R v Royogo Balu, Nikos Selu, Fons Sau and Ahmad Lajina
R v Ilham Huseini, Samsudin, Hamu and Commando
R v Lasarus Adu, Faridz Manang, Bae Masrudin Kasim and Melki Anus Ello (Sentence)

Sentence - Migration Act s232A

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

Mildren, J

File Nos:

SCC20106085, 20106083, 20106082 and 20106084

SCC 20109000, 20109001, 20111409 and 20109003

SCC 20106087, 20106089, 20106090 and 20106088

CATCHWORDS:

Sentence - Migration Act s 232A

Darwin, 27 September 2001 (sentence)

#DATE 27:09:2001

HIS HONOUR:

I am going to begin with the case against Lasarus Adu, Melki Anus Ello, Faridz Manang, and Bae Masrudin Kasim.

You have all pleaded guilty to having facilitated the bringing to Australia of 120 people reckless as to whether or not these people had a lawful right to come to Australia, contrary to section 232A of the Migration Act 1958. That is a very serious offence. It carries a maximum of 20 years' imprisonment.

You all arrived near the Ashmore Islands on a fishing vessel, the Disangka, on 20 April 2001. The master of the boat was you, Melki Anus Ello. The passengers were from Iraq, Iran, Palestine, Algeria and Egypt. There were originally eight Indonesian crew members on the boat, but four left the boat and swam ashore at Roti.

What I am now about to say applies to all of you, not just Adu, Ello, Manang and Kasim.

These are serious offences because the Australian Parliament has said the Australian Government has the right to control immigration into Australia in any way it chooses to do so. Australia has agreed to take a large number of refugees from other countries each year. This has to be done in an orderly way. The bringing to Australia of illegal immigrants avoids having these people go through the proper channels. This costs the Australian Government a lot of money and may well have the effect of causing other refugees to have to wait longer for them to get permission to come to Australia.

To give you some idea of the cost, the Department of Immigration and Multicultural Affairs believes that it costs $50,000 to process each illegal immigrant coming into Australia. This cost covers the costs associated with apprehension, transfer, detention, refugee processing, court costs, and removal where necessary.

Together you have brought in 449 illegal immigrants. At $50,000 per person, the total cost to Australia is almost $22.5m, or about Rp112 billion. This money could be better spent on refugee aid where it would help many thousands of refugees, not just a few hundred. The Parliament of Australia have said that this is a very serious offence and that the courts must impose significant sentences in order to deter others, as well as you, from committing this kind of offence in the future.

For those of you who are merely crew members, the courts have laid down a range of sentences of imprisonment between two to four years for a first offence, to be released upon a suspended sentence after having served 50% of whatever head sentence is fixed. I am not allowed to go outside of that tariff or range unless there are good reasons. In the case of those who act as master, the sentencing range is three to five years for a first offence.

Although there is evidence that this offence has become much more prevalent in recent years, I have not been invited by the prosecutor to increase the tariff in any of these cases, nor has the prosecutor asked me to keep you in gaol for longer than has been the case in the past before ordering your release, or for the purposes of fixing the minimum term you must serve before you can be released on good behaviour.

In each case, I give weight to the fact that each of you has pleaded guilty and that you have all done that at a reasonably early time. Those of you who have no prior convictions will all be treated as first offenders. I note the submission that was made by Mr Read on your behalf that, because of your circumstances, it is not possible to call evidence as to your good character. I do not hold that against you. Where there are Indonesian fishermen involved in cases such as this, without prior convictions, I treat them as being persons of good character unless it is shown otherwise.

I return now to the case of Adu, Melki, Manang and Kasim.

You, Melki Ello, are aged 19. You come from the island of Roti. You were recruited whilst on the island. You were offered what to you is a lot of money: 2,600,000 rupiah. You come from a poor family and from a poor background. You were originally told that you were to go to another island to collect rice. Instead, you ended up loading people at night.

I am quite sure when you were offered that much money you must have known that you would be likely to be asked to go to Australia or to Ashmore Reef. There have been many people from Roti recruited to do this kind of work. It is a small community and I am sure that everyone on your island would be aware of what is going on.

You have pleaded guilty and I give you full benefit for that. I take into account your age and give it due weight. You are still very young and I treat that as a mitigating factor, particularly as you are a first offender. You were the master and must get a longer sentence than the others.

You will be convicted and sentenced to a term of imprisonment for three years and six months. I order that you be released and the balance of your sentence held in suspense upon entering into a recognizance to be of good behaviour for three years after you have served 21 months of that sentence.

As to Lasarus Adu, you are 20 years of age and also from the island of Roti. You and the other crew members were to be paid two million rupiah each, which is a lot of money to each of you. You also come from a poor family.

You, Faridz Manang, are 21 years of age and come from Kupang. You also come from a poor family. I do not have any doubt that you, Adu, and you, Manang, knew very well that you were likely to be taking passengers to Australia, because otherwise such a large sum of money would not have been offered to you.

In the case of you, Kasim, you are 19 years of age and come from a small village in Alor where you live with your family. You also come from a poor family. You were recruited on the island of Roti when you were there visiting relatives.

I do not see any reason to differentiate between Lasarus Adu and Faridz Manang. You will both be convicted and sentenced to three years' imprisonment. I order that you each be released and the balance of your sentences be held in suspense upon entering into a recognizance to be of good behaviour for three years after having served 18 months of those sentences.

You, Kasim, will be given a slightly lesser sentence because you are still only 19. In your case, you will be convicted and sentenced to two years and six months imprisonment. I order that you are to be released and the balance of your sentence held in suspense upon entering into a recognizance to be of good behaviour for three years after having served 15 months of that sentence.

In each case, I order that your sentences be backed to 20 April 2001 to take into account the time that you have already spent in custody.

I now turn to the case of Nikos Selu, Ahmad Lajina, Royogo Balu and Fons Sau.

You, Nikos Selu, were the master of an Indonesian fishing vessel, the Karya Rahmat. You Lajina, Balu and Sau were crew on that vessel. You were located at a position west of Ashmore Reef, heading south-west, by an Australian Customs vessel. There were a total of 94 passengers on board. These people came from Iran, Afghanistan and Iraq, but they were mostly from Afghanistan. The passengers boarded the vessel at Bau Bau in Sulawesi. In this case, the vessel was intending to make its way to Ashmore Reef but you appear to have got lost on the way. You had the opportunity to return back to Indonesia, but declined.

You have all pleaded guilty to having facilitated the bringing to Australia of 94 people reckless as to whether or not these people had a lawful right to come to Australia, contrary to section 232A of the Migration Act.

You, Selu, agreed to be paid 2.25 million rupiah and each of the crew was to be paid 1.5 million rupiah and you were told you would get the money when you returned to Kupang.

As the vessel passed the island of Roti, two other persons on board - described as `Indonesian crew' - left the vessel. It is put on your behalf that there should be some mitigation because you were under pressure.

It is put on your behalf, or at least on behalf of Lajina, that you were told to go to Bau Bau to collect provisions and return to Kupang. The passengers got on at Tenau Harbour at Bau Bau in Sulawesi and you say that you did not know anything about passengers until they arrived. You believed that you would be going to Kupang and that you would be paid your money when you arrived there. On the way, you were told by the passengers that they wanted to go to Ashmore Reef.

There was no direct threat made, but you felt that you ought to do what the passengers wanted. I do not think that is a mitigating circumstance. I do not believe that you really expected to be paid that much money simply to sail a boat back from Bau Bau to Kupang with just provisions. In any event, you must have known something was up when the passengers got on board, particularly as they were all obviously foreigners. It would have been open to you to change course for Kupang or to have left the boat at Roti. Of course you did not do these things because of the large amounts of money that had been offered to you.

You, Nikos Selu, were the master of the vessel. You come from a small island near Roti. You are 62 years of age. Apparently you were recruited in Kupang where you had gone to obtain some medicines. You understood at all times that you were to be the captain. You still have a number of young children. Because you are the master, I have to give you a more severe sentence than that of the crew.

As I have said before, general deterrence is the main aim of sentencing you, but I nevertheless do take into account your personal circumstances and give them some weight. You are also from a poor family. I cannot give you the same leniency as I might to a much younger man who, as Mr Read put it to me, is more impetuous and likely to make an ill-judged and ill-considered decision. Because of your age and experience of life, you should have known better.

In your case, you will be convicted and sentenced to imprisonment for four years. I order that you be released and the balance of your sentence held in suspense upon entering into a recognizance to be of good behaviour for three years after having served two years of that sentence.

You, Ahmad Lajina, come from the island of Roti. You come from poor circumstances and have had minimal education. You are aged 19. You, Fons Sau, are a little older, aged 22. You come from Kupang where you worked in a small foodstore. You also come from a poor family and are single. You, Royogo Balu, are aged 20 and you come from Roti. You also come from a poor family and a poor village.

To each of you, the money that was offered to you is a very large sum, bearing in mind the sort of money that you normally could earn. This explains why you would be prepared to take such a hazardous journey, knowing full well, as you must have known, that you would be breaking Australian law.

I do not think there is much difference between the three of you except that Mr Ahmad Lajina is the youngest of you, being only 19. He is convicted and sentenced to imprisonment for two years and six months. You, Fons Sau, and you, Royogo Balu, will each be convicted and imprisoned for three years.

In the case of Ahmad Lajina, I order that he be released and the balance of his sentence held in suspense upon entering into a recognizance to be of good behaviour for three years after he has served 15 months of that sentence. In the case of Fons Sau and Royogo Balu, I order that they be released and the balance of their sentence be held in suspense after entering into a recognizance to be of good behaviour for three years after they have served 18 months of that sentence.

In each case, I order that the sentences be backdated to 19 April 2001 to take into account time already spent in custody.

I now turn to the case of Husein, Hamu, Samsuidin and Commando.

Each of you have pleaded guilty to the bringing into Australia of 235 people reckless as to whether or not these people have a lawful right to come to Australia, contrary to section 232A of the Migration Act.

In this case, a quite large Indonesian fishing vessel, the Sumber Mulia, was located at a point near the Ashmore Islands. There were 235 passengers on board, mostly from Iraq or Iran, although there were also some from Palestine and Egypt. In this case, the passengers were loaded onto the Sumber Mulia at night from Mataram Beach at Lombok.

It is not suggested that the defendants did not know the purpose of the journey from the start. One further crew member left the vessel as it passed Roti. It may well be that this additional crew member was more than a crew member, and was in fact sent there to make sure that the vessel left Indonesian waters. The same comment could be made about the others. However, it was not suggested that that was the case, to me.

You, Husein, were the master of the vessel. You are aged 29 years and you come from Mataram. Your have a wife and three young children. You and your family live with your mother in a small house not far from the beach. You have been a fisherman since the age of 10. You have had no schooling. You are self-taught. You were promised 3.5 million rupiah and you took the job because the money was too good to refuse.

You have previously been convicted of an offence under the name King Latif on 20 August 1999 in the Broome Magistrates Court of having brought 16 non-citizens to Australia, contrary to section 233(1) of the Migration Act. You were then sentenced to 12 months' imprisonment. It appears that this sentence has not deterred you from re-offending.

I am not able to extend to you the same degree of leniency as I would if you were a first offender. Also, because you are the master of the vessel and clearly the eldest on board and were paid the most amount of money, you must receive a much higher sentence than the others.

There were a very large number of passengers involved in this case, which places your wrongdoing very much at the high end of the scale. You will be convicted and sentenced to imprisonment for seven years. In your case, I fix a non-parole period of three years and six months.

You, Commando, were born in Lombok. You are single and you come from a small village near the sea where you are employed as a fisherman. You were to be paid 2 million rupiah. You earn very little money and you have not had much schooling. You also have a prior conviction.

You were convicted under the name of Commando Lahaya on 20 August 1999 in the Broome Magistrates Court of having brought 16 non-citizens to Australia, contrary to section 233(1) of the Migration Act, and also received a sentence of 12 months' imprisonment. You were then involved with Husein.

You say you are 17, but the X-rays show that you are at least 19. I consider that you are probably somewhere in your early 20s. I am unable to say exactly how old you are. I cannot give you any mitigation on the basis of your age. However, as with Husein, as well as all the others, I intend to take into account in your favour that you have pleaded guilty at the earliest opportunity.

You will be convicted and sentenced to a term of imprisonment of five years. In your case, I fix a non-parole period of two years and six months.

You, Samsuidin, say that you are 18, but I think you are much older and that you are probably in your early 20s. You come from a small village in Flores. You are married and you have a seven months' old child. You are employed as a fisherman working for yourself on the beach. You have had no schooling at all and you live in a very basic village. You were offered 2 million rupiah in order to look after the engine. You were frightened by your experience because the boat was leaking.

I think it is unlikely that you will re-offend, but there must be a significant term of imprisonment because of the seriousness of the offence. You will be convicted and sentenced to imprisonment for three years and six months. I order that you be released and that the balance of your sentence be held in suspense after having served 20 months of that sentence upon entering into a recognizance to be of good behaviour for three years.

You, Hamu, say that you are 16, but the X-rays show that you are at least 19. As with the others, I think that you are in your early 20s, but I do not know exactly how old you are. You are from Sulawesi and also come from a basic village in the district of Bau Bau. You too were offered a large amount of money to work on the boat as a cook, although you knew very well that you were going to the Ashmore Reef.

You have never been to school. Your father is deceased and you live with your mother and your two younger siblings. As such, you have responsibilities as a father figure.

I see no reason to differentiate you from Samsuidin. You will also be convicted and sentenced to imprisonment for a period of three years and six months. I order that you be released and the balance of your sentence held in suspense after having served 20 months of that sentence upon your entering into a recognizance to be of good behaviour for three years.

In each case I order that the sentences and non-parole periods be backdated to 6 June 2001 to take into account the time that you have already spent in custody.

I record that I have taken into account, in each case, the provisions of section 16A and section 16G of the Crimes Act.

Mr Read, will you undertake to explain the sentences and the purposes and consequences of the recognizance release orders that I have made in accordance with section 16F(2) of the Crimes Act?

MR READ: Yes, Your Honour.

HIS HONOUR: Finally - and I say this to all of you - there is presently a new law which is about to be passed by the Australian Parliament and which will soon come into effect, which will mean that in cases such as this the courts will have no choice but to impose minimum sentences of at least eight years' imprisonment for those people who break this law and have already broken it once before.

That means that if any of you come back here again for this offence, you could well end up spending somewhere between 8 to 10 years in prison, and possibly longer. This new law will mean that even for first offenders there must be at least five years' gaol. So please, when you are released from gaol and go back home, tell everybody you know that the prison terms are now very severe and it is not worth it.

Anything arising, gentlemen?

MR FISHER: Yes, Your Honour, just one point. In relation to those prisoners who have been released on a recognizance, section 20(1)(a)of the Crimes Act requires that they be released on a recognizance giving security. So in relation to all of the release orders that Your Honour has made upon the prisoners entering into a recognizance, I would ask that a monetary amount be fixed by the court as security for that bond.

HIS HONOUR: Section 20(1)(a), is it?

MR FISHER: Yes, Your Honour. The defendants have been released pursuant to section 20(1)(b) of the Crimes Act and that refers to the person being released upon giving security of the kind referred to in paragraph (a) of section 20(1).

HIS HONOUR: What page of the reprint? Yes, here we are.

MR FISHER: Does Your Honour have a copy of it?

HIS HONOUR: Yes, I have it here.

MR FISHER: Just referring to section 20(1)(b) of the Crimes Act: `Where a person has been sentenced to imprisonment' - - -

HIS HONOUR: Yes, I see.

MR FISHER: And then it refers to `being released upon giving security of the kind referred to in paragraph (a)'.

HIS HONOUR: How much do you suggest?

MR FISHER: $500, Your Honour.

HIS HONOUR: Anything to say, Mr Read?

MR READ: Nothing to say, sir.

HIS HONOUR: Very well. In the case of each of you who have been ordered to be released after having served a portion of your sentence, I fix, by way of security, the amount of $500 as part of the recognizance.

MR READ: And that's in their own recognizance?

HIS HONOUR: Yes, in your own recognizance.

Anything else, gentlemen?

MR FISHER: No, Your Honour.

MR READ: No, sir, if the court pleases.

HIS HONOUR: Thank you. Adjourn the court.

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