SCC 20019552, 20019554, 20019555,

20019557, 20020878, 20020879 and 20020880

THE QUEEN

and

ISMAK SABARUDIN LA ODE,

WUDARWIN KOTA, MUSIK WANCI,

NANGI LANUHU, ENDANG SARA,

SAMSUDIN M GORO and

SALIM ORAMAHI

(Sentence)

RILEY J

TRANSCRIPT OF PROCEEDINGS

AT DARWIN ON MONDAY 19 MARCH 2001 AT 10.01 AM

Continued from 16/3/2001

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 last year. 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 Endang Sara, Samsudin Goro and Salim Oramahi came to Australia on the vessel 'Bunga Farida' in December 2000. They brought with them 32 passengers who were non-citizens of Australia. The circumstances of their journey provides a dramatic demonstration of the dangers involved in journeys of this kind, and of the level of risk that both passengers and crew are prepared to accept because of their respective plights.

I will not repeat the whole of the story. It is sufficient to note that the vessel became lost at sea, there were mechanical problems with the vessel, and the captain had great difficulty in navigating. The captain was ultimately reduced to tears. The vessel hit a storm and the bilge water reached chest high. The vessel then struck rocks and was beached on La Grange island.

The passengers and crew were on that island for nine days and were only rescued when a passing vessel happened to notice their presence. During their time on the island they were short of food and water. Three men endeavoured to swim to another island in an effort to obtain water. They were swept away and were not seen again. One of those persons was the captain and the others were passengers.

The crew were subsequently detained and taken to Darwin for processing. They have been in custody of one form or another since 22 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 prisoner Ismak Sabarudin La Ode, Sudarwin Kota, Musik Wanci and Nangi Lanuhu came to Australia on another vessel, the 'Terapung Indah 3', on 28 November 2000. They had with them 96 passengers who were non-citizens of Australia. They came from Afghanistan and Pakistan.

They were 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 29 November 2000. None is said to have been an organiser of the journey. That vessel was provided by others and arrangements were made by others. In this case there has been no identified captain and I treat the prisoners as all being ordinary members of the crew.

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 all uniformly poor. All were 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. 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 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 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 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 it 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 fact 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.

Endang Sara is 33 years of age. He has been a fisherman. He has also done some farming. His father is dead. His mother is still alive. He has a wife and four children, three of whom are at school. He has had no contact with his wife since his arrest. He was to be paid one million rupiah.

Samsudin Goro is 30 years old. He lives with his wife, three sons and a daughter. His parents also live with him. His father is too old to work. He works on a farm and as a labourer on the wharf. He was to be paid one million rupiah for the journey. He helped in the engine area on the vessel.

Salim Oramahi is over 30 years of age. His father died when he was three. His mother abandoned him. He was raised by an uncle and an aunt. They also had three children of their own. He did not go to school. He is now married. He has two children, both at school. He is a fisherman. He was to be paid one million rupiah.

Wanci Musik is aged 37 years. He lives with his wife. He has three children. He works as a farmer on the land of someone else. He was to be paid one million rupiah. Half of that went to his wife. He says the crew shared the duties on the vessel.

Sudarwin Kota said that he was under 18 years of age. A wrist X-ray demonstrated that he was at least 19 years of age. He accepts that and has pleaded guilty as an adult. I have no evidence as to his precise age. In the circumstances I treat him as being a young adult of around 20 years of age. He is entitled to some leniency on account of his youth. He left primary school after year 3. He helps his mother, who does farm work. He asked for the one million rupiah, which he was to be paid for this journey, to go to his mother.

Ismak Sabarudin La Ode is aged 40 years. He has a wife and children. He also cares for a niece. His father died in 1991. Since he was 16 years old he has worked as a farmer. There was some uncertainty as to his access to the farmland and he was looking for work when recruited for this journey.

Nangi Lanuhu is the eldest at 60 years of age. He has a wife and three children. One child has left home and the other two are at school. He has worked as a farmer and as a traditional fisherman. The offer of one million rupiah was too much for him to refuse. He says the crew shared the work on the vessel.

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

Endang Sara, Samsudin Goro, Salim Oramahi are each sentenced to imprisonment for a period of two years and six months. I direct that they each 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 22 December 2000.

In relation to the other vessel, Ismak Sabarudin La Ode, Musik Wanci and Nangi Lanuhu will each be sentenced to imprisonment for a period of three years. I direct that they be released after serving a period of one year and six months imprisonment. That release will be upon giving security by personal recognizance in the sum of $500 that each 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 28 November 2000.

Sudarwin Kota 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 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 28 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 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 the court to be dealt with and the unserved balance of the sentence may be reimposed.