SCC 20021015, 20021019, 20021009,

20021012, 20021023, 20021025 and

20021017

THE QUEEN

and

BOGE ISKANDER, RAHMAN SALIM,

FRENGGI TLONAEN, BRAM LAWUUNG,

WISNU, YERMIAS HENUK and

GUSTI NDUN

(Sentence)

RILEY J

TRANSCRIPT OF PROCEEDINGS

AT DARWIN ON FRIDAY 16 MARCH 2001 AT 12.03 PM

Continued from 15/3/2001

Transcribed by:

Court Recording Services (NT) Pty Ltd

HIS HONOUR: I have before me seven prisoners for sentence, for offences against section 232A of the Migration Act.

Some of the observations I now make will be familiar. I have, in recent days, sentenced others for similar offences. I will mention, but not repeat in full, all of the matters I have addressed on each of those occasions.

The present matters relate to two quite separate journeys involving two vessels that brought people to Australia on different dates in December 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 Rahman Salim, Boge Iskander, Frenggi Tlonaen and Bram Lawuung came to Australia on the vessel 'Rofina Baru' on 21 December 2000. They brought with them 30 passengers who were non-citizens of Australia. The passengers came from Iran and Iraq.

As they approached 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. The vessel was in poor condition and eventually had to be towed to the inner lagoon of West Island.

The crew were subsequently detained and taken to Darwin for processing. They have been in custody of one form or another since 21 December 2000. None of the crew has a prior criminal record. None is suggested to have been an organiser of the journey. The vessel was provided by others and arrangements were made by others. The crew was engaged at the last minute.

The prisoners Wisnu, Yermias Henuk and Gusti Ndun came to Australia on another vessel, the 'Bunga Mas', on 22 December 2000. They had with them 43 passengers who were non-citizens of Australia. They came from Afghanistan, and included one woman and three children.

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 22 December 2000.

None is said to have been an organiser of the journey. As with the other prisoners, the vessel was provided by another and arrangements were made by another. Again, the crew were engaged at the last minute. None of the prisoners 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 and consequences for sentencing of providing such a warning is one that I have addressed in other matters in recent days. I will not repeat what I have said. The observations I made have application to these cases.

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. The crew members are of different ages and have different family circumstances. However, they are uniformly poor. All, except Wisnu and Frenggi Tlonaen, were driven to commit these offences by the need to provide funds for their families. In relation to those two young men, they were each intent on improving their own lot. Whilst I accept that their financial circumstances were very poor, they do not qualify for the leniency that other offenders have received where they have acted selflessly for the benefit of members of 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. I do not regard personal deterrence of the prisoners as a significant factor in these matters. 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 Australian sovereignty. They also create quarantine risks. They impose substantial costs upon Australia in relation to detention 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 that is 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 now look at the personal circumstances of each of the prisoners.

Wisnu is 24 years old. He lives with his co-accused, Gusti Ndun. They live alone. They do not live with family members. He was unemployed and was looking for work. He had worked on coastal trading vessels. He was educated to year 11 at school. He has developed skills with engines. He wanted to obtain money so that he could use that money to fund him being certified for a better job as an engine mechanic. The temptation of the money offered was too much for him. He is not supporting his family. He was to be paid two million rupiah.

Gusti Ndun is of uncertain age. The wrist X-rays reveal that he is at least 19 years old. In the absence of further information, I treat him as a young adult, a person who is around 20 years of age. He works on a local boat, for wages. He sends money back to his parents. His father works as a fisherman. He did well in school. At the time he was recruited he was unemployed. He was to be paid two million rupiah.

When Gusti Ndun arrived in Australia he had 660,000 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 the sum be forfeited to the Commonwealth.

Yermias Henuk was the master of the vessel. He is aged 70 years. He has a wife and eight surviving children. He also has six grandchildren. He worked as a farmer on another person's land. He is the only breadwinner in the family. He was to be paid four million rupiah.

He had 268,250 Indonesian rupiah on him when he arrived in Australia. There is an application to forfeit that to the Commonwealth under the Proceeds of Crime Act. That application is not opposed and I make the order that the sum be forfeited to the Commonwealth.

He is to be treated differently from the others because of his position as captain. He had a greater responsibility and was to receive a greater reward.

In relation to the crew of the other vessel, Boge Iskander was the captain. He is aged 22 years. He is married with one young child. He lives with his wife and child and his parents. His father is too old to work. He usually works as a local fisherman. He wanted money to enable him to obtain treatment for his child. He was to be paid five million rupiah. He received 500,000 rupiah which was used for his child.

He must be treated differently from the others because of his position as captain. He had a greater responsibility and was to receive a greater reward.

Frenggi Tlonaen is aged 19 years. He lives with his family of mother and father and three siblings. One of his brothers runs a very small video business and he works in that for cigarette money. His brother makes provision for the family. He did not undertake this venture to help his family, but, rather, to provide himself with funds to set up his own business. He was to be paid 2.5 million rupiah. He is entitled to leniency because of his youth.

Rahman Salim is 56 years old. He lives with his wife. He has six children, four of whom are at school. He is a fisherman. His job on the vessel was cooking and pumping water. He was to be paid 2.5 million rupiah. This was too much for him to refuse. He was to use the money for his family.

Bram Lawuung is aged 19 years. His father is dead. He lives with his mother. There are two other brothers, one of whom is married. He got to year 11 at school. He was unemployed when he was recruited. He was to be paid 2.5 million rupiah. He also is entitled to leniency because of his youth.

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

Yermius Henuk is sentenced to imprisonment for a period of three years and three months. I direct that he be released after serving a period of one year and 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 one year and eight months. The period of imprisonment and the pre-release period will date from 23 December 2000.

Wisnu is sentenced to imprisonment for a period of two years and nine months. I direct that he be released after serving a period of one year and five 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 five months. The period of imprisonment and the pre-release period will date from 23 December 2000.

Gusti Ndun will be sentenced to imprisonment for a period of two years and four months. I direct that he be released after serving a period of one year and two 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 two months. The period of imprisonment and the pre-release period will date from 23 December 2000.

In relation to the other vessel, Boge Iskander 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 21 December 2000.

Frenggi Tlonaen will be sentenced to imprisonment for a period of two years. I direct that he be released after serving a period of imprisonment of one year. 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. The period of imprisonment and the pre-release period will date from 21 December 2000.

Rahman Salim 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 one year 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 one year and three months. The period of imprisonment and the pre-release period will date from 21 December 2000.

Bram Lawuung will be sentenced to imprisonment for a period of two years. I direct that he be released after serving a period of imprisonment for one year. 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. The period of imprisonment and the pre-release period will date from 21 December 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 order that I have made, including the conditions which attach to that release order. If there is any breach of the release order by a prisoner, that prisoner may be brought back to court to be dealt with and the unserved balance of the sentence may be reimposed.