described it as overcrowded and listing from side to side. The passengers described it as unsafe and lacking adequate toilet facilities and food supplies.

The captain and crew of the Fajar Baru were approached and offered money to bring people to Australia. The captain and crew of the Wolio Kampoku each suggests that they were approached to take people initially to Bali but none took any action when it became clear that Australia was to be their destination.

Although the crew of each of the two vessels was warned of the consequences of proceeding to Australia, they did so. The practice of providing such a warning is both sensible and fair. However, in many circumstances it will not provide with a realistic opportunity to desist from continuing their journey to Ashmore Reef.

In cases such as those presently before me, the attitude of the passengers on the vessel effectively precludes any attempt to return to Indonesia. The passengers are people who have endured a great deal to get to Australia and they are unlikely to agree to return to Indonesia in the face of a warning directed to the crew. The crew is usually outnumbered by the passengers. That was the case in these two cases before me.

The motivation of all six prisoners in committing the offences was financial gain. The money offered in each case was substantial by the standards of the prisoners, each acting out of something approaching desperation to provide financial support for their dependants or families.

Each of the prisoners has co-operated with the authorities. Each has pleaded guilty at the first reasonable available opportunity. Each is entitled to considerable credit for their co-operation and early pleas of guilty. Their actions have saved very considerable inconvenience and expense by avoiding the need for trials. I accept that each of the prisoners is entitled to the full credit for his co-operation and early plea, notwithstanding the apparent strength of the Crown case against each.

I turn now to consider the individual circumstances of the prisoners. There is much in common between them. Each is poorly educated and struggling to support a family in the widely acknowledged poor state of Indonesia's economy. None has convictions in Australia, aside from the prisoner Jon Adu. It is not suggested that any of the prisoners had a criminal record in Australia.

On 7 April 2000, Jon Adu was convicted of an offence contrary to the Migration Act, involving the bringing to Australia of 62 non-citizens. At that time he was a juvenile and received a sentence of 6 months imprisonment, fully suspended for a period of 5 years. Proceedings for breach of that sentence are before another court. Adu is still a very young man, his usual occupation is a fisherman. He tries to support his younger brothers of age 11 and 14. He does not know who will care for them in his absence.

His fellow crew member, Sulung Atok claims to be 24 years old. Mr Read's instructions are that this prisoner has a tragic background. He comes from a village near the border of East and West Timor. Both his parents and his brother were killed in the 1999 Timor riots and the prisoner struggles to support his three younger brothers and sister, in addition to his wife and two children.

The captain of the vessel Wolio Kampoku was Alimin Oliwulo who is said to be 38. He is usually a subsistence fisherman from a small island near Flores. He occasionally fishes from a larger vessel, diving for sea cucumbers. He lives with his parents, his wife and three children. His father has been disabled since 1979 and his wish is to have his children receive the education that he never did.

The captain of the Fajar Baru was Muhamad. He claims to be around 20, he lives with his parents and two younger sisters. He has never been to school and he tries to pick up labouring work to support the family. His mother is said to need hospital treatment and he was tempted to commit the present offence to obtain money particularly for that purpose.

Harudin is around 40 years old. He is married with three daughters and two sons. He survives as a subsistence fisherman, selling surplus fish when catches are good. He is said to have debts of about half a million rupiah and was driven to commit the offence to support his family.

Tahir Ali is said to be 18 years old. He is from a village on Roti. He lives with his mother, earning money again as a subsistence fisherman. His father is deceased and his stepfather effectively abandoned his mother.

It is clear that the family circumstances and the motivation for offending by the six prisoners is similar. There is some disparity as to the number of non-citizens aboard the two vessels, namely 148 in one case and 177 in the other. The difference is not such as to merit any distinction in sentencing. Clearly both the present cases involve a very substantial number of non-citizens.

There are also differences in ages between the prisoners. I have commented before in offences of the present nature, that I do not consider that youth, other than extreme youth which is not relevant here, is a strong mitigating factor, particularly where a prisoner is not an Australian citizen or resident.

Rehabilitation of young offenders and offenders generally does not have the same priority in relation to foreign residents, as it has in relation to those who live in Australia. On the other hand, the status of the prisoners Harudin and Alimin Oliwulo as captains of their vessels, calls for some recognition of their greater culpability in undertaking the voyage, compared with crew members.

There can be little doubt that the offences to which the prisoners have pleaded guilty are both serious and prevalent. In 1999, the Federal Parliament amended the Migration Act and created a new offence under section 232A to which the prisoners have pleaded guilty. That new offence substantially increased available penalties for conduct of the present kind. The increase is now being reflected in penalties imposed by the courts.

General deterrence must play an important role in determining sentences in the present circumstances. A clear message must be sent to those who are minded to engage in bringing non-citizens to this country, that they can expect to face a very substantial penalty.

It is not difficult to understand why offences such as the present are treated very seriously indeed. The potential risks of unlawful entry of non-citizens to the people of Australia are obvious and significant. Very substantial resources are also required to deal with persons who seek to or succeed in entering this country unlawfully.

I am satisfied the situation is such that general deterrence must at least, for the present, be given greater emphasis than other sentencing objectives, such as rehabilitation.

In imposing sentence, I am required by the Commonwealth Crimes Act to determine a sentence of a severity appropriate in all the circumstances of the offence. Section 16A of the Crimes Act requires me to consider a range of specified matters and I have done so. I am also required to consider alternatives to imprisonment and not to impose a sentence of imprisonment unless satisfied that no other sentence is appropriate in all the relevant circumstances.

In relation to the present offences, I am satisfied that a substantial term of imprisonment is the only appropriate sentence in all of the circumstances. No other option would meet the needs of the case to both punish the prisoners and to send a clear message to others who might be minded to commit similar offences.

Section 16G of the Crimes Act is relevant in the present circumstances. Section 16G provides that where a Federal sentence is to be served in a Territory prison and is accordingly not subject to remission or reduction, the court must take that fact into account in determining the length of sentence and must adjust the length of the sentence accordingly.

In the Northern Territory, prior to the abolition of remissions, the customary reduction in a prisoner's sentence for remission was one-third of the total sentence. I have taken the abolition of remissions into account and I will reduce the term of imprisonment which I would otherwise have imposed, by around one-third.

In determining appropriate sentences, I have kept very much in mind that the present offences are by no means in the most serious category of offences contrary to section 232A. In particular these are not cases of people smuggling where it is intended to introduce non-citizens into this country secretly and with all the dangers of illegal entrance carrying diseases, plant or animal life which proposes serious risk to Australia's primary production.

There was no attempt here by the prisoners to hide from the authorities or disguise what they were doing. The offences, whilst serious are correctly described as people trafficking offences rather than people smuggling. Similarly, it is significant that none of the prisoners is an organiser, each played a small but vital role in bringing non-citizens here.

The penalty is that or near maximum - the maximum should be reserved for those who bear responsibility for organising the entry of non-citizens to Australia, in particular maximum penalties should be reserved for cases where it is thought to introduce non-citizens secretly.

I come now to sentence each of the prisoners. In the case of Muhamad, Tahir Ali and Sulung Atok, each of the three is sentenced to imprisonment for 3 years and 6 months. I direct that each be released after serving a period of 1 year and 9 months. The release will be upon giving security by a personal recognizance in the sum of $500 that he will be of good behaviour for a period of 3 years.

The period of imprisonment and the pre-release period in the case of Muhamad and Tahir Ali will date from 30 December 2000 and in the case of Sulung Atok from 15 January 2001.

The two captains of the vessels, Harudin and Alimin Oliwulo are sentenced to imprisonment for 4 years each. I direct that each be released after serving 2 years. Each release will be upon giving security by personal recognizance in the sum of $500 and that he will be of good behaviour for a period of 3 years.

In the case of Harudin, his period of imprisonment and pre-release period will date from 30 December 2000. And in the case of Oliwulo the sentence and pre-release period will date from 15 January 2001.

In the case of Adu, I have considered whether as a person with a previous conviction or offending of a similar nature, his sentence should be more than his fellow crew members because he is not entitled to full credit of a man with a clear record. In the circumstances, because of his earlier conviction was as a juvenile, I have decided not to distinguish him from Sulung Atok.

Accordingly, Adu is sentenced to imprisonment for 3 years and 6 months. I order that he be released after 1 year and 9 months and his release is to be upon giving security by way of a personal recognizance in the sum of $500 and that he will be of good behaviour for a period of 3 years. In his case the sentence and pre-release period is backdated to 15 January 2001.

I note that I did consider whether Sulung Atok should receive a lighter sentence, essentially based on his recent tragic past history. I have come to the conclusion that despite the tragedy of losing his parents and his brother, the desperation which drove him to commit the offence is in reality a little different from the situation of his fellow prisoners.

Each of these prisoners was driven to offend by their circumstances, their individual desperation is a matter of degree. However the objective of general deterrence must be the dominant consideration in offences such as the present.

The Crimes Act requires me to cause to be explained the sentences I have imposed on each of the prisoners. My reasons for sentence have been translated to the prisoners. However I do request that Mr Read, with the assistance of Madam Interpreter, ensure that the prisoner understands what has occurred, the sentence imposed, the release order I have made and the conditions attached to that release order.

It is important that each prisoner understands that if after their release from prison, if there is any breach of the release order, the prisoner may be brought back to this court to be dealt with. In such circumstances and in particular if any prisoner is found to have re-offended in a similar way, the court would have the power to require them to serve the outstanding balance of their sentence of imprisonment.

The Commonwealth Crown has made applications to forfeit monies found in the possession of some of the prisoners. The applications have not been opposed and I will make orders in terms of the Crowns applications, being satisfied that the monies are tainted monies in terms of the Proceeds of Crimes Act.

The orders are in the case of Harudin: that under section 19 of the proceeds of Crimes Act the sum of 894,000 Indonesian rupiah is forfeited to the Commonwealth Crown. In the case of Tahir Ali: the sum of 344,600 rupiah, together with $US103 and 100 Afghanis is forfeited to the Crown under section 19 of the Proceeds of Crimes Act and also in the case of Muhamad: 476,000 Indonesian rupiah and $US116 is forfeited to the Commonwealth again under section 19 of the Proceeds of Crimes Act.

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