SCC 20302840 and 20302843

THE QUEEN

and

AL HASSAN ABDOLAMIR AL JENABI

(Sentence)

MILDREN J

TRANSCRIPT OF PROCEEDINGS

AT DARWIN ON TUESDAY 21 SEPTEMBER 2004

Transcribed by:
Court Recording Services (NT) Pty Ltd

HIS HONOUR: Yes, I have prepared some sentencing remarks in writing so that they can be interpreted to the accused as I read them out. So, will you give a copy of those remarks, please, to the interpreter.

The accused has pleaded guilty to two counts of offences under s 232A of the Migration Act of 1958 of the Commonwealth.

Madam interpreter, do you want to interpret as we go? I will read it sentence by sentence.

In addition, he has asked me to take into account a third count.

The maximum penalty provided is imprisonment for 20 years or a fine of $220,000, or both. There is no mandatory minimum applicable to this case.

Section 232A of the Migration Act makes it an offence to organise the bringing to Australia of a group of five or more people, reckless as to whether the people have a lawful right to come to Australia.

The accused was originally charged with four counts against s 232A and with a number of alternative counts against s 233(1)(a) of the Migration Act of 1958. The hearing commenced with a voir dire hearing which started on 7 June 2004 and ended on 27 July 2004. The purpose of that hearing was principally to test the admissibility of certain photoboard evidence which the Crown intended to rely upon at trial. At that stage, the accused denied that he was Ali Al Jenabi and denied that he was guilty of any of the offences charged in the indictment. In the result, I excluded the evidence of identification of eight witnesses and admitted the rest.

The trial before the jury commenced on Tuesday 3 August 2004. The Crown alleged that the accused had organised the bringing into Australia of four boat loads of illegal immigrants, the first being a vessel named by Immigration (DIMIA) officials as the Stonyville, which arrived in Australia with 36 passengers and two crew from Indonesia in about June 2000. The second boat was called the Fruitgrove which arrived in Australia with 33 passengers and three crew on 15 October 2000. The third boat was named the Outtrim, which arrived on 5 May 2001 with 65 passengers and three crew. The last boat was the Bacala which arrived on 20 August 2001 with 225 passengers and four crew.

The trial proceeded until 9 September 2004 when the accused changed his plea to one of guilty before the jury in relation to counts 7 and 14, that is to say, the counts relating to the Fruitgrove and the Bacala. He indicated also that he wished that count 10 relating to the Outtrim be taken into account. The Crown accepted this and a nolle prosequi was filed in relation to all counts on the indictment except counts 7 and 14.

The jury having heard the change in plea to counts 7 and 14 returned verdicts of guilty in relation to those counts. The accused is formally convicted on those two counts and I indicate that I have taken into account a count relating to the Outtrim as requested.

The facts relating to each count are broadly similar and may be briefly stated as follows.

The passengers were made up of Iraqis, Iranians and sometimes a few others. Some of these passengers had obtained the accused's name and contact details whilst in Jordan. In some cases passengers even obtained the accused's mobile phone number whilst still in the Middle East. Generally speaking the passengers flew into Kuala Lumpur on false passports obtained in the Middle East.

They were usually met on arrival by others involved in the people smuggling business and taken to a flat or an hotel where they stayed pending the obtaining of visas to enter Indonesia. After that usually they were flown into Jakarta where they were met by associates of the accused, namely Haida and Shahram although sometimes the accused was there as well or was waiting in a car outside the airport. From there they were taken to cheap hotels and some of them were taken to a villa in Bogor. The accused on occasions was directly involved in arranging their transport. After they had stayed in those places for a time, they were provided with train tickets to Surabaya, and put up in a cheap hotel or hotels there until the next stage of the journey which varied in each case.

In the case of the Fruitgrove, they were flown to Kupang, where they were met at the airport by the accused and taken to a villa. After staying there for a while they were taken to a beach and there loaded on to the vessel which took them to Ashmore Reef. In the case of the Outtrim, they were flown to Maumere on Flores Island and then to some huts near a beach before being taken in buses to another beach where they were loaded onto the vessel. In the case of the Bacala, the passengers were taken to a beach near Surabaya where they boarded the vessel.

The price for this ranged from $US1500 to $2000 per person for the Fruitgrove and the Outtrim and between $US1500 to $2500 for the Bacala, which included accommodation, some food, air tickets to Maumere or Kupang, train tickets to Surabaya, as well as free local transport in cars or buses.

In order to arrive in, stay in and leave the country, bribes were often paid to immigration officials, police and the Navy. Usually these bribes were paid out of the monies for the trip, although, in some cases, eg the bribes paid to immigration officials on arrival at Jakarta airport, the bribes were paid by the passengers personally.

The vessels which took them to Australia were wooden fishing boats of small value, obviously chosen for their cheapness and expendability. None were equipped with any safety equipment whatsoever.

The level of the accused's participation in each vessel may have differed somewhat. The accused claims that he was not the principal behind each operation but that he was working for one Abu Ayat. There is no doubt that Abu Ayat was involved in the people smuggling trade and was one of the principals, if not the main principal, involved in the Stonyville.

The accused claims to have been working for Abu Ayat in return for money for essentials, and living expenses, and an entitlement to send one member of his family free to Australia for each boat he helped organise. The details of the story are contained in exhibit D18. The story has a ring of truth to it because it provides a credible explanation based upon his own history as a refugee from Iraq and his wish to get his family out and safely to Australia, a wish he was eventually able to achieve.

I note also that there is no evidence that he lived opulently. On the other hand, he did not live in the poor end of town, he was well dressed and presented and had 4-wheel drive vehicles at his disposal. He had entered into a de facto marriage and has a young daughter. There was no evidence of bank accounts in his name with large sums of money in them or that he purchased the boat and financed the crew. It would be unusual in my experience for a principal offender to be at the crime scene getting his hands dirty.

There are some contrary indications; his claim that he made only $500 profit out of one vessel; he told some passengers to tell the Australian authorities that Ali Al Jenabi had sent them; he was well known in the Middle East and Malaysia; he told an informer, Sultani, that the Outtrim was his own private work with no partnership with anyone else, although he introduced the same informer to his boss 'Musba'. The accused claims that Musba and Abu Ayat are one and the same. I think it is probable that the accused was either working in partnership with Abu Ayat or working for him on at least some occasions.

Be that as it may I find that he was heavily involved in the offending. He was at the very least the officer in command in the field and he had the power to negotiate the price. He exercised a great deal of control over each operation.

The course of conduct in which he was involved was over a period of about 12 months and escalated from 33 to 65 to 225 passengers.

The profit to be made out of the Bacala must have been considerable. Assuming an average of $US2000 per person, that results in a total gross sum of $US450,000 or something like $A600,000. Even allowing for the higher costs involved with so many people, and accepting that bribes had to be paid, wages of those involved met, the boat purchased, the crew paid off, the travel expenses of so many refugees paid, it is hard to see how a reasonable profit would not have been made.

Yet he was not the only one involved in this business. There were a number of other well known smugglers in the people smuggling business who were plainly in it for money. One such person was Keis Asfoor and another was Majid. The reason for the prisoner's trip to Thailand was to contact Iraqi and Iranian refugees there so as to arrange for their transportation to Australia. This I note was after the last of his family members had arrived in Australia on the Bacala. Nevertheless I accept that in the prisoner's case his principal motivation was not money but to get his family to Australia, although he was clearly in need of money and whatever else may be said about his motives, this activity provided him with his means of living.

The offences he has committed are regarded by the Parliament as serious ones, as can be seen by the maximum penalties able to be imposed. The Parliament has the right to say which persons may and which may not enter Australia, and under what conditions. Even if refugees who come to Australia to seek asylum are not charged with any offence, the Parliament has said that those who organise their travel here not caring whether or not they have valid visa to enter the country, are committing an offence.

I have been referred to the decision of the WA Court of Criminal Appeal in the matter of Wira Cita v R [2001] WASCA 5, which deals with some of the considerations relevant to sentencing in a case such as this. Some of the matters referred to by their Honours appear to me to be matters of administrative policy rather than legal principle or what can be distilled from the purpose and object of the legislation. In one passage of the judgment, their Honours said this:

Section 232A operates against the background of a legislative and administrative system by which Australia seeks to deal in a fair and orderly way with non-citizens who wish to enter, and usually, to remain in Australia, including and especially refugees. The reality is that there are very many more persons who are, or who claim to be, refugees, as well as other non-citizens, who seek to enter and remain in Australia, than the government considers can be accommodated and assimilated.

An effort is necessary, therefore, to establish priorities as between refugees - after the genuineness of that status has been established - and as between refugees and the many others who for a variety of reasons seek to enter and to remain in Australia…..The effort and resources committed to these functions must be diverted from dealing with the needs of the many others who have not found the opportunity or the money to effect a clandestine entry into Australia. To the extent that such entrants are allowed to remain, inevitably, they displace others whose claim to favourable consideration may have been far greater.

Mr Tippett criticised this as government propaganda not supported by any facts. I gave counsel for the Crown an opportunity to put before this court facts to support these allegations. The Crown is unable to present any such material. I therefore do not find that the prisoner's activities displaced others by jumping the so-called queue.

Nevertheless I accept much of what else was said in that case. Clearly there is considerable cost involved in protecting Australia's borders from vessels of this kind. Considerable cost is also involved in establishing detention centres and maintaining the detainees sometimes for very long periods of time. For those who ultimately fail to obtain release from detention, there are often very great difficulties involved in arranging deportation. A great deal of expense, time and effort is involved in investigating claims and in dealing with appeals from administrative decisions.

It is well established that offences of this kind must result in an immediate sentence of imprisonment and that no other sentence is appropriate. It is also well established that in considering the punishment required, the court must give considerable weight to general deterrence: see also the observations of Bailey J in the R v Usin Nurdia & Ors (Supreme Court of the NT 12 January 2000) at pages 46 and 47.

On the other hand, in each case the vessels arrived at Ashmore Reef where they were expected to be promptly arrested, as indeed they were. There was no attempt to arrive clandestinely on the mainland, with all of the attendant risks associated with breach of Quarantine and Health Regulations. And although none of the vessels were fitted with safety equipment, it is not suggested that they were otherwise unseaworthy. All of the passengers arrived safely although some of them found their voyage to Ashmore Reef less than pleasant, if not frightening. I note in this regard also that the vessels were not always equipped with adequate food and water for their voyages which resulted in distress for some of the passengers.

Despite the very detailed information provided to me by the Crown I was unable to find any material which suggested the masters of any of the crews of any of the vessels had been prosecuted for offences against the Act.

One matter which has been commented upon many times by the courts in the past is that this is a prevalent offence. It is clear that this offence is not now prevalent. According to the fact sheet attachment C of the Crown's submissions, there have been only two vessels to arrive in Australian waters since August 2001. However, this does not mention, so far as I can tell, passengers taken to Papua or Nauru, and nor does it mention the vessel which was turned back from Bathurst/Melville Island last year. Nevertheless I think I can conclude that this offence is no longer prevalent. I accept Mr Tippett's submission that a range of measures taken by the Commonwealth Government has brought this about and that it is not solely due to the increased penalties and mandatory minimum penalty regime introduced by the legislature subsequent to the date of these offences.

The accused has no prior convictions.

I have already noted the circumstances under which he has altered his plea. Notwithstanding that it was a very late plea, I consider that the accused is entitled to a discount for his co-operation with the authorities. I note that the plea he negotiated resulted in the charge involving the Stonyville being completely withdrawn.

At the time he entered his plea the case had reached the stage where the passenger witnesses from the Stonyville and the Fruitgrove had been completed and the passenger witnesses from the Outtrim had just commenced. It is likely that the trial would have run for another two months at that stage, based on the rate of progress so far. This saved a considerable amount of money in bringing the witnesses from all over Australia to Darwin for the trial. Nearly all of the passenger witnesses needed an interpreter in either Arabic, Kurdish or Farsi. These interpreters were not available locally and had to be brought here from interstate. The savings in costs in this case are very, very considerable.

Sometimes it is overlooked that a plea of guilty has the potential to save costs in other ways. If the trial had proceeded and a guilty verdict or verdicts reached, there is the potential for an appeal which in this case was very real, particularly as I had refused an application by the accused to discharge the jury only shortly before his change of plea. If an appeal had succeeded there could have been a retrial. Whilst of course, I do not think that any appeal would have succeeded, the accused gave up his chance for an acquittal as well as for a retrial.

Whilst I think this decision was taken largely due to the fact that the Crown case was overwhelming, some recognition of the accused's recipiscence is warranted. I will reduce the head sentence that I would otherwise have imposed by about 10% and this will have a proportional effect on the non-parole period.

Before turning to the circumstances of the offender, I should deal with submissions made by both the Crown and the prisoner in relation to the sentence imposed by Deane DCJ in the matter of Asfoor. That case is very different from the present in many respects because it involved a much larger number of vessels (12) including many more passengers, over a period of two years, rather than one as is the case here. Asfoor did not plead guilty and he was motivated solely by money. In the end he received 12 concurrent sentences of ten years.

I consider that the offender in the offending in that case was more blameworthy than the present. However, sentences are not arrived at by this kind of comparison. Previous sentences are of value if there are enough of them to form a tariff, or if they illustrate matters of sentencing principle.

The sentencing material supplied to the court indicates that there is a tariff of between three years to eight years for the crew and masters of vessels involved in people trafficking, assuming a plea of guilty, and depending upon whether or not they are first offenders and the circumstances of the case. There is not yet an established tariff for persons such as the prisoner who are involved at a higher level than that of masters or crew, but it needs to be said that there is no reason to suppose that the upper level of eight years for masters is the bottom of the range.

I turn now to consider matters personal to the prisoner. He is now 33 years old, having been born in Diwanhia, Iraq on 22 December 1970, the son of an Army officer. He attended school to age 17. At that time he was required to join a government organisation. He refused to do so for political reasons and was refused access to further education.

His father was a dissident member of the Ba'athist Party and was imprisoned for two years because of this. During his imprisonment he suffered extensive mistreatment resulting in head injuries and possible brain damage. The prisoner suffered social isolation as a result. Eventually his father was released, but by then his condition had deteriorated and he was sent to a mental hospital for three years. In 1989 his father, after having recovered and returned to the Army, was court martialled and cashiered for dissidence over government policy.

The prisoner, at the time of the war with Iraq, was required to enlist. He refused to do so and he and his father and his brother Basim were interned in a political camp known as 'Morluck Camp', so named because inmates were locked up for 24 hours a day. The prisoner was shortly thereafter transferred to a complex for political prisoners at Abu Graib where he remained a prisoner for seven years until 1998 when he was released. He left then immediately for the north of the country then under United Nations Control. After 12 months working as a kebab seller he was able to get smuggled into Iran where he was able to join family members who were already in Iran living in a cellar.

Whilst in Abu Graib, the prisoner had learned the trade of a tailor and was able to find work in Iran and support the rest of the family. In 1999 demonstrations took place in Iran involving disaffected Iraqis in support of a political leader who voiced opposition to Saddam Hussain. This resulted in a crackdown on Iraqis living in Iran, and most Iraqis living in Iran illegally were forced to leave.

The Jenabi family, except for the father who remained in Iraq, (but who was said to be deceased in the application form) applied to be accepted as refugees into Australia. Their application was received by the Australian High Commission in Islamabad on 14 July 1999. According to the application form a daughter, Afrah Al-Janabi was already living in Sydney. The application covered the prisoner as well as his mother and other siblings. The application form is written in very poor English and obviously was prepared without the assistance of a competent interpreter. The applications were refused.

The prisoner decided to get his family into Australia come what may. He borrowed $2000 and travelled to Malaysia where he met Abu Ayat whom he knew during his time in Abu Graib Prison. By this time Abu Ayat was in the people smuggling business and it was through him that he learnt how to get to Australia. He began by trying to get to Australia through Indonesia in the same manner as he was later to assist others, arriving in Jakarta just before Christmas 1999.

In Jakarta he contacted a man called Majid who worked for Asfoor. He was told to travel to Surabaya and there await further contact but he was running out of money so he returned to Jakarta. There he met another smuggler called Saaed Omeid who offered to take he and his family to Australia if he worked for him and also paid him some money.

After paying him virtually everything he had, he discovered that it was too late in the season and no vessel would be leaving until March. This resulted in an altercation which landed him in prison. He was left with a choice between prison and working for Omeid. For a period of time he worked for Omeid, but later he met up with Abu Ayat, and so it was put, began working for him.

I accept that the prisoner managed to get his family out of Iran and into Australia. A brother Khalib travelled on the Stonyville; his mother and two sisters and a younger brother were on the Outtrim and his other brother Basim was on the Bacala.

As mentioned previously he has a wife and daughter in Indonesia. He has not been in contact with them since he left Indonesia to travel to Thailand in February 2002.

The prisoner has had health difficulties. Whilst in Abu Graib Prison he developed a kidney problem which has still not been treated. In Thailand he contracted TB. He was not treated for that condition until he was extradited to Australia.

He has been in custody in respect of these offences since his arrest in Thailand pending extradition to Australia on 17 June 2002. A question was raised during the proceedings as to whether I could backdate any sentence until then. I was referred to s 16E of the Crimes Act and to s 63(6) of the Sentencing Act. I consider that s 63(6) plainly falls within s 16E(1) and (2)(b), and that I may therefore backdate the sentence to the date he was arrested in respect of these offences.

On the facts he was arrested pending extradition in respect to these offences on 17 June 2002. I do not consider that I should give the word 'offence' a narrow meaning so as to preclude the court from taking into account a period of imprisonment pending a decision being made to extradite. The purpose of s 63(6) is to ensure that the record shows the real sentence imposed by the court, as otherwise, the courts would have to reduce the sentence by the time actually served pending trial and conviction, and this would give a distorted impression of the true sentence imposed.

Counsel for the prisoner Mr Tippett made a number of other submissions which I will briefly mention. Firstly he submitted that the only victim in this case was the prisoner. I do not accept that submission. The prisoner is not a victim of his own crimes. No matter how laudable it may have been to expend so much energy and take such risks in order to assist his family, he was not forced to commit these crimes. He might, for instance, have obtained other employment and saved enough money to pay for his family to come to Australia.

In the case of Wira Cita, the WA Court of Criminal Appeal apparently rejected a submission that these crimes are victimless. Be that as it may, the submission in my opinion misses the point that the provisions of the Act making this activity an offence are there for the protection of Australian citizens. It was also submitted that the prisoner's activities were largely based on humanitarian considerations. Of course the prisoner did nothing to inquire to the bona fides of those making claims for refugee status and if he were acting truly as a humanitarian one would expect him to have shown consideration for those who deserve it, not for those who ask for it.

I accept that the prisoner was concerned to assist his family and that he did what he could on occasions to assist others who were unable to pay fully, such as Mrs Al Safi, who the prisoner arranged to live with his own family. I accept also that he did show special consideration for families with children. I also accept that humanitarian acts are not necessarily inconsistent with some financial award. As Mr Tippett QC submitted, Oscar Schindler saved many lives by employing Jews as slave labourers and he made a great deal of money out of their labour, although of course he did later repay many of those that he was able to save. But the point is a valid one; there can be mixed motives and I accept that the prisoner was not solely motivated by money, but was largely motivated by the need to get his family to Australia come what may. Nevertheless there was a money motive; that activity was how he lived and supported his own family.

I accept also that he will find imprisonment here more difficult than some others due to food, language and cultural differences. The argument that those who commit offences in Australia cannot complain about Australian prison conditions may not apply to him, but a similar argument does, namely those who commit offences against Australian laws cannot complain about Australian prisons.

On the other hand I think I can take into account that the prisoner has spent some seven or eight months in a Thai prison where he contracted TB which was not treated.

As to the prisoner's prospects of rehabilitation, I doubt if he will offend again when he is released. I accept that he has a remarkably stoic and positive outlook on life and will probably return to Iraq if he can and pursue his trade as a tailor.

I record that I have taken into account each of the matters which I am required to take into account pursuant to s 16A of the Crimes Act even though I may not have mentioned some of those matters.

In conclusion I consider that, taking into account the matter which was formerly count 10 which I have been asked to take into account in sentencing this prisoner, there will be a sentence of imprisonment for six years three months in relation to count 7 and eight years in relation to count 14, both sentences to be served concurrently.

I fix a non-parole period of four years. The head sentence and non-parole period are backdated to commence from 17 June 2002. I am required by s 16F of the Crimes Act 1914 (Commonwealth) to cause to be explained to the prisoner the purpose and consequences of fixing a non-parole period.