R v Sarafudin Usman and ors (sentence)
Sentence - Migration Act s232A

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

Angel, A/CJ

File No. SCC 20112092, 20112093, 20112095, 20112096 and 20112097

CATCHWORDS:

Sentence - Migration Act s232A

Darwin, 5 October 2001 (sentence)

#DATE 05:10:2001

HIS HONOUR: Landa Ibrahim, Sopian Samsuddin, Sarafudin Usman, Mohamid Ali Ruslin and Ahamid Jamaludin have each pleaded guilty to a charge that they facilitated the bringing to Australia of a group of five or more non-citizens, namely 76 non-citizens contrary to section 232A of the Migration Act 1958 for which the maximum penalty is 20 years imprisonment with or without a fine.

The Australia Customs Vessel Botany Bay, acting on information, detected the illegal entry of the vessel KLM Cahaya Abadi at about 1215 hours on 2 August in the reef surrounding the Ashmore Islands, about 11 nautical miles inside Australian territorial waters.

On board that vessel was 76 passengers and five Indonesian crew. Of the 76 passengers, 73 were from Afghanistan, two from Iraq and one from Iran. The vessel had left Java on 12 July. The passengers had been ferried aboard and the trip commenced with five crew and a captain. The captain, who was once one of the principle organisers of the trip, left the boat at Roti.

The prisoner Ibrahim, when conversing with Department of Immigration officers, later said that he had been recruited for the voyage and was to be paid 1 million Indonesian rupiah. He knew from the outset he was going to Ashmore Reef and that he would inevitably end up in prison.

The particular offence is relatively unremarkable. The trip was taken to Ashmore Reef where the boat, as I have said, was intercepted by the Australian Customs Vessel Botany Bay. The crew were given the option of returning to Indonesia and were given notice that they faced imprisonment for a maximum of 20 years. Nonetheless they said they were going to Australia when the vessel was re-boarded later, the Australians having left the vessel for a period.

An Immigration detention notice to the crew members and passengers was given and all aboard, not having visas or being allowed to enter Australia, were detained pursuant to the provisions of the Migration Act. They were transferred to another vessel, the Motor Vessel Samson Explorer and taken to Darwin, arriving on 7 August at about 2000 hours.

With the exception of Sopian Samsuddin, also known as Samsuddin Ibrahim, the prisoners do not have a prior criminal history. All of them have been in custody since 2 August.

The prisoner Samsuddin was prosecuted to this same offence on 12 December last year, charged that contrary to section 232A of the Migration Act, he was involved in bringing to Australia 32 non-citizens.

His age was in doubt and he was given the benefit of the doubt. He was dealt with in the Darwin Juvenile Court as a juvenile, on 6 March this year and sentenced to six months detention. That sentence was backdated to 22 December 2000 and he was released on recognizance. It is a significant sentencing factor that he has re-offended within a relatively short time.

None of the occupants of the vessel said they were the captain of the vessel and I proceed on the basis that they are to be sentenced as ordinary crew members.

The accused Ibrahim is 25 years of age, from Dompu. He lives alone, having separated from his wife of three years, recently. He has a 2-year old daughter who lives with his wife's mother. He lives in rented accommodation, ordinarily as a labourer cutting wood, earning some 3 to 5000 rupiah per day. He has no debts.

He was approached by a person who offered him 500,000 rupiah to take a cargo from Surabaya to Kupang. That sum of money of 500,000 rupiah was larger than the normal pay for such a voyage. He went from Dompu to Surabaya and was told about the trip to Ashmore reef which he undertook.

The prisoner, Jamaludin is 24-years of age. He lives with his wife, grandmother and a younger sister and has a daughter aged 3. He works the family farm, assisting his grandmother. He has no debts.

He was offered 500,000 rupiah, discussed the matter with his wife and negotiated with the person who offered to receive 1 million rupiah for the trip, of which half was to be paid in advance. That is 500,000 rupiah.

The prisoner Ruslin is the youngest looking. I have observed him in the dock. He apparently turned 18-years of age this year and comes from Bima. He lives on his uncle's banana farm, his parents having died when he was very young.

Recently, prior to this trip in question, he had been working on the local wharf for two days a week earning some 5000 rupiah per day. He agreed, for the sum of 500,000 rupiah, to do a trip.

The first time he became aware that it was a trip to take passengers was when he woke up and the boat was being boarded. The passengers were already on the vessel when he became aware for the first time of the true nature of the trip. He apparently had cooking duties on the trip.

The prisoner Usman is a 18-year old from Bima. He was selling newspapers earning some 2 to 3000 rupiah per day, when he was told of the prospects of a trip from Surabaya to Kupang. He was offered 500,000 rupiah for that trip.

When he became subsequently aware of the nature of the trip carrying passengers to Ashmore Reef, apparently the captain, who as I have said left the vessel at Roti, said he did not have to go if he did not want to, but he chose to go.

He has three younger siblings and is uneducated.

The prisoner Samsuddin was dealt with, as I have already related, by the Juvenile Court earlier this year. He was in custody from 12 December last year to 6 March this year. He was ordered to be released by the court.

There was a sentence of six months detention passed and it is apparent that he has not served that six months detention. I am not told the details but apparently the present offence is a breach of a recognizance. I have not been asked to deal with that breach.

I have previously related that Samsuddin was given the benefit of the doubt about his age when he was dealt with by the Juvenile Court. It is not without significance that when arrested this time, he gave his age as 20-years of age.

He, in common with some of his co-defendants, is from Dompu. He is educated having finished junior high school level. He did this trip for the same captain as the previous trip.

Upon his release in March this year he was returned to Indonesia at Australian public expense to live with his grandmother. He was paid 1 million rupiah for the first trip, a half prior to leaving Indonesia and a half upon his return.

Mr Read, for the accused, informed me that his father has three wives and is in debt. Samsuddin, apart from giving money to his grandmother, apparently supports two siblings aged 10 and 6. Mr Read was instructed that Samsuddin was requested by his father to do another trip to raise more money.

The sentencing principles in relation to this type of offending are well known. The principal principle is that of general deterrence and matters personal to the accused are of lesser weight than otherwise they might be.

The Federal Parliament has laid down a maximum penalty of up to 20 years imprisonment demonstrating that the Australian public take very seriously illegal incursions into Australian sovereignty.

The financial status of the accused renders the question of a fine irrelevant for sentencing purposes and this case in common with other like cases is to be dealt with by the imposition of terms of actual imprisonment.

The offending is, of course, contrary to Commonwealth law and accordingly, I am to have regard to the Commonwealth Sentencing Act and I do so. The abolition of remissions for good behaviour in prison having been abolished in the Northern Territory is a relevant circumstance and I am to provide a discount on that account in virtue of the Commonwealth legislation.

I turn now to impose terms of actual imprisonment in respect of the accused.

The accused Ruslin and Usman, Mr Read submitted, should be given some discount on account of their age and that their participation was somewhat less than the other crew members. I agree with that submission and will give some discount in that behalf.

With the exception of Mr Samsuddin who has re-offended and must be dealt with on a different basis, each of the accused is imprisoned for a period of two years and six months.

The accused Ruslin and Usman, I direct to be released after serving one year on their entering a recognizance to be of good behaviour for a period of two years and the sum of $500.

The other crew members I direct to be released after serving one year and three months upon entering a like recognizance; that is, in the sum of $500 to be of good behaviour for a term of two years.

So far as Samsuddin is concerned, he is to be dealt with less leniently. As I have said, he re-offended relatively quickly after his last bout in court. He is sentenced to three years and six months imprisonment and I direct that he be released after serving one year and nine months upon entering into a recognizance to be of good behaviour for a term of two years in the sum of $500.

The sentences in relation to the prisoners Ibrahim, Samsuddin, Usman, Ruslin and Jamaludin are all backdated to 2 August 2001, to take account of their time spent in custody.

Is there anything arising from that? I think that completes that matter does it not?

MR READ: Yes, sir.

MR FISHER: Yes.

HIS HONOUR: I now turn to the other matter.

Mohammed Karim, Yunus Putra, and Hajab Akbar pleaded guilty to a charge that on or about 4 May this year near Ashmore Reef and elsewhere, they facilitated the bringing to Australia of a group of five or more people, namely 65 people, reckless as to whether the people had a lawful right to come to Australia contrary to section 232A of the Migration Act.

The offence relates to the arrival at Ashmore Reef on 4 May of an un-named Indonesian motorised vessel carrying 65 unlawful non-citizens and three crew, 39 of the passengers coming from Iraq and 26 from Iran.

The vessel had run aground and the passengers had alighted onto the Middle Island at Ashmore. The Customs officers towed the vessel to a mooring point in the inner lagoon of the West Island on 5 May.

An Immigration Department Indonesian language tape was played to the crew and to the master of the vessel. Karim, the master of the vessel, was handed a written copy of the document in the Indonesian language which made clear that there were new penalties in relation to this type of offending and that if people were illegally taken into Australian territory they faced a maximum term of imprisonment of 20 years. They were asked to consider this and to prepare to return to Indonesia with the passengers.

In fact the vessel had almost run out of fuel and was unable without further fuel to return to Indonesia, although Mr Fisher tells me that upon request this was available. But all events, they chose not to return to Indonesia.

On 7 May the passengers and crew having been placed in migration detention were transferred to the Samson Explorer and taken back to Darwin, arriving on 10 May.

Department of Immigration officers were told that the passengers boarded the vessel at Flores on 30 April. The prisoners were arrested by members of the Australian Federal Police.

The journey in all took five days. The crew took turns to steer and navigate during the voyage and passengers were instructed to stay below deck during the day.

A total of 866,100 Indonesia rupiah was located in the possession of Karim by the Australia Federal Police at the time of his arrest and a further $US150 was subsequently located in his clothing by Northern Territory Correctional Services. The sum of $US121 was located in the clothing of the prisoner Putra, and the sum of $US120 was located in the clothing of the prisoner Akbar.

The prisoners have been in custody since 5 May and have no previous convictions. The Crown have asked for forfeiture of those seized sums of money and that order is not opposed.

Turning to the personal circumstances of the prisoners.

Karim is from Kupang and is aged 38-years. He lives with his wife and two children, respectively aged 6 and 1 and a half. His ordinary income is 5000 rupiah per day fishing with a line from a sampan. His family is in good health and he has no debts.

He was approached initially by a man at the local wharf saying that if he took a party safely to Ashmore Reef he could keep the boat which he was shown. He sailed to Flores where passengers were taken on board and was given money for petrol and supplies. The money in his possession was some of that money, that is petrol and supply money.

The prisoner Akbar is 38-years of age from Alor. He is a farmer who grows corn on a quarter acre family block. He lives with his wife and has two boys aged 11 and 6 at school. He also has a 1 year old daughter. He has no debts and has two younger siblings at home which are his responsibility.

Previously he had worked at Surabaya and has some savings though I was not told how much. His employer at Surabaya went broke which resulted in him returning to where he works the quarter acre family block. He was also recruited for this trip at the local wharf.

The prisoner Putra is much younger than the other two, he is 18 or 19-years of age, educated to year 5 at primary school. He fishes with his father. His parents have recently separated and he lives with his mother and younger sister. He provides fish to his mother who barters the fish for food for the family.

He went to Kupang to earn money on bigger fishing boats. It was there that he was approached to do the present trip. Like Karim he was offered the boat to keep if he successfully negotiated the trip to Ashmore Reef.

I will not repeat the general sentencing principles applicable to matters such as this. I earlier reiterated some of them and I dealt with like cases earlier this week.

Mr Read repeated some of the submissions that he made earlier in the week. He pointed out that general deterrence is the most important sentencing principle in cases such as this.

He acknowledged that whilst these offenders are at the lower end of the chain, nonetheless without them doing their job, the illegal immigrants would not be able to enter Australia. So it is a critical role, nonetheless.

He made submissions, as did the Crown, about the general prevalence of this type of offending and the significant cost to the Australian public caused by this offending both in dealing with it and in its detection. He pointed out that this type of offending is at the lower end of the scale, in the sense that it is an overt rather than a covert operation.

I take account of these things, as of the fact that the prisoners are people who in turn are being exploited. I take account of their pleas of guilty and the other matters I am required to take account of under the provisions of the Commonwealth Crimes Act.

I turn to actually sentence. The prisoner Karim, the master of the vessel, I sentence to be imprisoned for four years. I direct that after he has served two years, upon entering a recognizance to be of good behaviour for two years in the sum of $500, he be released.

The prisoner Akbar, I sentence to two years and six months imprisonment. I direct that he be released after serving one year and three months imprisonment upon entering a recognizance in the sum of $500 to be of good behaviour for a period of two years.

The prisoner Putra, I sentence to two years imprisonment, to be released after serving one year upon entering a recognizance to be of good behaviour for a period of 18 months in the sum of $500.

Each of those sentences is backdated to 5 May this year to take account of time spent in custody.

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