CDirector of Public Prosecutions v Khamisi

[2015] VCC 164

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-01215

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

SHARAM SHEGAR KHAMISI

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	20 February 2015
CASE MAY BE CITED AS:	CDPP v Khamisi
MEDIUM NEUTRAL CITATION:	[2015] VCC 164

REASONS FOR SENTENCE
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Subject:
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Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F. Holmes
For the Accused	Mr J. Williams with Mr A. Malik

HER HONOUR:

1Sharam Shegar Khamisi, the jury has found you guilty of one charge of facilitating the bringing or coming to Australia of a group of five or more people reckless as to whether they had a lawful right to come to Australia. 

2The facts underlying this offending are as follows; in 2006 you arrived here as a refugee from Iran and at the time of the offending were a permanent resident of Australia.  You and the co-accused, Ali Heydarkhani, met each other through your brother within the refugee community in Sydney where you all lived.  In about June 2009 you went to Mr Heydarkhani with a proposition that the two of you travel to Indonesia together, firstly to locate another of your brothers, Farid, who was living there and to look for potential travellers wanting to come to Australia without a lawful right to do so and to facilitate that for money.  In other words, you invited Mr Hader Khani to come to Indonesia to engage in people smuggling.  You had lived in Indonesia for a number of years as UN refugee and in that time met and worked with people involved in the people smuggling trade. 

3The two of you flew to Jakarta on July 24 2009 where you met Farid and then rented a villa in Cisarua, a Jakartan suburb, where you scouted for passengers.  You educated Mr Heydarkhani in inducing passengers to take the journey with you, they paying $6000 an adult.  They then stayed in villas arranged by you.  While recruiting passengers in Cisarua, you and Heydarkhani met a family group and through them a man named Lamas Al Buyagi who negotiated to send his family to Australia for a lower price, in return working with you as a people smuggler.  Lamas told you and Heydarkhani he had a friend called Lace who was also recruited to this people smuggling enterprise.  From that time on the four of you worked as a team.  This group recruited passengers, collected money, rented villas for them, organised transportation such as in buses, paid for accommodation in places such as Bali, occasionally collected passengers from the airport, arranged for passengers to travel to Maumere, the take-off point to the boat, as well as organising a boat for travel to Australia and paying bribes to police to enable travel of those passengers from Jakarta to Maumere. 

4Throughout the relevant periods you were referred to as Khalid and Heydarkhani was known as Ali Hamid.  Well in excess of five passengers were recruited.  Passenger witnesses gave evidence of being transported in two groups to Maumere, the ultimate destination where they were to board the boat that would take them to Australia.  The trip was aborted because Mr Heydarkhani and others were arrested on route.  After he was released he returned to Cisarua, as did a number of other passengers, by which time you had disappeared along with the money that had been paid.  Heydarkhani, Lamis and Lace then continued with the plan to send those passengers that had been recruited to Australia.  Ultimately they successfully placed them on a boat which left Indonesia on around 9 November 2009 which was intercepted in Australian waters on 12 November 2009, this boat being known as Siev 71.

5During the trial seven witnesses gave evidence of your involvement in their coming to Australia, three of them identifying you from photo boards.  Mr Heydarkhani also, in giving very full evidence against your entire involvement in the aborted trip, including your recruitment of him, identified a number of passengers from photographs beyond those who gave evidence at the trial who he said were part of the passenger group organised by you and he and from whom moneys were received.  He identified 12 people whose coming to Australia was facilitated by you.

6On 16 November 2012 in an interview with Australian Federal Police you admitted having the nickname Khaled, that you travelled to Indonesia in 2009 with Heydarkhani but claimed it was only so Mr Heydarkhani could organise your brothers' unlawful passage to Australia.  You said Heydarkhani was a people smuggler as was Lace but you were not and never had been. 

7Evidence was also led that between 3 June and 9 July 2010 you met with two Federal agents, providing them with information about the people smuggling industry in Indonesia, which included you travelling to Jakarta in July 2009 with another person.  You said you met two smugglers in Jakarta who said they would transport your brother to Australia for free if you worked for them.  You said you did this for about two or three months, that you knew all the people staging points and how the people smugglers worked with Indonesian Police.

8On the trial evidence was also led that you visited a trial witness, Sayed Reza, who had travelled on Siev 71 with his family for free, coming to that arrangement with you and Heydarkhani, as he had paid money to another people smuggler who took off without arranging a boat trip.  Evidence was led you told Mr Reza you had looked after his family while they were in Indonesia and now they had to look after you as you had expenses arising from your court trial and your travel from Perth.  Mr Reza said he did not owe you any money.  Those latter pieces of evidence were led as further demonstrating your involvement in the people smuggling business, in particular the passengers ultimately placed on Siev 71. 

9I now turn to your personal circumstances.  You are 42 years old, one of 12 children born to your parents in Southern Iran of whom 10 survived, two older brothers being killed in the Iran-Iraq war when they were soldiers.  Your family are part of the Mandaic community, which has now virtually collapsed in Iran due to religious persecution.  Your father, a jeweller, was a successful businessmen who owned multiple shops in the city of Avahz where you lived.  Members of your religious community of which your father was a leader who presided at weddings and funerals, suffered extreme discrimination from Persian Iranians.  They were considered unclean and Persian Iranians would wash their hands if they touched one of you.  At school you were made to sit separately in the classroom.  You recalled as a young child that a church your father had helped build was burnt down by Persians. 

10When you were 14 the dangers posed by the Iraq Iran war and the possibility of conscription led your family to send you to Dubai where you lived with an older married sister who worked as a jeweller.  You went to school there for three years, then helped her in her shop when she graduated.  Ultimately, you spent about 11 years in Dubai then travelled back to Iran when you were 24 in 1997 as your father had died in jail, having been imprisoned over his religion.  During the visit for his funeral you were identified as liable for military service and conscripted for two years, during which time you were systematically discriminated against because of your religion, forced to eat separately because you were regarded as unclean, paid less, given less leave and sent on dangerous work such as entering minefield areas first. 

11In 1999 an unexploded bomb blew up the vehicle you were travelling with, killing the officer next to you and causing serious injuries to your arms.  You were hospitalised for a month but left with a permanently dislocated left elbow, deformity to your left arm and right wrist and then, once recuperated, required to complete the remaining eight months of military service owed.  You then left Iran permanently, returning to Dubai in 2000 and in 2001 decided to seek asylum in Australia and with your mother travelled to Indonesia.  There you made an unsuccessful attempt to come to Australia by boat but were turned around and you and your mother then registered with the UNHCR, living in Jakarta in shared accommodation and you caring for your mother who was unwell.  You were not entitled to work or study and after five years you eventually received a humanitarian visa.  You came to Australia in 2006 and settled in Sydney where one of the largest Mandaic communities in the world exists with its own church and community.  You then began a supermarket trolley, manufacturing and repair business which by 2009 was apparently employing about 40 people. In that year your travel to Indonesia was cut short by heart trouble, you underwent a surgical implant there of a stent in your leg before your family arranged for your assisted travel back to Sydney. 

12In 2010 you married your wife who is a Chinese national who has a 14 year old son living with her mother in China.  She came here in 2009 on a student visa to study English, meeting you in October 2010 and you have sponsored her for a spousal visa which remains undetermined.  She holds a bridging Visa C which allows her to work but not to access benefits or Medicare.  You and she ultimately relocated to Perth in 2014 but returned to Melbourne for this trial.

13In August last year you were assaulted by a person you were living with in Melbourne whilst on bail and you and your wife were forced to find emergency housing through Hanover Housing.  Then, after evidence was led of your visit to Mr Risa, you were remanded in custody, your wife remaining in Melbourne in the crisis accommodation provided through Hanover support services.  She continues to remain supportive of you.  You have some health difficulties, suffering high blood pressure for which you take medication, as well as antidepressants for anxiety and chronic pain relating to the injuries to your arms. 

14The maximum penalty for bringing groups of non-citizens into Australia, which in your case is an aggravated offence as it involved at least five people, is 20 years' imprisonment and/or a $220,000 fine. There is a minimum mandatory term of five years' imprisonment with a three year minimum term which must be imposed on first offenders. I accept that your imprisonment will have an immediate effect upon your wife who remains in Australia only on an undetermined spousal visa. I also accept that as a result of your conviction you will fall within the mandatory visa cancellation amendments to the Migration Act 1958 made by the Migration Amendment Character and General Visa Cancellation Act which provides that from 12 December 2013 the Minister must cancel a Visa granted to a person who does not pass the character test by having "a substantial criminal record" which is defined as having been sentenced to a term of imprisonment of 12 months or more. I am satisfied the risk you will lose your permanent resident status in Australia and be deported is sufficiently likely that I should take it into account in sentencing you.

15I accept this has two prongs.  First, it is an outcome that will weigh heavily upon you (and your counsel informed me you believe that if you are returned to Iran you will be arrested by secret police and hanged as you have known this to happen to other members of your religious community).  Second, with deportation you will be separated from your family, all of whom who have now left Iran, many of them settling in Australia, others in America and Dubai.  I also accept your time in prison will be made more difficult by worry over your wife's fate.

16You were found by psychologist, Guy Coffey, to be in a depressed mood in custody but not suffering panic or intense anxiety.  You have no formal thought disorder or delusion suggestive of psychosis.  Mr Coffey found that because you have suffered depression at a significant level for at least two years, essentially in relation to this trial, you attract a diagnosis of persistent depressive disorder.  You did report transient hallucinations which Mr Coffey found were reflective of distress, depression and non-rational ways of coping with the stresses you are enduring rather than being indicative of any psychopathology. 

17Mr Coffey concluded: "Due to his history of trauma and hardship Mr Khamisi is likely to be predisposed to psychological difficulties when under stress.  He has suffered from pain, anxiety and depression in recent years.  He experiences chronic pain", and that is referring to the injuries to his arms, "and there are some signs of deterioration in his mental state since being taken into custody.  In my opinion it is probable that he will experience mild to moderate deterioration in his mental health during expended period of imprisonment.  That may be partly mitigated by the provision of well-targeted psychological and psychiatric treatment."  He found the likelihood of re-offending, particularly in the manner dealt with by this court, to be low.

18In considering the appropriate sentence I am satisfied the minimum term would not sufficiently represent the seriousness of your role as a people-smuggler.  You do not fall into the lowest category of participation, for example, the role of a poverty-stricken Indonesian fisherman who has been lured to crew as a deckhand for about $50 AUD.  I am satisfied you were a prime organiser of a group of at least 12 passengers, that you recruited Mr Heydarkhani into the business and with him recruited passengers, took money from them, arranged for their accommodation and transport and received thousands of dollars for your efforts.  Your role is perhaps best described by His Honour Mr Justice Harper in the decision of DPP v Haddari [2013] VSCA 149 where His Honour stated, "The objective seriousness of the respondent's criminality does not equate with that of a lowly member of a Siev crew. I accept the Director's submission that the respondent was acting as an organiser quite prepared for financial gain to exploit the vulnerability of others.”  Mr Justice Harper described general and specific deterrence in such a case as "a particularly significant sentencing factor" and that "it is also necessary to take into account that greed was a powerful motive." 

19Given that you were apparently running a successful business I can only conclude that the motivating force for your decision to engage in this enterprise was greed.  There was also something particularly shocking about a man who has lived the difficult life of a refugee, enduring one unsuccessful illegal voyage and then five years in the limbo land of an UNHCR refugee waiting for admission into Australia, eventually finding refuge not only in a country which offered you security and opportunity but which also contained a community of the religious minority to which he had belonged, determining then to undertake this criminal enterprise simply for motives of greed.  I further accept, and this is based not only on the evidence of Mr Heydarkhani but other passengers brought here on Siev 71 that you absconded with money that you had obtained in this enterprise.  I regard your offending as shameless and callous and carried out by one who should have had more reason than many to be compassionate towards refugees and the terrible plight those passengers found themselves in, that is, suddenly forced to flee the country where they were born and where they had every intention of remaining for the rest of their lives and then suddenly essentially being forced into the life of a fugitive. 

20You have shown no remorse for your offending.  You pleaded not guilty.  You fought a protracted trial which involved a great deal of expense insofar as transporting interstate witnesses was concerned, in particular Mr Heydarkhani, and several Australian Federal Police officers.  I also accept that you attended upon Mr Risa and his wife, Ms Sultani, in order to obtain money from them in the course of the trial and I find this behaviour to be brazen and callous in the extreme.

21Whilst I take into account the difficult circumstances flowing on from your conviction, that is, the precarious position of your wife and the likelihood that you would be deported, in the end I am satisfied that having been the recipient of a great deal of good fortune as a refugee yourself you nevertheless took a calculated and criminal risk all for financial gain or greed and in activity with involved exploiting the vulnerability of the refugees you encountered.  You are deserving of condign punishment.  I therefore sentence you as follows.

22On the charge of aggravated people smuggling you are sentenced to 7 years' imprisonment.  I order that you serve a minimum term of four years and nine months. 

23Is there anything else I need to attend to?

24COUNSEL:  Your Honour, there's some pre-sentence detention.

25MS HOLMES:  Yes, there is.

26HER HONOUR:  How much?

27COUNSEL:  113 days, Your Honour.

28HER HONOUR:  I direct that 113 days of this sentence have already been served by way of pre-sentence detention.

29MS HOLMES:  As Your Honour pleases.

30HER HONOUR:  Thank you.  You can take Mr Khamisi down, thank you.

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