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

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

Riley, J

File Nos. SCC 20105677, 20105678, 20106579

CATCHWORDS:

Sentence - Migration Act s232A

Darwin, 18 October 2001 (sentence)

#DATE 18:10:2001

HIS HONOUR: Well, then, Mr Fisher, are you content for me to sentence the people with whom we have been dealing this afternoon and then commence the matter of Mr Kasman in the manner suggested by Mr Read and finish it off tomorrow?

MR FISHER: Yes, Your Honour.

HIS HONOUR: All right. Well, then I propose to proceed to sentence Usman Muhtah, Idham, and Idris Ismail now.

Mr Interpreter, I am proceeding from rough notes and will proceed slowly. If I get ahead of you or you have difficulty at any time, please let me know.

I have before me three prisoners for sentence for offences against section 232A of the Migration Act. The offences relate to a journey involving a vessel that brought 43 people to Australia in April 2001.

The relevant facts have been agreed and are as follows: on 12 April 2001, the Rahowah, a vessel of about 18 metres in length, was detected in Australian waters south of Ashmore Island. Crew from an Australian Customs vessel intercepted that vessel. The officers of the Australian Customs Service spoke to the master of the vessel, Idris Ismail, and he was directed to follow the Customs vessel to Ashmore Island. Part-way to Ashmore Island the Rahowah ran out of fuel and was taken under tow.

On 13 April 2001 the Rahowah arrived at the outer lagoon at Ashmore Island. At that time, officers boarded the vessel and spoke to master and crew. The captain was advised that the Customs Service would provide fuel and the notice to master and crew, in the Indonesian language, was handed to the captain. He and the crew read the notice. The captain signed the notice.

The notice is prepared by the Department of Immigration. It made clear that there were new penalties for persons who brought people, who did not have permission to come to Australia, to this country. The notice set out the penalties that applied and advised that, if a person smuggled people into Australian territory, they could be charged and imprisoned for a maximum of 20 years. The notice asked the crew to consider this and suggested they return to Indonesia with passengers.

The Rahowah did not leave with its passengers. Thereafter the passengers were asked for travel documents and the officers were told that there were none. At 1700 hours on 13 April 2001 the passengers and crew were taken into migration detention. The prisoners before me have been in custody since that time.

The passengers and crew were transferred to Darwin. It was confirmed that the 43 passengers were not Australian citizens, nor did they have in their possession passports or valid visas. The passengers were retained in migration detention as unlawful non-citizens. 25 were from Afghanistan, 17 from Iran and one from Sri Lanka.

Idris Ismail told officers that he boarded the Rahowah in Dumpo, Sumbawa. The vessel departed Sumbawa with the passengers on 7 April 2001, heading for Ashmore Island. They became lost and, after four days at sea, were rescued by the Customs vessel. Mr Ismail was offered one million Indonesian rupiah and each of the crew 500,000 Indonesian rupiah for the journey.

The four crew members were arrested. They did not take part in any record of interview. One crew member, a juvenile, was convicted in the Juvenile Court on 1 May 2001 and sentenced to eight months' detention, to be released after serving two months upon entering into a recognizance in the sum of $500 to be of good behaviour for five years.

I am told, and I accept, that the prisoners have no previous convictions.

Although the crew was warned of the consequences of proceeding, they did so. The practise 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, of which the present case is an example, it will not provide the crew with a realistic opportunity to desist from the conduct that finalises the offence which has already been committed.

In cases such as those presently before me, the attitude of the passengers effectively precludes any attempt to return to Indonesia. The passengers are people who have endured much to get to Australia, and they are unlikely to agree to return to Indonesia in the face of a warning directed to the crew. The crew is usually outnumbered by the passengers, and that was so on this occasion.

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 must have been to them a substantial amount of money. It would seem they were unable to resist because of their impecunious circumstances. It is clear that they were not motivated by humanitarian instincts in carrying out this journey. I infer from the circumstances that they were each motivated by the money involved.

They have all pleaded guilty and are entitled to credit for so doing. As is to be expected there are differences between them: Idris Ismail assumed the role of master; the three crew members were of different ages and have different family circumstances. However, they are uniformly poor.

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 the operation. They were transporting the non-citizens to Australia for presentation to Australian authorities. There was no attempt to hide from the authorities or to disguise what had occurred.

There can be little doubt that the offences to which they have pleaded guilty are both serious and prevalent. In 1999, legislature amended the Migration Act to create the new offence under section 232A, to which these prisoners have pleaded guilty. Substantially increased penalties apply to that offence. The increase is reflected in penalties now being imposed by the courts. In recent times there have been further amendments to the penalty provisions, but those amendments do not apply to these particular matters.

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. While 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 non-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 that 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.

By virtue of section 16G of the Crimes Act, I must take into account the fact that the previously existing system of remissions operative in the Northern Territory has been legislatively removed. Those remissions amounted to approximately one-third of the sentence.

I look now at the personal circumstances of each of the prisoners. Idris Ismail was the master of the vessel. He is aged 33 years and is married with four children under the age of 10 years. He cannot afford to send his children to school. He is a subsistence fisherman and has been a fisherman for about 15 years. He lives with his wife and children. He was to be paid 1 million rupiah.

He became captain by default. No other suitable candidate was able to be found. Although he must be treated differently from the others, by virtue of the responsibility he undertook as captain, the distinction in this case is not so great as in some other cases.

Idham is a young man of unknown age. He lives with his father and younger brother. His mother died when he was a child. His younger brother attends primary school. He works with his father as a woodcutter. He was to be paid 500,000 rupiah. Although he is not to be treated as a juvenile, he is entitled to leniency because of his youth.

Usman Muhtah is a juvenile. His precise age is not known but it is accepted by the Crown that he qualifies as a juvenile. He is entitled to special leniency by virtue of that fact. He was the cook on the voyage. He usually lives in a village with his mother, father and younger brother.

It is not suggested that any of the prisoners was an organiser of the journey. They were each recruited by a third party. They were recruited shortly before the journey took place.

I turn to sentence each of the prisoners. They are each convicted Idris Ismail is sentenced to imprisonment for a period of 3 years and 4 months. I direct that he be released after serving a period of 20 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 20 months. The period of imprisonment and the pre-release period will date from 13 April 2001.

Idham is sentenced to imprisonment for a period of two years. I direct that he be released after serving a period of twelve months' imprisonment. That release will be conditional upon him giving security by personal recognizance in the sum of $500 that he will be of good behaviour for a period of twelve months. The period of imprisonment and the pre-release period will date from 13 April 2001.

Usman Muhtah will be sentenced to imprisonment for a period of twelve months. In view of the time he has now served in an adult prison, I direct that he be released forthwith. 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 six months. The period of imprisonment and the pre-release period will date from 13 April 2001.

What I have had to say has been interpreted to the prisoners, I ask Mr Read and the interpreter to take the time to further explain the sentences that have been imposed and the release orders that I have made, including the conditions which attach to the release orders.

If there is any breach of the release order by a prisoner, that prisoner may be brought back to court to be dealt with and the unserved balance of his sentence may be reimposed. In addition, it would seem that a substantial further period of imprisonment is likely to be imposed by operation of the amendments to the Migration Act.

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