THE SUPREME COURT OF THE NORTHERN TERRITORY

SCC 20016925, 20017122,
20017123, 20017988, 20017989
and 20017991

THE QUEEN

and

BAHRUDIN, JAMAL BASIR,

MUHAMAD EMTAHIR, HASAN ANDI,

LAMILA HIRO and KASIM HIBU

(Sentence)

RILEY J

TRANSCRIPT OF PROCEEDINGS

AT DARWIN ON THURSDAY 15 MARCH 2001 AT 2.02 PM

Continued from 14/3/2001

Transcribed by:

Court Recording Services (NT) Pty Ltd

HIS HONOUR: I have before me six prisoners for sentence for offences against section 232A of the Migration Act. Some of the observations I now make will be familiar. Yesterday I sentenced others for similar offences.

The present matters relate to two quite separate journeys involving two vessels that brought people to Australia on different dates in October 2000 and in November 2000. I have heard the matters together at the request of counsel because many of the submissions to be made were applicable to all prisoners and to both sets of circumstances. Notwithstanding that approach, each prisoner is to be sentenced as an individual and according to the particular circumstances applicable to him.

The prisoners Jamal Basir, Bahrudin and Muhamad Emtahir came to Australia on the vessel 'Karya Utama' on 15 October 2000. They brought with them 33 passengers, being Afghani citizens, Iraqi citizens, Iranian citizens, and Lebanese citizens. As they approached a lagoon at the Ashmore Islands, they were intercepted by a Customs vessel. They were provided with a warning as to the consequences of their actions should they proceed. They chose to proceed.

They were subsequently detained and taken to Darwin for processing. They have been in custody of one form or another since 15 October 2000. None of the crew has a prior criminal record. None is suggested to have been an organiser.

The prisoners Andi Hasan, Kasim Hibu and Lamila Hiro came to Australia on another vessel, the 'Sejarah Masa', on 2 November 2000. They had with them 33 passengers, being Afghani, Iraqi, Iranian and Lebanese citizens. They were also read a notice warning them of the penalties attached to offences committed against the Migration Act. They proceeded, notwithstanding that warning.

They were detained and transferred to Darwin for processing. They have been in detention since 15 October 2000. None is said to have been an organiser. None of the prisoners, except Andi Hasan, has a prior criminal record.

Although the crew of each vessel was warned of the consequences of proceeding to Australia, they did so. The practise of providing such a warning is one that has been in operation for some time. In my view, it is a sensible and fair procedure. However, in many circumstances it will not provide the crew with a realistic opportunity to desist from the conduct that finalises the offence which has already been committed.

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 much 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 instances.

Each of the prisoners is an Indonesian person of very limited means. They each agreed to undertake the journey concerned when they were offered what was, to them, a substantial amount of money. They were unable to resist because of their respective impecunious circumstances. It is clear that they were not motivated by humanitarian instincts in carrying out these journeys. They were each motivated by the money involved.

They have all co-operated with the authorities and they have all pleaded guilty at an early time. They are entitled to credit for those matters.

As is to be expected, there are differences between them. Jamal Basir and Andi Hasan assumed the roles of master of their respective vessels. Andi Hasan is a repeat offender. The crew members are of different ages and have different family circumstances. However, they are uniformly poor. They were each driven to commit these offences by the need to provide funds for their families.

The prisoners have demonstrated by their co-operation, their pleas of guilty, and by the matters put to me by Mr Read, that they are remorseful. With the exception of Andi Hasan, I do not regard personal deterrence of the prisoners as a significant factor.

As has been observed in relation to other cases of this kind, the prisoners were not involved in a 'people-smuggling' exercise. There was nothing covert about either operation. They were transporting the non-citizens to Australia for presentation to Australian authorities. There was no attempt to hide from the authorities or to disguise what they had done.

There can be little doubt that the offences to which they have pleaded guilty are both serious and prevalent. In 1999 the legislature amended the Migration Act to create the new offence under section 232A, to which these prisoners have pleaded guilty. That offence substantially increased the penalties applicable. The increase is now being reflected in penalties imposed by the courts.

The offences amount to a serious violation of Australia's sovereignty. They also create quarantine risks. They impose substantial costs upon Australia in relation to detection and enforcement of the law in remote locations. Whilst these offences are serious, they are far from the most serious contemplated by section 232A of the Migration Act.

General deterrence is an important factor to be considered when determining an appropriate sentence. The offences are serious and prevalent. Whilst these prisoners may be at or towards the bottom of the chain of persons involved in bringing unlawful non-citizens to Australia, they are an essential part of that process. It is through them that entry to Australia is achieved. The courts must do all they can to deliver a message to people outside of Australia, who may contemplate involvement in exercises such as these, that they face substantial penalties if they do become involved.

In imposing sentence, I am bound to consider a range of matters provided for in the Crimes Act. I must make an order that is of a severity appropriate to the circumstances of the offence. By virtue of section 16A of the Crimes Act, I am required to consider a range of matters there specified, and I have done so.

It is necessary for me to consider other sentencing options before I pass a sentence of imprisonment. The circumstances of these matters call for a term of actual imprisonment. The matters are serious and deterrence is important. No alternative sentencing regime which would adequately meet the needs of the case has been suggested. No other sentence is appropriate in the circumstances.

Of significance for these cases is the requirement found in section 16G of the Crimes Act which provides that, where a Federal sentence is to be served in a Territory prison and is therefore not subject to remissions or reductions, the court must take that into account in determining the length of the sentence and must adjust the sentence accordingly.

In the Northern Territory the previously existing system of remissions has been legislatively removed. Section 16G therefore has application. Historically, the reduction of custodial sentences for remissions and the like has been about one-third of the sentence, and I take that into account.

I look now at the personal circumstances of each of the prisoners.

Andi Hasan was the master of the vessel 'Sejarah Masa'. He was responsible for navigation and some of the steering. He has previously been dealt with for a similar offence and was sentenced to six months' imprisonment in 1999. He is a repeat offender and not entitled to the leniency that attaches to someone who is a first offender. Personal deterrence is also important in his case.

He was paid 475,000 rupiah. He is now aged 41 years and has a wife and four children. Two of those children are at school, and two are yet to commence school. He usually worked as a labourer on building sites, earning 3000 rupiah per day. He has experience at sea. I am told that he undertook this voyage because his mother-in-law was in need of medicine and he wished to obtain funds to provide that medicine. He was to be paid a total of 2.5 million rupiah.

Kasim Hibu is 27 years old. He is married with two children, neither of whom are at school. He sometimes works as a labourer, but principally as a local traditional fisherman. He has some experience with motors and he was responsible for the motor of the vessel on the way to Ashmore Reef. He was offered two million rupiah for the journey.

Lamila Hiro is a young man. His age has not been specifically identified. He has undertaken X-rays which demonstrate that he is a mature adult. Although his age is not clear, I propose to deal with him as a person who is of sufficient youth to obtain some leniency on that account. He worked with his father as a labourer on the wharf. His father was recently injured and Lamila Hiro wished to admit his father to hospital. He undertook this journey to obtain money to enable his father to go to hospital. He was engaged as a cook and he says he did not do any other job. He was to be paid one million rupiah.

Moving now to the crew of the other vessel, Jamal Basir was the master of that vessel. He is aged 40 years and is married with four children. His wife is now dead and his eldest daughter looks after the other children. He borrowed two million rupiah in 1999 and has been working to pay it off. He saw this as an opportunity to obtain funds to attend to that.

Although he was the captain of the vessel, it seems there was not a great distinction between himself and the other members of the crew. He raised with the person who engaged him his lack of experience to be captain, and was reassured that he could do the job. Although he must be treated differently from the others by virtue of the responsibility he undertook, the distinction in this case is not so great as in some other cases.

Muhamad Emtahir is 60 years old. He is a grandfather, with a wife, children and many grandchildren. He has always been a traditional fisherman. He was to receive 640,000 rupiah for his part in the exercise. He was engaged just to help out. Sometimes he would steer and sometimes he would cook.

When Muhamad Emtahir arrived in Australia he had 703,000 Indonesian rupiah. There is an application to forfeit that to the Commonwealth under the Proceeds of Crime Act. The application is not opposed and I make the order that that sum be forfeited to the Commonwealth.

Bahrudin is 19 years old. He is entitled to leniency because of his youth. He is also entitled to some leniency because of the special circumstances that relate to him. He was the cook on the voyage. He lives in a village with his siblings. He has one younger sister and two younger brothers and they are at school. Both of his parents died in the 1990s.

He is the man of the house and the sole breadwinner. He held down two jobs, including fishing at night and labouring during the day. He is a person who managed to get to year 11 at school, but, when his parents died, he had to forego his education to look after the younger members of his family. His efforts have been directed to providing funds for his younger siblings to enable them to complete their education and have a better life.

Although the other prisoners have similar pressing circumstances that contributed to them offending on this occasion, the circumstances surrounding Bahrudin, including his youth and the obligations he has undertaken as a very young man, require special consideration.

I turn to sentence each of the prisoners. They are each convicted.

Andi Hasan is sentenced to imprisonment for a period of four years and six months. I direct that he be released after serving a period of two years and three months imprisonment. That 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 two years and three months. The period of imprisonment and the pre-release period will date from 2 November 2000.

Kasim Hibu is sentenced to imprisonment for a period of two years and nine months. I direct that he be released after serving a period of 17 months' imprisonment. That 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 17 months. The period of imprisonment and the pre-release period will date from 2 November 2000.

Lamila Hiro will be sentenced to imprisonment for a period of two years and three months. I direct that he be released after serving a period of 14 months' imprisonment. That 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 14 months. The period of imprisonment and the pre-release period will date from 2 November 2000.

In relation to the other vessel, Jamal Basir will be sentenced to imprisonment for a period of three years. I direct that he be released after serving a period of one year and six months imprisonment. That 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 one year and six months. The period of imprisonment and the pre-release period will date from 2 November 2000.

Muhamad Emtahir will be sentenced to imprisonment for a period of two years and six months. I direct that he be released after serving a period of 15 months' imprisonment. That 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 15 months. The period of imprisonment and the pre-release period will date from 2 November 2000.

Bahrudin will be sentenced to imprisonment for a period of two years. I direct that he be released after serving a period of eight months' imprisonment. That 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 18 months. The period of imprisonment and the pre-release period will date from 2 November 2000.

What I have had to say has been interpreted to the prisoners. I ask Mr Read and Madam Interpreter to take the time to further explain the sentences that have been imposed and the release orders that I have made, including the conditions which attach to that release order.

If there is any breach of that release order by a prisoner, that prisoner may be brought back to the court to be dealt with and the unserved balance of the sentence may be reimposed.

Is there anything arising, Mr Read?

MR READ: It's just the backdating in relation to those that have been in custody since 15 October. Is that meant to be backdated still to 2 November or 15 October?

HIS HONOUR: I have got the date wrong there, have I?

MR READ: Basir, Bahrudin and Emtahir, Your Honour.

HIS HONOUR: Say that again?

MR READ: Basir, Bahrudin and Emtahir. It would appear that 15 October is what you're intending to backdate it to, when they first went into custody.

HIS HONOUR: Yes, I see what I have done. I have repeated the wrong date.

In relation to the sentences I have just imposed, those relating to Jamal Basir, Bahrudin and Muhamad Emtahir will be backdated to the date they first went into custody, which was 15 October 2000, and not 2 November 2000 as I have previously indicated.

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