R v Darman Latif, Hamid Kadir and Usman Gini (sentence)
Sentence - organising bringing groups of non-citizens into Australia

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

Riley, J

File No. SCC Nos. 20104723, 20104715, 20104722

CATCHWORDS:

Sentence - Migration Act s232A - organising bringing groups of non-citizens into Australia

Darwin, 16 August 2001 (sentence)

#DATE 16:08:2001

HIS HONOUR: This matter is similar to the matter with which I dealt earlier this afternoon. Many of my observations will be the same.

The prisoners, Hamid Kadir, Daman Latif and Usman Gini, have pleaded guilty to an offence against section 232A of the Migration Act. The circumstances of that offence are that they sailed a vessel to the Ashmore Reef, with 164 passengers aboard. Those passengers came from the Middle East. They were each unlawful non-citizens of Australia for the purposes of the Migration Act.

The agreed facts record that the motorised Indonesian vessel on which the prisoners (and a juvenile who has been dealt with elsewhere,) were the crew, arrived at Ashmore Reef on 24 March 2001. A notice was read to them warning them of the serious consequences of offending against the provisions of the Migration Act.

Notwithstanding that, there was no movement to return to Indonesia. The vessel was boarded and the 164 people, together with the four crew members were transferred to Darwin.

Investigations revealed that the vessel had left Lombok and travelled to Roti. At Roti the captain and the engineer left the vessel on a sampan, and the crew then took the vessel to Ashmore Reef. They achieved that by following a fishing boat. They were each to be paid 2 million rupiah, although it is not entirely clear whether some or all of that money has been paid, or indeed will be paid in due course.

Money was located on Mr Latif. That was in the sum of 140,000 rupiah and an application for forfeiture is made. In the absence of any opposition I grant that order. The order will be that under section 19 of the Proceeds of Crime Act 1987, the sum of 140,000 Indonesian rupiah is forfeited to the Commonwealth.

65,000 rupiah was found on Mr Gini and again an application was made for forfeiture of that money and in the absence of opposition I make that order. The order will be that under section 19 of the Proceeds of Crime Act 1987 a sum of 65,000 Indonesian rupiah is forfeited to the Commonwealth.

None of the prisoners has a prior criminal history and they have each been in custody since 24 March 2001. It is not suggested that any prisoner is an organiser of the transfer of the unlawful non-citizens to Australia. They are at the end of the chain of people who are involved in bringing such people to Australia.

As I have observed in the past in other matters, although they are at the end of that chain they are a vital part of the process. They and others like them provide the means by which the final leg of the journey is completed. It is therefore necessary for this court to bear in mind the need for a strong message to be sent to people who may contemplate involvement in the process that they face substantial penalties if they do become involved. The need for general deterrence is a prominent factor to be considered when determining an appropriate sentence.

Although the prisoners were warned by the relevant authorities of the consequences of proceeding to Australia and the desirability of turning back they did not do so. The practice 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, including the present case, it will not provide the crew with a realistic opportunity to desist in the conduct that finalises the offence which has, in reality, already been committed.

The passengers are people who are desperate to arrive in Australia. They have endured much to get to Australia and are unlikely to agree to return to Indonesian in the face of a warning directed to the crew. In this case the passengers number 164 people and the crew only 4.

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 the operation. They were transporting the non-citizens to Australia for presentation to Australian authorities. There was no attempt to hide from the authorities or 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 a new offence under section 232A to which they have pleaded guilty. That offence substantially increased the penalties applicable. The increase is now reflected in penalties imposed - by the court's.

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

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 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 has been about one third of the sentence and I take that into account.

I take into account the pleas of guilty. In this case, the master of the vessel and the engineer left before the vessel departed Roti. The crew then managed the vessel by employing the assistance of local fishermen. I propose to deal with the crew as being crew members and not as being masters of the vessel. It seems they all contributed to the journey and there was no person who has been identified as captain.

Mr Kadir is 30 years of age. He comes from Alor. He has a wife and five children, including a baby boy and four daughters. His parents are both dead. The family looks after his wife's mother. He works as a share-farmer and they have a subsistee lifestyle. He had little schooling and left school at the age of 12 years.

Usman Gini is aged 27 years, he comes from the same village in Alor as does Mr Kadir. He has been married for six years and has one child, a daughter. His 18-year-old brother and mother live with him. He works as a share-farmer. He reached grade 6 at school. As with Mr Kadir and Mr Latif, his is a subsistence lifestyle.

Darman Latif is aged 19 years, he lives in Roti in a small fishing village. He is usually employed fishing from a sampan by hand-line. He lives with his mother. His father died and at that time Mr Latif had to leave school to take responsibility for the family. He has five younger siblings. He is now head of the family and that is obviously a burden for a person so young. It was submitted to me that youth is not an important factor for consideration in the sentencing process in cases such as these. I do not accept that to be so.

In my view, the courts should continue to give emphasis to rehabilitation in relation to young offenders. This is so whether those young offenders are to remain in our community or return to a community overseas. In addition, youthful offenders are to be treated more leniently than older offenders because they make decisions without the benefit of the maturity and experience of others. I propose to accord Mr Latif greater leniency because of his youth.

Hamid Kadir will be sentenced to imprisonment for a period of 3 years and 6 months. Usman Gini will also be sentenced to imprisonment for a period of 3 years and 6 months. I direct that each of those prisoners be released after serving a period of 21 months imprisonment. That release will be upon each giving security by personal recognizance in the sum of $500 that he will be of good behaviour for a period of 21 months. The period of imprisonment and the pre-release period will date from the date they entered custody, being 24 March 2001.

Darman Latif will be sentenced to 3 years imprisonment. I direct that he be released after serving a period of 18 months imprisonment. That release will be upon him giving security by 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 the date that he entered custody, being 24 March 2001.

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