R v Mohamad Dahlan Rajawati (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 20105680

CATCHWORDS:

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

Darwin, 16 August 2001 (sentence)

#DATE 16:08:2001

HIS HONOUR: The prisoner, Mohamad Dahlan Rajawati has pleaded guilty to an offence against section 232A of the Migration Act. The circumstances of that offence are that he, along with Risai Kasman sailed a vessel to the Ashmore Reef with 82 passengers aboard. The 82 passengers were 47 Afghanis, 26 Iraqis, 7 Iranians and 2 Vietnamese. They were each unlawful non-citizens of Australia for the purposes of the Migration Act.

When the party arrived at Ashmore Reef on 8 April 2001, it was met by a boarding party from HMAS Geelong. Mr Rajawati was provided with a notice advising him of the seriousness with which the bringing to Australia of non-citizens in this manner is regarded in this country. The notice provided information as to the penalties that attach to such conduct. Notwithstanding the receipt of that notice, the vessel did not return to Indonesia and the passengers and crew were then issued with detention notices and transferred to Darwin.

Upon arrival in Darwin, Mr Rajawati and Mr Kasman, who had been the only crew on board the vessel were cautioned and informed of their rights. They declined to take part in a record of interview as was their right. I'm told that Mr Rajawati was the master of the vessel and that he did most of the steering.

Mr Rajawati has been in detention since 8 April 2001. He has no prior convictions in Australia. Mr Read, who appeared on behalf of Mr Rajawati, informed me that Mr Rajawati and Mr Kasman were to be paid 1.5 million rupiah between them for the journey. That money has not yet been paid and there must be doubt as to whether it will ever be paid.

Mr Rajawati is aged 25 years and comes from south Sulawesi. He normally lives there with his wife and 2 year old daughter. He works as a farmer on someone else's land. His is a subsistence existence. His father is deceased and his mother lives on another island. He became involved in this offence when he went to Kupang looking for work.

His wife was sick and hospitalised and he was looking to make extra money. He shared accommodation with Mr Kasman. They were approached by a named individual and offered the opportunity to undertake the journey to Ashmore Reef. The journey was taken in the circumstances in the agreed facts.

It is not suggested that Mr Rajawati is an organiser of the transfer of the unlawful citizens to Australia. He was at the very 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 he is at the end of the chain, he is a vital part of the process. He and others like him 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 prisoner was warned of the consequences of proceeding to Australia and the desirability of turning back, he 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 from 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 Indonesia in the face of a warning directed to the crew. In this case, the passengers numbered 82 people and the crew, only 2.

As has been observed in relation to other cases of this kind, the prisoner was not involved in a people smuggling exercise, there was nothing covert about the operation. He was transporting the non-citizens to Australia for presentation to Australian authorities.

There was no attempt to hide from the authorities or to disguise what he had done. There can be little doubt that the offences, to which he has 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 this prisoner has pleaded guilty. That offence substantially increased the penalties applicable. The increase is now reflected in penalties imposed by the courts. Such 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. 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 a severity appropriate to the circumstances of the offence. By 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 into account in determining the length of the sentence and must adjust the sentence accordingly.

In the Northern Territory the previously existing system for 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 take into account the plea of guilty. I have noted that Mr Rajawati was the master of the vessel, that is not a matter of great significance in a case such as this where there were only two crew members.

I turn to sentence. Mr Rajawati will be sentenced to imprisonment for 4 years. I direct that he be released after serving a period of 2 years imprisonment. That release will be upon giving security by personal recognisance in the sum of $500 that he will be of good behaviour for a period of 2 years. The period of imprisonment and the pre-release period will date from the date he entered custody, being 8 April 2001.

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