SCC 20018445 to 20018447, 20018425

and 20018448 to 2001850

THE QUEEN

and

EDISON PULING, MAL SORRO,

MUSA TERA, AMIN BERE,

BURHAN ABAKAR, AMIRUDIN

and MUHAMMAD YUSUF AMIN

(Sentence)

RILEY J

TRANSCRIPT OF PROCEEDINGS

AT DARWIN ON WEDNESDAY 14 MARCH 2001 AT 12.30 PM

Continued from 12/3/2001

Transcribed by:

Court Recording Services (NT) Pty Ltd

I have before me seven prisoners for sentence for offences against section 232A of the Migration Act.

The matters relate to two quite separate journeys involving two vessels that brought people to Australia on different dates in November 2000. I have heard the matters together at the request of counsel, because many of the submissions to be made were applicable to all prisoners and to both sets of circumstances.

Notwithstanding that approach, each prisoner is to be sentenced as an individual and according to the particular circumstances applicable to him.

The prisoners Mal Sorro, Edison Puling and Musa Tera came to Australia on the vessel 'Burung Pipit' on 10 November 2000. They brought with them 24 male passengers, being 22 Afghani citizens, one Iraqi citizen, and one Palestinian citizen. As they approached the Ashmore Islands they were intercepted by a Customs vessel. They were provided with a warning as to the consequences of their actions should they proceed. They chose to proceed.

They were subsequently detained on 10 November 2000 and taken to Darwin for processing. They have been in custody of one form or another since 10 November 2000. None of the crew has a prior criminal record, none is suggested to have been an organiser.

The prisoners Amin Bere, Muhammad Yusuf Amin, Burhan Abakar and Amirudin came to Australia on another vessel on 16 November 2000. They had with them 48 passengers, being 37 Afghani citizens, five Sri Lankans, three Iraqi citizens, two who said they were stateless, and one Iranian citizen. They were also read a notice warning them of the penalties attached to offences committed against the Migration Act. They proceeded, notwithstanding that warning.

They were detained and transferred to Darwin for processing. They have been in custody since 17 November 2000. None of those prisoners has a prior criminal record, none is suggested to be an organiser.

Although the crew of each vessel was warned of the consequences of proceeding to Australia, 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 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 on the vessel 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 out-numbered by the passengers. That was the case in these two instances.

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 was, to them, a substantial amount of money. They were unable to resist because of their respective impecunious circumstances. It is clear that they were not motivated by humanitarian instincts in carrying out these journeys. They were each motivated by the money involved.

They have all co-operated with the authorities and they have all pleaded guilty at an early time. They are entitled to credit for those matters.

As is to be expected, there are differences between them. Two of the prisoners assumed the roles of master of their respective vessels. The crew members are of different ages and have different family circumstances. However, they are uniformly poor.

Except for Mal Sorro, they were driven to commit these offences by the need to provide funds for their families. Mal Sorro is a single man and different considerations apply to him.

The prisoners have demonstrated by their co-operation, their pleas of guilty, and by the matters put to me by Mr Read, that they are remorseful. I do not regard personal deterrence as a significant factor in this matter.

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 attempt to hide from the authorities or to disguise what they had done.

There can be little doubt that the offences to which they have pleaded guilty are both serious and prevalent. In 1999 the legislature amended the Migration Act to create the new offence under section 232A to which these prisoners have pleaded guilty. That offence substantially increased the penalties applicable. The increase is now being reflected in penalties imposed by the courts.

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. Whilst these offences are serious, they are far from being 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 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.

I do not have information before me as to the publicity given to the approach of the Australian courts to offending of this kind in the relevant parts of Indonesia. Obviously, the wider the message is conveyed, the more likely it will be to have any impact upon decisions made by other potential offenders in the future.

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 offence is to be served in a Territory prison, and is therefore not subject to remissions or reductions, the court must take that fact into account in determining the length of the sentence and must adjust the sentence accordingly.

In the Northern Territory, the previously system of remissions has been legislatively removed. Section 16G therefore has application. Historically the reduction of custodial sentences for remissions and the like has been about one-third of the sentence, and I take that into account.

I look now at the personal circumstances of each of the prisoners.

Amin Bere was the master of the vessel 'Haya Fajap' which brought 48 passengers to Australia. He is 49 years old. He is the head of the family, which includes his wife, a daughter aged 15, a daughter aged 12, and a son aged 9. The younger children are at primary school. The eldest daughter left school after primary school. He is a fisherman and usually operates from a paddle-type sampan. He is very concerned about his family who rely upon him for their existence.

He was offered 1.5 million rupiah. He was designated as the captain. The person who engaged him showed him how to use a compass. Others were also present when this was shown to him. Although Amin Bere was not a captain in the sense that he had earned any right to command the vessel, or had experience which placed him in a position to lead the others, he was still the person responsible for the vessel and must be treated as being in a different position to the crew. By accepting that designation, he undertook responsibility.

Muhammad Yusuf Amin is aged 44 years. He was a crew member. He is married and has eight children, with the oldest being 18 years of age. He works as a fisherman and, for a short period, drove a small mini-bus. He has no schooling. He started fishing when he was young, doing coastal-type fishing in the local area. His family survives on a basic diet. He was to be paid two million rupiah, but the money has not been paid.

Amirudin is a young man. There was some dispute as to his age. He originally said he was 23 years old and named his birthdate. He then said he was 18 years old. That issue has now been determined and I treat him as a person who is not 18 years old. X-rays show that he is at least 19 years old. In view of his claim to a specific birthdate when interviewed, and in the absence of further evidence, I find that he is 23 years old.

He lives with his parents and two sisters. His father is a farmer on someone else's land. They farm rice and corn on a subsistence basis. He left school after six years in primary school. He left because the family did not have enough money. He took on the job when a man came to his village and spoke to his father. His father said that he should undertake the exercise. He was paid one million rupiah, of which 500,000 was to go to his parents. He was engaged as a cook.

Burhan Abakar is 23 years old. He is married and he and his wife and two children live with his mother. His father died a long time ago. He has two sisters. He is the man of the family. He had no school because there was no money. He worked from the age of eight years. He would go fishing with a friend of the family. He has been a fisherman all his life. He was offered 1.5 million rupiah. He discussed that with his mother and she suggested that he take it because they needed the money. His mother has not been paid the money.

Turning to the other vessel, Mal Sorro was the master of that vessel. He is aged 25 years. His crew members were aged 19 and 18 years. He is in a different position from the other prisoners in that he is not a family man. Both his parents are dead, and died whilst he was a child. He has no brothers or sisters. He grew up in an orphanage. He worked for a period in building construction work and was paid 1000 rupiah per day. He has, in the past, been captain of a small boat.

At the time he was recruited for this voyage he was working on a small sailboat by himself. His economic position was difficult, but he did not have the need to

support his family, as did the other prisoners. As the captain and the senior man on the voyage, his responsibilities were greater and he is to be treated differently from his crew.

Edison Puling is aged 18 years. He is entitled to be more leniently dealt with because of his youth. He lives with his mother and father and two sisters and two brothers. His father is a local fisherman. He is the eldest child and works as a fisherman himself. He fishes from someone else's sampan and sells his fish in the market. He spent six years at school. He was offered half a million rupiah to undertake this voyage. He does not know whether he will get this money.

The final person is Musa Tera, who is aged 19 years. He is also entitled to leniency, based upon his age. He lives at home with his mother and two sisters. He is the sole earner in his family. His father died when he was in primary school. His father was a fisherman. He worked as a fisherman himself and also assists in farm work. Again this is subsistence living. He was to be paid 500,000 rupiah. He has not received the money. He was a little bit frightened by the people that he had to travel with as they were different from him. His role was to help in the kitchen and pump out the boat.

I turn to sentence each of the prisoners. They are each convicted.

Amin Bere is sentenced to imprisonment for a period of three years. I direct that he be released after serving a period of one year and six months imprisonment. That release will be upon giving security by a personal recognizance in the sum of $500 that he will be of good behaviour for a period of one year and six months. The period of imprisonment and the pre-release period will date from 14 November 2000.

Muhammad Yusuf Amin and Burhan Abakar will be sentenced to imprisonment for a period of two years and six months. I direct that they be released after serving a period of one year and three months imprisonment. That release will be upon each giving security by a personal recognizance in the sum of $500 that he will be of good behaviour for a period of one year and three months. The period of imprisonment and the pre-release period will date from 14 November 2000.

Amirudin is not entitled to the benefit of being a young man aged 18 or less. He is 23 years old. He will be sentenced to imprisonment for a period of two years and six months. I direct that he be released after serving a period of one year and three months imprisonment. That release will be upon giving security by a personal recognizance in the sum of $500 that he will be of good behaviour for a period of one year and three months. The period of imprisonment and the pre-release period will date from 14 November 2000.

Mal Sorro will be sentenced to imprisonment for a period of three years. I direct that he be released after serving a period of one year and six months imprisonment. That release will be upon giving security by a personal recognizance in the sum of $500 that he will be of good behaviour for a period of one year and six months. The period of imprisonment and the pre-release period will date from 10 November 2000.

Musa Tera and Edison Puling are both young men and entitled to special consideration because of their youth. They will each be sentenced to imprisonment for two years. I direct that they each be released after serving a period of 12 months' imprisonment. That release will be upon each giving security by a personal recognizance in the sum of $500 that he will be of good behaviour for a period of 12 months. The period of imprisonment and the pre-release period will date from 10 November 2000.