Supreme Court of Western Australia - Court of Appeal

CITA -v- THE QUEEN [2001] WASCA 5 (24 January 2001)
Last Updated: 7 February 2001








FILE NO/S : CCA 129 of 2000




FILE NO/S : CCA 149 of 2000




Criminal Law - Sentence - Offences of facilitating the bringing to Australia of unauthorised persons - Skippers of Indonesian vessels carrying 282 and 180 unlawful non-citizens - Sentences of 7 years imprisonment and 5 years 6 months imprisonment upheld
Migration Act 1958 (Cth), s 232A
Leave to appeal refused


CCA 129 of 2000
Applicant : Mr A E Monisse
Respondent : Mr J McGrath
Applicant : Legal Aid Commission
Respondent : State Director of Public Prosecutions

CCA 149 of 2000
Applicant : Mr A E Monisse
Respondent : Mr J McGrath
Applicant : Legal Aid Commission
Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Case(s) also cited:

Abbott (1985) 17 A Crim R 355
Akimin & Ors v Cooper, unreported; SCt of WA; Library No 950071; 24 February 1995
Australian Coal and Shale Employees' Federation v The Commonwealth (1956) 94 CLR 621
De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996
Dinsdale v R [2000] HCA 54
Gavin v R (1992) 6 WAR 195
Ilam v Dando (1999) A Crim R 47
Knights (1993) 70 A Crim R 105
R v Downie & Dandy (1997) 95 A Crim R 299
R v Ferrer-Esis (1991) 55 A Crim R 231
R v Samsul Guruapin, unreported; SCt of NT; 22 November 1999
R v Sinclair (1990) 51 A Crim R 418
R v Tait (1979) 46 FLR 386
R v Udin Nursia & Ors, unreported; SCt of NT; 12 January 2000
Stretton v The Queen, unreported; CCA SCt of WA; Library No 950282; 1 June 1995
Winchester v R (1992) 58 A Crim R 345

1 JUDGMENT OF THE COURT: Both Wira Cita and Tarjuddin Lamaha sought leave to appeal against sentences imposed on them in the District Court.

2 Wira Cita was arraigned on indictment before Charters DCJ on 16 May 2000 and was convicted on his plea of guilty of an offence of facilitating, at Christmas Island on 17 February 2000, the bringing to Australia of a group of 282 people, recklessly as to whether the people had a lawful right to come to Australia, contrary to s 232A of the Migration Act 1958 (Cth). The maximum penalty for this offence, following the coming into force of the Migration Legislation Act (No 1) 1999 (Cth), is 20 years imprisonment or a fine of $220,000 or both. On 19 May 2000 the sentencing Judge imposed a sentence of 7 years imprisonment with a non-parole period of 31/2 years. The sentence was backdated to 1 February 2000 when the vessel skippered by Mr Cita and another person was boarded by a naval vessel and Mr Cita was taken into custody.

3 Tarjuddin Lamaha was arraigned on indictment before Muller DCJ on 11 April 2000, with others, and was convicted on his plea of guilty of an offence of facilitating, at Christmas Island between 24 and 28 November 1999, the bringing to Australia of a group of 180 people, knowing the people would become, upon entry into Australia, unlawful non-citizens, contrary to s 232A of the Migration Act 1958 (Cth). A further and alternative lesser charge in the indictment was not pursued further against Mr Lamaha. On 6 June 2000, after hearing submissions as to sentence, his Honour sentenced Mr Lamaha to a term of 5 years 6 months imprisonment with a non-parole period of 2 years 9 months. The sentence was ordered to commence on 27 November 1999 when the vessel skippered by the applicant was intercepted and he was taken into custody.

4 When the two applications for leave to appeal were argued together on 13 November 2000 the Court refused to grant leave to appeal to both applicants. The Court indicated its reasons would be published at a later date. These are the reasons of the Court.

Facts - Wira Cita
5 With respect to Mr Cita on 1 February 2000 he, with another younger person, both of whom are Indonesian nationals, were the crew of a wooden powered Indonesian vessel of some 12-15 metres length. The vessel travelled from Java to Christmas Island and was intercepted some 600 metres from the shore. On board were 282 unlawful non-citizens. Neither the accused, the other crew member, nor any of the 282 passengers had passports or a visa for entry into Australia. Within a few days the 282 passengers were transported to a detention facility at Woomera. Mr Cita and the other crew member were brought to Perth where Mr Cita was interviewed on 9 February 2000. He stated that in Indonesia he was approached by a man named Sugoni and he agreed to take people to Australia for money. Sugoni explained the people would be foreigners and that they might be caught and get a gaol sentence of about 6 months after which they would become Australian citizens. Mr Cita said he knew it was forbidden to bring the people to Australia but he needed the money offered by Sugoni because he was in debt. He decided to continue despite the possibility of being caught as he wanted to become an Australian citizen and get a job in Australia. Mr Cita told the police that Sugoni gave him 1,000,000 Indonesian Rupiah and promised an additional 8,000,000 Rupiah on his return from Australia. At the time this was the equivalent of approximately $1,000 Australian. Approximately a month after first speaking to Sugoni he went to a small coastal village where the vessel provided by Sugoni was ready. Sugoni stocked the boat with food and shortly afterwards the passengers arrived. In the middle of the night, they set sail for Australia. Mr Cita said that Sugoni disappeared and did not sail with them. Mr Cita and the other crew member shared the navigation of the vessel using maps and a compass. After approximately two days they reached Christmas Island. The vessel was destroyed by the Australian Federal Police.

6 Mr Cita was born on 2 December 1972 in Jakarta. He has a limited ability to read and write. In mitigation it was submitted to the sentencing Judge that he was married and had a child. He was supporting his wife and child and his parents. He was a seaman but he had been unemployed for three years and, accordingly, when this opportunity came up he seized it. He was having problems feeding his family and paying his rent. He did not know the owner of the boat or the other crew member.

7 The Crown's submissions to the sentencing Judge drew specific attention to the considerable prevalence of offences of this nature, 18 boats having been intercepted since July 1999 in Western Australian waters alone. These involved some 63 offenders and over 1,200 passengers, generally from the Middle East. The present case of 282 passengers was the largest single importation of unlawful non-citizens to come before the Western Australian Courts. It was stressed that general deterrence should be a significant factor in determining the sentence. The sentencing Judge was provided with quite detailed summaries of other similar cases which had been dealt with as part of extensive and detailed submissions as to penalty. These included references to appropriate authority.

8 In his sentencing remarks Charters DCJ carefully and accurately reviewed the facts and circumstances of Mr Cita. He noted that the statutory penalty for conduct of this nature had been increased in 1999. He recognised that the promoter of this offence was not before the Court but observed there were many considerations which compelled a serious line to be taken when sentencing any persons involved in this type of illegal behaviour. He noted in particular the difficulty and expense incurred by the government following detection and the very substantial resources required to deal with those entering the country unlawfully. He drew attention to the impact of offences of this nature on those who are seeking through legitimate means to enter Australia as those unlawfully entering the country effectively seek to jump the immigration queues and so delay the attempts of others to enter lawfully. He observed that the offence was committed in circumstances which preyed on the desires of refugees to seek out a better life but noted that, instead, they may face criminal charges, incarceration in relatively uncomfortable conditions, eventual repatriation and the loss of all they had spent trying illegally to enter this country. He noted the importance in these circumstances of deterrent sentences. In particular, he observed that Mr Cita did not involve himself in this unlawful trade to assist the passengers, but for his own financial gain. After reviewing the sentences imposed in other cases, and noting the relevance for this purpose of the number of passengers brought to Australia, his Honour noted that 282 persons was the highest number yet to be brought in and observed that the sentence needed to reflect the gravity of this.

9 In light of these various considerations his Honour considered that the starting point should be close to the middle of the range and he fixed on 9 years imprisonment, which he then discounted to 7 years especially having regard to the plea of guilty and the fairly poor background, circumstances and education of Mr Cita.

Facts - Tarjuddin Lamaha
10 Mr Lamaha was the captain of a wooden powered Indonesian vessel of some 25 metres in length which transported 180 persons, men women and children, from Iraq, Iran and Kuwait, from West Java to Christmas Island. He was assisted by two crew members. He was paid 10,000,00 Indonesian rupiah to transport these people which was said, at the time of the offence, to be worth some $2,000 Australian at the then exchange rate. The vessel left Indonesia under cover of darkness and the passengers did not clear customs and did not have passports or visas for entry to Australia. The vessel was intercepted by a police boat approximately one kilometre from a cove on Christmas Island. The passengers had each paid between US $2,000 and US $3,000 for the journey from West Java to Christmas Island, including a journey by road from Jakarta to the vessel. The vessel had been recently fitted out to carry a large number of people. It had a high quality marine radio, a compass and a global positioning system. The vessel was subsequently destroyed.

11 When interviewed by the police, Mr Lamaha said he was asked by a man named Brahm at a bus station in Jakarta on 24 November 1999, if he would take a vessel to Christmas Island for 10,000,000 rupiah. He agreed and the next day he was taken to West Java where the vessel lay offshore. At about midnight that night the passengers began to arrive. They were ferried out to the vessel in small boats. The vessel set sail at about 2 am. Brahm acted as pilot until the vessel cleared Indonesian waters. He was then taken off by another boat. It was only some seven hours sailing from there to Christmas Island. Mr Lamaha said he had not previously met the other two crew members. He followed Brahm's directions as to the course to steer for Christmas Island. Mr Lamaha told the police he was told by Brahm that the passengers had passports although by his subsequent plea of guilty he accepted he knew they would be unlawful non-citizens on entering Australia. He said he was to be paid cash upon his return to Indonesia.

12 The applicant Mr Lamaha was aged 28 at the time of the offence. He had been an employed fisherman. He was not married and had no children. He had moved to Jakarta with the help of a friend following riots in his parent's village in Ambon but for the 10 months before the offence he said he had been unemployed. His financial need was said to be the main reason for accepting Brahm's offer.

13 Muller DCJ in his sentencing remarks accurately canvassed the factual circumstances of the offence and the personal circumstances of Mr Lamaha. He observed that Mr Lamaha's role was secondary to Brahm and others. His Honour noted that Mr Lamaha always intended to plead guilty even though this did not occur until arraignment as his legal advisers were in discussions over the charge with the prosecuting authorities. His Honour accepted that Mr Lamaha had demonstrated remorse and had written to media outlets in Indonesia notifying them of his predicament and of the dangers of becoming involved in such a situation.

14 Having considered the statutory history and the provisions relevant to penalty his Honour then expressly accepted, from the authorities to which he had been referred, that there was a crucial need for general deterrence to be considered because of the prevalence of this type of conduct, the difficulty in detecting this type of offence, the economic burden non-citizens impose on the Commonwealth, the health risk and the adverse impact of their actions on legitimate migrants whose entry may be jeopardised or delayed by immigration queue-jumping.

15 While his Honour accepted Mr Lamaha captained and navigated the vessel for only a relatively short period, he considered that Mr Lamaha's role was vital in facilitating the bringing of these 180 non-citizens to this country. He did so, his Honour observed, not for any altruistic motive, his only objective was monetary gain. The money he was offered was greater than the known amounts offered to others who had come before the courts for similar offences. His Honour, after considering the detailed submissions he had received as to the circumstances of, and the penalties imposed in other similar cases, was persuaded that an appropriate starting point was 7 years 6 months imprisonment. Because of the plea of guilty and other mitigating matters this was discounted to the term of 5 years 6 months' imprisonment.

The appeal 16 As argued, the case for both applicants primarily stressed that the increased penalties provided in 1999 should be taken as primarily aimed at those who profit from people trafficking, ie those who, for a fee, organise individuals or groups to enter Australia illegally. This submission reflected the second reading speech when the 1999 amending legislation was before the Federal Parliament. Neither of the applicants, it was submitted, were in this category, they being merely a means by which the profiteers who organised this illegal traffic were able to achieve their objective. They were recruited from among the poorer peoples of the region to supply the necessary navigational skill and to take all the risks.

17 There is much merit in the submission that the new severe penalties are intended primarily for those who organise and profit from this activity. The sentencing remarks in each case, however, reveal that their Honours were well aware that neither applicant was a prime organiser and merely played a limited role. Nevertheless, as was observed, it was a vital role to the achievement of the illegal enterprise. Their Honours were well justified in each case in my view in taking that into account and in the views they took that the conduct of Mr Cita and Mr Lamaha was such that the penalty imposed should reflect the strong need for general deterrence, even though neither applicant was a prime organiser.

18 Counsel for the applicants sought leave to refer to additional material which was not before either sentencing Judge. This comprised official Commonwealth publications inter alia as to Australia's Refugee and Humanitarian Program, Australia's International Protection Obligations, Controversial Visa Applicants, Temporary Protection Visas and Unauthorised arrivals in Australia, Immigration Detention and People Smuggling. There was no objection to the court receiving and considering this additional material so that, by consent, leave was granted.

19 On the basis of this information it was advanced for the applicants that the vast majority of persons gaining unauthorised entry into Australia have been granted temporary protection visas. In the case of Mr Cita some 96 per cent of the passengers which the Department of Immigration and Multicultural Affairs had processed, and in Mr Lamaha's case some 98 per cent of the passengers processed, had been granted Temporary Protection Visas. Temporary protection is only granted to those who are found to be refugees. The additional material also formally confirms that Australia is a signatory to the United Nations Convention of 1951 and the 1967 Protocol relating to the status of refugees and has acknowledged its "international obligation not to return a refugee to face persecution or death in their homeland".

20 From this material it was contended for the applicants, in essence, that in respect of almost all of their passengers it should be accepted that Mr Cita and Mr Lamaha were in truth engaged in what was submitted to be a victimless crime, which was more accurately to be regarded as the humanitarian activity of placing refugees. In most cases the refugees were from Iraq, Afghanistan and other Middle Eastern countries. Rather than the applicants being part of a scheme which preyed on those unfortunate refugees for their money, leaving them in the end after a grim ordeal in the hands of the Australian authorities to face the likelihood of being deported and returned to their homeland, the additional material should be accepted, it is submitted, as revealing that Australia has accepted and will honour an international obligation to receive and offer protection to refugees. Hence, the prospects of a new life for the passengers of Mr Cita and Mr Lamaha should be seen to be quite good. On that basis and reasoning it is submitted that the view of the seriousness of the criminal conduct of Mr Cita and Mr Lamaha which was taken by the sentencing Judges was much too severe. That exaggerated view of the seriousness was reflected, it is contended, in a number of the observations made by their Honours in their sentencing remarks and in the sentences that were imposed.

21 There are many difficulties with this line of reasoning. There is at once an obvious difficulty with the proposition which seeks to categorise the knowing involvement of both applicants in a clandestine and illegal activity, solely for their own personal financial gain, as an humanitarian activity. Further, even the additional material relied on by the applicants reveals there are errors and pitfalls in the reasoning advanced. For example, the information expressly relied on to support the contention that 96 per cent and 98 per cent of the processed passengers respectively of the applicants had been granted Temporary Protection Visas discloses, on closer examination, a less attractive picture. These percentages were of those processed at a particular date. A fact sheet published by the Department of Immigration and Multicultural Affairs in August 2000 discloses that of Mr Cita's passengers, only 161 or some 57 per cent had Temporary Protection Visas, whereas four had departed from Australia and 116 were still in detention, ie they were under investigation, awaiting repatriation to a safe third country, had been refused refugee status or were involved in legal proceedings as to their future. The same publication discloses that of Mr Lamaha's passengers, only 138 or some 77 per cent had Temporary Protection Visas, whereas 1 had departed from Australia and 42 were in detention. This official publication discloses that those who are not found to be refugees may experience a long wait before return and re-admission agreements with other countries can be effected. Further, new measures announced by the Immigration Minister in October 1999 included excluding unauthorised arrivals from permanent residence in Australia and granting genuine refugees only a three year temporary protection visa or a short-term safe haven visa, with a further consequence that they would not be able to sponsor their families to Australia.

22 There is a more fundamental objection to the submission, however, as it fails to have due regard to the legislative scheme of the Migration Act and the degree of seriousness, for the purposes of that Act, which is properly attached to the conduct of the applicants which constituted the offences for which they were sentenced.

23 Section 232A of the Migration Act focuses on those who organise or facilitate the bringing or coming to Australia of a group of five or more people, knowing the people will become unlawful non-citizens on their entry into Australia. For present purposes both Mr Cita and Mr Lamaha facilitated the coming to Australia of very large groups indeed of people, with the necessary knowledge. It is accepted they were not among the primary organisers of this activity but they did knowingly involve themselves in it, and they did so solely for personal financial gain. The role that each played was in fact critical or pivotal to the success of the entry of a very large group of people.

24 Section 232A operates against a 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 among those seeking to enter and remain in Australia, 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 remain in Australia. Inevitably very many factors must be weighed in this process including, in the case of refugees, the nature and extent of the hardship and tragedy which has led to their present situation and the degree of risk of persecution or death which they face if they are not able to settle outside their homeland. Health considerations, their family situation and the prospects of a successful assimilation into Australian society are among other material considerations relevant not only to the consideration given to refugees but to all who wish to enter and remain in Australia.

25 The activities in which Mr Cita and Mr Lamaha involved themselves for their own ends frustrates much that is being attempted by this legislative and administrative system. Regardless of their status and need, persons who are able to find the means and the money are deposited in Australia claiming, in most cases, refugee status. Of necessity, a great deal of administrative effort and finance must be diverted to their immediate care and custody, to an assessment of their health needs and of any potential health risk they present, to their medium term care and custody, to the assessment of their circumstances to determine whether or not they should be allowed to remain in Australia, and if so whether on a temporary or more permanent basis. If not, it is often a complex diplomatic task to effect their departure from 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.

26 Given these circumstances it cannot be said, as the submissions sought to do, that the criminal conduct in which Mr Cita and Mr Lamaha knowingly involved themselves was in any real sense a victimless crime. The passengers themselves were exploited. They had to commit large sums of money to secure their clandestine entry into Australia and in doing so had to face the risks to health and safety, and to endure the privations, of such a journey in craft ill-suited to the task. Of course, the applicants received relatively little of the profits from this illegal activity, but their involvement was solely to secure what for them was a tempting portion of those profits.

27 The additional material provides further confirmation of the growing prevalence of unauthorised boat arrivals. Three unauthorised boats arrived in 1989/90, carrying 224 people. In 1998/99 there were 42 unauthorised boat arrivals, carrying 926 persons. In the part year 1999/2000 (to 25 January 2000) 56 unauthorised boats had arrived and these carried in all 3133 persons.

28 Not only were the passengers exploited by the organisation in which the applicants joined, but it can be seen that the many other deserving people who might otherwise have secured lawful entry to Australia are also indirectly victims of this activity. Further, the Australian people and government must deal with the health and other risks of this activity, and provide the very substantial resources necessary to deal with those who attempt clandestine entry and to attempt to detect and prevent such entry. The difficulties of detection and prevention, and the lure of big profits, albeit only relatively so in the case of the applicants, by those who involve themselves in organising and facilitating the clandestine entry of persons to Australia, and the demonstrated and growing prevalence of this conduct, are features which commend the need for general deterrence to be reflected strongly in the sentences imposed on those who are detected.

29 The sentencing Judges also gave consideration to a good deal of detailed information as to sentences passed in earlier cases of a comparable nature. That material is also before this Court and it was brought up to date for the purposes of these applications. Leaving aside the two applicants, this material reveals that in the year 2000, to 7 November 2000, 55 adult persons who were convicted of facilitating the bringing of people to Australia by unauthorised boat entries in contravention of s 232A received sentences in Western Australian courts ranging from 2 years to 6 years imprisonment. The sentences varied, as is to be expected, according to the circumstances of the particular offence especially the role, eg skipper or crewman, and the personal circumstances of the particular offender. Many of these cases involved pleas of guilty. One factor which clearly affected the sentence imposed was the number of persons carried on the vessel. These ranged from 14 and groups numbering in the 20's, through several groups in the 70's, to 140 and 156, to a vessel which carried 228 persons. In this last case two offenders received sentences of 6 years imprisonment and a third a sentence of 5 years imprisonment. Many of the sentences imposed were imprisonment for periods of between 4 and 6 years imprisonment.

30 The principles on which this Court approaches an appeal against sentence have been long settled. In House v The King (1936) 55 CLR 499 at 505 the High Court said -

"It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

31 In Lowndes v The Queen (1999) 195 CLR 665 at 671-672 the High Court further observed that:

"a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. ... The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."

32 It is necessary to determine, therefore, whether it was open to the sentencing Judges, in the proper exercise of sentencing discretion, to form the views they did of the seriousness of the conduct of the two applicants. Of particular relevance for this purpose was the relatively lowly role of the applicants in the hierarchy of those involved in organising or facilitating the bringing of such large numbers of people to Australia. Also of particular relevance are the circumstances that in each case the applicants knowingly participated in the offences, did so for personal financial gain, and the strong need for a deterrent sentence.

33 For the reasons canvassed in this decision we were not persuaded that either sentencing judge fell into error in the consideration given to the facts of the offences or as to the personal circumstances of the applicants. The arguments advanced for the applicants have not shown that either judge was in error as to the degree of seriousness of the conduct with which they were dealing when that is viewed in the context of the relevant legislative scheme of the Migration Act. As indicated, there are, in our view, sound and compelling reasons why the conduct of each of the applicants is properly to be viewed as warranting significant punishment even though neither of the applicants was a primary force in the organisation of the events constituted these offences. The sentences imposed may be seen as firm but they are not, in our view, outside the range of sound exercises of sentencing discretion.

34 In each case the starting point was less than half the maximum penalty provided. In our view it was well open to their Honours to take the view that these starting points were appropriate given the knowing and vital part played by Mr Cita and Mr Lamaha in facilitating the illegal entry into Australia of such large numbers of people. The difference between the two starting points principally reflects, in our view, the different numbers of people brought to Australia.

35 One may well feel for the applicants who have become pawns in the illegal machinations of other persons in their country and victims of their own impoverished circumstances. Nevertheless, lured by the promise of personal financial gains beyond their ordinary expectations, they knowingly involved themselves in this activity. Their readiness to run the risk of modest punishment provides further confirmation of the need for strongly deterrent sentences if others similarly situated to the applicants are going to be dissuaded from involving themselves in offences of this nature.

36 For these reasons we were not persuaded that any error of principle or fact has been revealed or that there is any justification for interfering with the sentences imposed.

37 It was for these reasons that on 13 November 2000 the Court refused leave to appeal to each applicant.

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