IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

Angel, A/CJ

File Nos. SCC 20108989, 20108990, 20109545, 20108986, and 20108987

CATCHWORDS:

Sentence - Migration Act s232A

Darwin, 3 October 2001 (sentence)

#DATE 03:10:2001

HIS HONOUR: The prisoners Sarip Abakar, Rustam Ibrahim, Saffrudin Sidiq, Handy Samsuddin and Mahmud Abdollah, have pleaded guilty to a charge that, on or about 3 June this year near Ashmore Reef, they facilitated the bringing to Australia of 54 people, reckless as to whether the people had a lawful right to come to Australia, contrary to section 232A of the Migration Act, for which the maximum penalty is 20 years, and or a fine of $220,000.

The Crown facts, which are admitted by Mr Read, on behalf of the accused have been read onto the transcript, and I won't repeat them at length. The Holdfast Bay, an Australian Customs Service vessel, on 3 June at about 6 pm located an Indonesian motorised vessel the Dhita Utama in Australian waters, some hundred miles south of Ashmore Reef. There were a large number of passengers visible on board.

The vessel was intercepted, and the crew informed the officers that they were going to Australia. They were questioned, none of the crew admitted to being in charge of the vessel. They were given a notice to master and crew, in the Indonesian language, making clear that there were new penalties for people bringing illegal immigrants to Australia. The penalties were set out in that notice, including the fact they faced imprisonment for a maximum of 20 years. The crew were asked to consider this, and to return to Indonesia with their passengers. They intended to come to Australia, and said that they would proceed to Australia.

For safety reasons the vessel was taken into tow, and taken back to Ashmore Reef overnight. It is apparent from the location in which the vessel was found, that the crew had lost their way. The vessel was boarded the following day, having been overnight at Ashmore Reef, and a head count was taken. There were 54 passengers on board, 48 from Afghanistan and 6 from Iran. All aboard were detained pursuant to the provisions of the Migration Act. The prisoners were taken, and eventually arrived in Darwin on 14 June, and the passengers were taken and they arrived in Darwin on 9 June. After processing, the prisoners were arrested by the Australian Federal Police. They have been in custody since 4 June. None of them have previous convictions.

The vessel left Indonesia for Australia from a point near Bima in Sumbawa. The passengers were ferried from a beach to the Dhita Utama, offshore, in the early hours of the morning. There were seven Indonesian crew aboard the boat when the passengers went aboard.

The boat sailed for some distance until it reached Roti, where the captain of the boat and one crew member left the boat, by a small boat that had been stored at the stern. The remaining crew that is the prisoners, were directed to take the passengers to Australia. The prisoners took it in turns to steer the boat using a compass. In all, they were nine days at sea aboard the Dhita Utama.

Mr Read, who appeared for the accused, gave me details of the respective accused. I should mention that the accused, Abakar, had identification papers showing a false birth date of 1 January 1985. The accused, Samsuddin, also had false identification papers showing a false birth date of 25 May 1985. Mahmud Abdollah had papers showing a false birth date of 16 April 1984; and Safruddin Sidiq had papers saying that he was born in 1982, which was also false. All of the prisoners are adults, as this has been established, and is admitted, by X-ray results of the left wrist.

The prisoner Abakar is from Dompu. He appears to be youngest of the prisoners, and normally lives with his mother. He has two sisters aged ten and four. Since his father died he has taken on the role of the father of the family. He wanted to finish school, but left school to assist his mother financially and to enable his sisters to go to school. He earns 3000 to 4000 rupiah per day selling wood. He, like the other prisoners, initially thought the trip was to take cargo to Kupang. It was only later during the trip, once the passengers had gone on board, that he realised the ultimate destination. Nonetheless, he proceeded on that basis, agreeing to take 1 million rupiah for the trip.

The prisoner Safruddin Sidiq is 42 years of age. He is a fisherman, he nets tiny shrimp to make paste which he sells. He is married with one wife and seven children, four boys and three girls. One child only is at school, as he does not have enough money to educate the other children. His oldest boy is a labourer. He initially thought the trip was a cargo trip to Kupang. He was to be paid 1.5 million rupiah for the trip.

The prisoner Rustam Ibrahim is also from Dompu. He lives with his mother and has a younger brother, aged two. His father died this year of typhus. He continues what his father did, that is grow corn on a farm owned by somebody else. He discussed coming to Australia with his mother, and agreed to be paid one million rupiah for the trip.

The prisoner Samsuddin, like the prisoner Abakar, looks younger than the others, though, like the others, he is definitely an adult. That is, eighteen years or more. He lives with his mother and three siblings, two boys aged nine and six, and a two and a half year old sister. His parents are divorced, and he has not seen his father since he was at year three in high school. He left school to assist his mother, and agreed to be paid one million rupiah for the trip.

The prisoner Abdollah initially thought he was taking goods to Kupang. However, he continued with the trip, full well knowing he was going to Australia. He said he knew it was wrong, because the passengers did not have passports. He agreed to be paid 1.5 million rupiah for the trip. He lives with his mother, and two siblings. He has two sisters, aged seven and nine, both at school. Like the prisoner Abakar, he collects and sells wood, and has an income of roughly 3000 to 5000 rupiah per day.

I asked counsel whether there was any reason for discriminating between the prisoners, so far as sentencing them goes. Each has committed an offence against the laws of Australia. The sentencing principles in cases such as this are clear. The courts have to do their best to protect the sovereignty of Australia, and the Australian Parliament has made it clear, by fixing a maximum penalty of 20 years' imprisonment, with or without a fine of $220,000, that it treats this type of offence very seriously.

The incursion into Australia of illegal immigrants places Australia in the difficult situation of hazard and this, as the evidence before me clearly shows, is a matter that is prevalent, that is it is a common offence and one which must be stopped. In addition, the Australian public suffer large and serious costs associated with dealing with illegal immigration.

So far as the prisoners Abakar and Samsuddin are concerned, they are obviously youthful, and younger than the other prisoners, and some discount should be made on that behalf. Each are sentenced to two years imprisonment and I direct

that, upon entering a recognizance in the sum of $500 to be of good behaviour for

twelve months, that they be released after serving twelve months.

As regards the prisoners Sadiq, Ibrahim and Abdollah, they are sentenced to two years and six months imprisonment and, upon entering into a recognizance in the sum of $500 to be of good behaviour for eighteen months, I order their release after serving twelve months imprisonment.

All those sentences will be backdated to the time they first were placed in custody, that is 4 June this year.