THE SUPREME COURT OF THE NORTHERN TERRITORY

SCC 20113886, 20113884, 20113885,
20113880, 20113882, 20114689, 20114686,
20114690, 20114687 and 20114685

THE QUEEN

and

ABDULLAH ISHAKA, LUKMAN MUHAMAD
TAMRIN MUHAMAT, HAMDIN NUR,
HERMAN SAFRUDIN, ALI BIN NUH,
UNGAR DAENI, RANDI LAAMBO,

HARIBU LAHIMU, and AMIR SADHIL

(Sentence)

RILEY J

TRANSCRIPT OF PROCEEDINGS

AT DARWIN ON FRIDAY 1 MARCH 2002

Transcribed by:

Court Recording Services (NT) Pty Ltd

HIS HONOUR: I have before me 10 prisoners for sentence in relation to offences against section 232A of the Migration Act. Five of the prisoners were involved in an offence committed on 10 September 2001 involving the vessel Ratna Mujia. The remaining five prisoners were involved in an offence which occurred on 12 September 2001 involving the vessel Sumber Bahagia.

There is no suggestion that the offences relating to the separate vessels are in any way linked. The matters have been dealt with together at the request of counsel for the prisoners and as a matter of convenience.

For the purposes of sentencing, the circumstances of each individual must be considered and a penalty appropriate to the circumstances of that individual and the offence he committed imposed. The circumstances of the offending in each case are agreed.

In relation to the vessel Ratna Mujia, the prisoners Tamrin Muhamat, Lukman Muhamad, Herman Safrudin, Hamdin Nur and Abdullah Ishaka travelled on that vessel to Ashmore Reef along with 135 passengers.

On 10 September 2001 the vessel was observed by Coastwatch aircraft at the northern edge of the Ashmore Reef. At about 6.59 am on that day officers of the Customs vessel Arnhem Bay observed the Ratna Mujia entering the outer lagoon of Ashmore Reef.

The vessel was observed to run aground on the reef on the southern side of the outer lagoon. Several of the passengers from the vessel were seen to be in the water. The vessel was hard aground on the reef and was rolling violently in the surf.

A boarding party was dispatched to assist. The persons overboard were brought back onto the Ratna Mujia. An inspection of the vessel revealed it had been holed and was taking water.

The passengers were taken aboard a holding vessel and the prisoners were transferred to the Arnhem Bay. The prisoners were then transferred to HMAS Gawler and transported to Darwin.

The prisoners were interviewed. Muhamad stated that the captain and the person in charge of the engine left the vessel near Roti.

A search of the prisoners luggage revealed 1,258,000 rupiah in the luggage of Lukman Muhamad. An application is made for forfeiture of that sum on behalf of the Crown. The application is not opposed and I make the order pursuant to the provisions of section 19 of the Proceeds of Crime Act.

The passengers from the Ratna Mujia were transferred to the HMAS Tobruk. There were 135 non-citizens of whom 131 were from Afghanistan and four from Iran. The passengers were taken to Nauru.

Interviews with the passengers revealed that they left Bali and were told they were being taken to Australia. When the vessel reached Ashmore Reef, the Indonesian crew said to the passengers, 'Australia, Australia, get off' and indicated that they wished to return to Indonesia.

None of the prisoners has a prior conviction.

Tamrin Muhamat is aged 32 years. When the engineer left the vessel at Roti, he assumed responsibility for the vessel. He was surprised when the other men got off the vessel. It seems he assumed some responsibility by virtue of his age.

He was to be paid 500,000 rupiah. He, like his fellow crewmen, initially thought that they were travelling to Kupang taking Coca-Cola as a cargo. However, it became clear they were to take people to Australia.

He normally works as a farmer and farms rice on other people's land. He is married with five children, two of whom are at primary school and one in high school. He provides for the family.

Abdullah Ishaka agrees that he is aged 21 years. He finished high school in 1999 and since then has been unemployed although he helps his parents on a farm. He lives with his parents, his sister and two brothers. The other children are not at school. He was offered the job of cook on the vessel and was to be paid 500,000 rupiah.

Hamdin Nur is married with one child. He is aged 41 years. He worked in the kitchen of the person who recruited him, Mr Abdullah. He lives with his mother. He was to be paid 500,000 rupiah.

Lukman Muhamad is a young man. There is a dispute as to his age which must be resolved. He lives with his mother and collects firewood for a living. He sells that at the market. He was to be paid 500,000 rupiah. I will not sentence him today.

Herman Safrudin says he is aged 17 years. There is also some dispute about that which will need to be resolved. He was uncertain as to whether he would be involved in the events but was swayed to undertake them because both his parents are ill and need to enter hospital.

He had been to school until grade 9 but had to leave due to the illness of his parents. He had to obtain money to pay medical bills. He worked at sea catching crabs in what seems to have been a reasonably well paid job in all the circumstances. He lives with his parents and two younger brothers and one younger sister. He is responsible for them all.

Mr Read submits that his is a different situation from others in that his family circumstances identify a need for some leniency. He became involved because of the illness suffered by his parents and the need to look after his younger siblings. I will not sentence him today.

The prisoners Amir Sadhil, Ungar Daeni, Haribu Lahimu, Randi Laambo and Ali Bin Nuh were on the Sumber Bahagia when it brought 129 people to Australia.

On 11 September 2001 the vessel was detected in Indonesian territorial sea. A tender from HMAS Waramanga made contact with the vessel and a notice to master and crew was handed to the master, Amir Sadhil. The notice warned of penalties for people trafficking and advised the prisoners to consider returning to Indonesia with their passengers. Mr Sadhil agreed that he understood the notice. The tender then left the vessel and followed behind.

The vessel continued on its southerly course and the tender again came alongside and issued a second notice to master and crew. The vessel at this time was still outside Australian waters.

A third notice to master and crew was issued and a little later, the vessel entered Australian waters. HMAS Waramanga and HMAS Newcastle then launched boarding parties.

It was established that the master was from Roti and the last port of call was from Lombok some five days previous. The crew was paid 12m rupiah collectively for the voyage and they were travelling to Ashmore Reef.

The boarding party turned the vessel around in order for it to leave Australian waters. They subsequently disembarked and the vessel was observed to change course to again head south. Another notice to master and crew was issued and the master was instructed to turn north-west.

The passengers were shouting that the vessel was broken. The tender was sent to the vessel with instructions for it to depart the area and the master was given a chart with the position of the vessel clearly marked.

The vessel continued to head for Ashmore Reef and the warnings were ignored. Two boarding parties then went to the vessel but were met with hostility from the passengers and withdrew.

The vessel was dangerously close to the reef and due to the dangerous situation and to avoid loss of life, the passengers were embarked on the Waramanga. The prisoners remained on board the vessel.

There were 129 passengers on board the vessel and they were from Iraq. They were taken to Nauru. Those passengers indicated that there were eight crew on board the vessel when it left Lombok and three of the crew, including the captain, left the vessel at Roti.

Amir Sadhil, who became the captain of the vessel, is a man with a previous conviction in Australia. The remaining prisoners have no previous convictions in Australia.

Mr Sadhil was convicted of an offence contrary to section 232A of the Migration Act on 12 May 2000. On that occasion he was sentenced by myself to imprisonment for three years to be released after serving 18 months upon entering into a bond to be of good behaviour for a period of 15 months. The sentence was backdated to commence on 29 July 1999 and he was released from custody on 11 February 2001.

The offence which occurred in September 2001 was in breach of the bond into which he had entered.

Mr Read, who appeared on behalf of all prisoners, referred to a statement provided by an officer on one of the Australian vessels. That statement made it clear that when Mr Sadhil, as captain of the vessel, disobeyed the directions to return to Indonesia and continued onto Ashmore Reef, he was doing so with some misgivings.

The statement referred to the passengers becoming more and more agitated and the master of the vessel, Mr Sadhil, appearing nervous at their disposition. He was not defiant of the requests and directions of the Australian authorities, but rather bowing to the wishes of his passengers.

The fact that Mr Sadhil is a repeat offender does not mean that I should increase the sentence which is to be imposed upon him, but it does mean that he is not entitled to receive the leniency first offenders receive in these courts. He must be dealt with for this offence and also for the admitted breach of a condition of his earlier bond.

Further, he is acknowledged to have been the master of the vessel and can expect a heavier sentence than the crew members of the vessel to reflect the position of responsibility that he has assumed in relation to the vessel.

Mr Sadhil is a 49-year old man who is married with five children, three of whom are at school. The oldest of the children is aged 13 years.

Mr Sadhil usually works as a fisherman engaged in local fishing. He fishes for himself and his family and if there is any excess, he will sell that at the markets. He was educated to grade 6. He has been a fisherman all his working life.

Prior to committing this offence, he had spent some 18 months in gaol and had been released on condition that he not re-offend. He is unable to provide any satisfactory explanation for re-offending. He referred to being in a desperate financial need with debts that required payment. However the reward he received for this offence; namely 2m rupiah, is likely to be less than he would have earned had he continued working over the period he is now to spend in custody.

Ali Bin Nuh is 38 years old and he is married with one child. He usually works as a fisherman and has worked ever since he left school at primary level. His parents are deceased. He became involved because of the need for money. He was paid 2m rupiah and that has been provided to his wife. He was the mechanic on the vessel.

Randi Laambo is aged 20 years. He lives with his parents and an older brother. He reached grade 5 at primary school. He is a fisherman and has always worked as a fisherman. His father is a farmer, his mother is deceased.

He was in Kupang looking for work and staying with friends when he was approached to be part of this crew. He was paid 2m rupiah. That money has been sent to his father. He is entitled to some leniency because of his relative youth.

Haribu Lahimu is aged 70 years. He has never been in trouble with the law. He undertook this journey because he wanted money for his grandchild to attend school.

He went to Kupang looking for work and was offered work on the vessel. He was paid 2m rupiah which I am informed has been sent to enable the child to go to school. He has a wife and five children and he worked as a farmer in his local village. He is entitled to some leniency because of his age.

Ungar Daeni is aged 43 years. He lives with his wife and five children, three of whom are at school. He is a farmer by occupation and works on other people's land. He works with his wife. He travelled to Kupang with a friend. The friend paid for the trip. He was approached on a beach there and offered 2m rupiah to undertake the journey. That money has been sent to his family.

There can be no doubt that these matters are serious and prevalent offences. Although the individuals involved are at the end of the chain of people who are involved in bringing the unlawful non-citizens to Australia, they are a vital part of that process. They and others like them 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 crew of the Sumber Bahagia were warned of the consequences of proceeding to Australia and the desirability of turning back, they did not do so. The practice of providing such warnings is one that has been in operation for some time and in my view is a sensible and fair procedure.

In this case the warning was given and repeated on a number of occasions. However, in the circumstances as described to me by Mr Read, the giving of the warnings did not provide the crew with a realistic opportunity to desist in the conduct that finalises the offence.

The passengers were people who were desperate to arrive in Australia. They had endured much to get to Australia and were unlikely to agree to return to Indonesia in the face of a warning of this kind. In this case the passengers numbered in excess of 100 and the crew numbered five.

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 the non-citizens to Australia for presentation to Australian authorities. There was no attempts to hide from the authorities or disguise what they had done.

As I have observed, the offences are both serious and prevalent. Increased penalties were introduced in 1999 and are applicable to this matter. The amendments to the Act effected later in September 2001 do not have application.

The offences amount to a serious violation of Australian sovereignty. They also create quarantine risks, although those risks are less than if the vessels were to land on the mainland.

Offences of this kind 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 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 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 that 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 has been about one-third of the sentence and I take that into account. I take into account the pleas of guilty.

I turn to sentence the prisoners. They are each convicted. I deal first with the prisoners who were on the vessel Ratna Mujia.

Tamrin Muhamat will be sentenced to imprisonment for four years. I direct that he be released after serving a period of two years' imprisonment. That release will be upon giving security by personal recognizance in the sum of $500 that he will be of good behaviour for two years. The period of imprisonment and the pre-release period will date from 10 September 2001.

Abdullah Ishaka and Hamdin Nur will each be sentenced to imprisonment for three years and six months. I direct that they each be released after serving a period of one year and nine months' imprisonment. That release will be upon the prisoner giving security by personal recognizance in the sum of $500 that he will be of good behaviour for a period of two years.

The period of imprisonment and the pre-release period will date from 10 September 2001.

The remaining two prisoners from that vessel will be sentenced when the issue of their respective ages has been resolved.

As to the prisoners from the vessel Sumber Bahagia, Amir Sadhil will be sentenced to imprisonment for a period of six years. In addition, as to his failure to comply with a condition of his bond imposed on 12 May 2000, I restore the balance of the sentence then suspended.

I direct that sentence be served cumulatively with the sentence I now impose to the extent of nine months. The total period of imprisonment will therefore be a period of six years and nine months.

I direct that he be released after serving a period of imprisonment of three years and five months. 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 four years. The period of imprisonment and the pre-release period will date from12 September 2001.

Ali Bin Nuh and Ungar Daeni will each be sentenced to imprisonment for a period of three years and six months. I direct that they each be released after serving a period of one year and nine months. That release will be upon the prisoner giving security by personal recognizance in the sum of $500 that he will be of good behaviour for a period of two years. The period of imprisonment and the pre-release period will date from 12 September 2001.

Randi Laambo and Haribu Lahimu will each be sentenced to imprisonment for three years and two months. I direct that they be released after serving a period of one year and seven months. That release will be upon the prisoner giving security by personal recognizance in the sum of $500 that he will be of good behaviour for a period of two years. The period of imprisonment and the pre-release period will date from 12 September 2001.

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