SCC 20021026, 20021028, 20021030

and 20021031

THE QUEEN

and

JAFAR JONO, NURDIN BAHA,

HALUNG MAUDAKA and

HAMZAH PEKA

SCC 20100071 and 20100072

THE QUEEN

and

NARANG GEL and ALI TOLANG

SCC 20020818, 20020819, 20020820,

20020821 and 20020822

THE QUEEN

and

ABUNG MAOUL, HARTONO ADAM,

HUSSEIN OMAR, AMORO RUDIN

and RAJAB SUILIMEN

(Sentence)

BAILEY J

TRANSCRIPT OF PROCEEDINGS

AT DARWIN ON TUESDAY 27 MARCH 2001 AT 3.19 PM

Transcribed by:

Court Recording Services (NT) Pty Ltd

My reasons in these cases are necessarily fairly lengthy. Right, each of the 11 prisoners before the court has pleaded guilty to an offence contrary to section 232A of the Migration Act. There are three indictments before the court relating to three quite separate journeys involved in three vessels that brought people to Australia on different dates during December last year.

The matters involving the three vessels are not connected. They were dealt with together at the request of counsel because the matter has raised similar issues and because an interpreter skilled in English and Indonesian was 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 matter involving each of the three vessels was the subject of agreed and admitted facts. Those facts prepared by the Commonwealth Crown and agreed on behalf of each of the prisoners by Mr Read are marked as exhibits P1 in respect of the proceedings against each of the prisoners.

I will incorporate exhibits P1 which are separate documents concerning the three vessels as annexures to these reasons. I find the facts set out in exhibits P1 proved and I convict each of the eleven 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 present purposes. It is sufficient to provide a summary of 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, Hamzah Peka, Halung Maudaka, Nurdin Baha and Jafar Jono came to Australia on 19 December 2000 in the vessel Salfia Indah. The name of the boat is spelt S-A-L-F-I-A and then I-N-D-A-H.

They brought with them 97 passengers who are non-citizens of Australia. The captain of the vessel, Peka was approached and offered 3 million rupiah to undertake the voyage. The other three crew members were offered 500,000 rupiah each, and none of the four was an organiser of the voyage. The vessel was provided by others and the arrangements made by others.

The prisoners Narang Gel and Ali Tolang came to Australia on 27 December 2000, on the vessel Penantian, P-E-N-T-A-N-I-A-N.. They were accompanied by 49 non-citizens of middle eastern appearance. Gel and Tolang had been offered 1 million rupiah each to undertake their journey which was organised by others.

The prisoners Abung Maoul, Hartono Adam, Hussein Omar, Amoro Rudin and Rajab Suilimen came to Australia on 16 December 2000, on the vessel Farja Indah. They brought with them 117 non-citizens. The captain Maoul had been offered 4 million rupiah and the crew members 2 million each for the voyage.

Although the crew of each of the three 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 the crew 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 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 three cases before me. In the case of the Farja Indah it is also doubtful that the vessel's engine was capable of a return voyage to Indonesia.

The motivation of all eleven prisoners in committing the offence was financial gain. The money offered in each case represented a substantial sum by the standards of the prisoners. Each acted out of something approaching desperation to provide financial support for their dependents.

Each of the prisoners has co-operated fully 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 are entitled to the full credit for his co-operation and early plea of guilty, notwithstanding the apparent strength of the Crown case against them.

I turn 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 any convictions in Australia and it is not suggested that any of the prisoners has a criminal record in Indonesia.

Narang Gel and Ali Tolang were the crew of the vessel Penantian,

P-E-N-A-N-T-I-A-N. Ali Tolang is 18 years old and lives with his wife and two very young children and his father-in-law. He is the family's sole bread winner, usually earning his living as a fisherman making around 100,000 rupiah a month.

Narang Gel is also 18, he supports his two younger sisters, both of his parents are dead. He earns about 50,000 rupiah a month and struggles to pay school fees of around 7000 rupiah a month.

Hamzah Peka, Halung Maudaka, Nurdin Baha and Jafar Jono crewed the vessel Saflia Indah. The captain, Peka, is aged 40 and lives with his wife and three children aged 7, 3 and 1 and his mother. His father died when he was young and Peka was forced into the role of principal bread winner at an early age. He usually works as a fisherman, earning some 4000 or 5000 rupiah per day.

Halung Maudaka is 23 years old and from a small island fishing community. He lives with his mother and two younger siblings who attend school. He usually works as a fisherman, work he took up to support his family when his father died and he was forced to stop going to school.

Jafar Jono is around 25, he is married, with a wife and three young children to support. He survives as a subsistence fisherman on an island with no fresh water. Water has to be transported by boat from further afield.

Nurdin Baha is also from a small island community, he's around 24, married with a 2 year old child. He works both as a fisherman and a farmer living at a subsistence level.

The master and the crew of the vessel Farja Indah are all young men. The master, Abung Maoul is the oldest at 25. He supports his wife and two very young children. He also supports four siblings, two of which attend primary school. He usually works as a fisherman.

Hussein Omar is 21, a subsistence fisherman earning around 5000 rupiah per day. He supports his wife and two very young children. He has never been to school and struggles to support his family.

Amoro Rudin, Hartono Adam and Rajab Suilimen are all very young adults. None was certain as to their age, but forensic testing has established that each is an adult, albeit a young adult.

Amoro Rudin supports his parents and 14 year old sister. His father is ill and not able to work. His father is looked after by the prisoner's mother. It is said that Rudin's family often goes hungry.

Hartono Adam lives with his mother and disabled father. He usually earns a living by fishing and some farm work.

Rajab Suilimen has a father who is ill. The prisoner wanted to earn money to take his father to hospital. He is usually a fisherman earning around 5000 rupiah per day.

It is clear that the family circumstances and motivation for offending by the eleven prisoners is similar. There is some disparity as to the number of non-citizens aboard the three vessels, namely 117, 97 and 49. There are also differences in ages between the prisoners.

In offences of the present nature, I do not consider that youth, other than extreme youth which is not relevant here is a strong mitigating factor, particularly where the prisoner is not an Australian citizen or resident.

On the other hand, the status of prisoners Abung Maoul and Hamzah Peka as captains of their vessels caused 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 legislature amended the Migration Act to create the 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. 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 from unlawful entry of non-citizens to the people of Australia are obvious and significant. Very substantial financial resources are also required to deal with persons who seek to or succeed in entering this country unlawfully.

I am satisfied that 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 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 the circumstances. No other option would meet the needs of the case to both punish the prisoners and 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 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 entrants carrying diseases, plant or animal life, which could pose a 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.

Penalties at or near 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 sought to introduce non-citizens secretly and or in circumstances where the lives or health of people is put at risk because of grossly unseaworthy vessels. I turn now to sentence each of the prisoners individually.

In the case of Narang Gel and Ali Tolang, each is sentenced to imprisonment for 2 years and 6 months. I direct that each be released after serving a period of 1 year and 3 months. The release will be upon giving security via personal recognizance in the sum of $500 and that he will be of good behaviour for a period of 1 year and 3 months. The period of imprisonment and the pre-release period will date from 27 December 2000.

In relation to the vessel Salfia Indah, the three crew members, Halung Maudaka, Nurdin Baha and Jafar Jono are each sentenced to 3 years imprisonment. I direct that each be released after serving a period of 18 months. The release will be upon giving security by a personal recognizance in the sum of $500 and 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 19 December 2000.

The captain of the vessel, Salfia Indah, Hamzah Peka is sentenced to 3 years and 6 months imprisonment. And I direct that he be released after serving 1 year and 9 months imprisonment. His release will be upon giving security by a personal recognizance in the sum of $500 and that he will be of good behaviour for a period of 1 year and 9 months. In his case, his period of imprisonment and the pre-release period will date from 19 December 2000.

In relation to the vessel Farja Indah, the four crew members, Hartono Adam, Hussein Omar, Amoro Rudin and Rajab Suilimen are each to imprisonment for 3 years. I direct that each be released after serving a period a 18 months. The release will be upon giving security by a person or recognisance in the sum of $500 that each be of good behaviour for a period of 18 months. The period of imprisonment and the pre-release period will date from 16 December 2000.

In relation to the captain of the vessel Farja Indah, that is Abung Maoul, he is sentenced to imprisonment for 3 years and 6 months. I direct that he be released after serving 1 year and 9 months. His release will be upon giving security by a person or recognisance in the sum of $500 that he be of good behaviour for a period of 1 year and 9 months. His sentence is backdated to 16 December 2000.

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. I request Mr Read, with the assistance of Madam Interpreter, to ensure that each of the prisoners understands what has occurred, the sentence imposed upon them, the release order I have made and the conditions which are attached to the release order.

In particular it is important that each prisoner understands, that if after their release from prison 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 of the prisoners was 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 possession of some of the prisoners. The applications have not been opposed. I will make orders in terms of the Crown's application. The orders are in the case of Ali Tolang, that under section 19 of the Proceeds of Crime Act, the sum of 851,700 Indonesian rupiah is forfeited to the Commonwealth.

In the case of Narang Gel, the sum of 840,500 Indonesian rupiah is forfeited to the Commonwealth. In the case of Jafar Jono, the sum of 419,000 Indonesian rupiah $US2 and 700 Pakistani rupees is forfeited to the Commonwealth. And finally, in the case of Hamzah Peka, the sum of 1,036,000 Indonesian rupiah is forfeited to the Commonwealth.