CDirector of Public Prosecutions v Sadiri and Mancora

[2012] VCC 1546

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-11-01942
CR-11-01944

DIRECTOR OF PUBLIC PROSECUTIONS

V

PUTRA SADIRI

-and-

MANAKUNI MANCORA

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	27 September 2012
DATE OF SENTENCE:	3 October 2012
CASE MAY BE CITED AS:	CDPP v Sadiri & Mancora
MEDIUM NEUTRAL CITATION:	[2012] VCC 1546

REASONS FOR SENTENCE

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Catchwords: Sentence – people smuggling – change of policy – no mandatory minimum sentence required – lengthy pre-trial detention – delay – previous convictions for people smuggling

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R. Barry	CDPP
For the Defendant Sadiri	Mr T. Wraight with Ms K. Argiropoulos	Lethbridges
For the Defendant Mancora	Mr J. McMahon with Ms L. Featonby	Robert Stary Lawyers

HER HONOUR:

1.On 12 May 2010 a boat, soon designated as SIEV 147, was seen in Australia’s contiguous zone. In it were 4 Indonesian crew and 21 Afghanis intent on sailing to Australia and seeking asylum. The boat was a shark fishing boat, not a vessel built to carry passengers across the sea from Indonesia to northern Australia. When boarded by the Australian Navy, it had minimal navigation equipment, and apart from sufficient life jackets to accommodate all passengers and crew, minimal safety equipment.

2.The passengers had been housed on the deck of the boat. A plastic sheet over part of it provided the only shelter for the passengers. There was no toilet on board, just a hole at the back of the cabin. The passage was rough, and one passenger had fallen overboard, and was rescued by a crew member. It had been 5 days since the boat had started its journey, from a remote beach about 5 hours drive from Surabaya. There, under cover of darkness, the passengers had been ferried out to the boat on smaller vessels and helped aboard by the crew. None were asked for, or produced any travel documents giving them any right of entry to Australia. Although it is clear the passengers wanted to be taken to Australia, and had paid people smugglers to take them to Australia, there was no coercion, force or threat of force employed by any of them towards any of the 4 crew to compel the crew to steer the boat towards Australia.

3.The boat was intercepted by the Australian Navy and it, and all on board, were taken to Christmas Island, arriving there on 15 May 2010. None of the crew or the asylum seeker passengers had a lawful right to enter Australia. You, Manakuni Mancora, were later described by passengers on the boat as the captain, or the person steering the boat. You, Putra Sadiri were described as the person who steered the boat when Mancora was sleeping. You do not challenge those characterisations of your roles. A search of your belongings revealed that you, Mancora, had 1,353,000 rupiah in your possession, and you, Sadiri, had a little under half that, 566,000 rupiah. Although they are relatively modest amounts in Australian dollar terms, they are substantial in terms of your earning and buying power in Indonesia.

4.In 2010, 134 SIEVs, carrying a total of 6,555 asylum seekers arrived in Australia. That was double the number of arrivals, both of boats and of asylum seeking passengers, from the previous year.

5.Public and political attention was focused squarely on the asylum seekers. The personal circumstances of those who crewed the boats received little or no public attention. When speaking of people smugglers there was no differentiation in the public domain between those who ran the people smuggling operations, those who arranged the travel of the asylum seekers to places where they could board boats destined for Australia, those who procured the boats and recruited the crew, or the recruited crew who sailed the boats to Australia.

6.

The Migration Act 1958 creates a number of offences relating to the bringing to Australia of people with no lawful right to enter Australia. At the time of your arrival in Australian waters, the crew of boats bringing not less than 5 people with no lawful right to enter Australia were charged with an offence under Section 232A of the Migration Act 1958. That carried a maximum penalty of

20 years imprisonment, and by operation of s.233C, mandatory minimum head sentences and non parole periods were fixed. They were 8 years imprisonment with a 5 year minimum for those previously convicted of certain like offences, and 5 years imprisonment with a non parole period of 3 for all others. These mandatory minimum penalties likewise did not allow for any differentiation between the roles and circumstances of people involved in people smuggling. It takes little reflection to appreciate that the people most likely to be identified as involved in people smuggling and apprehended in Australia are the crews of the boats. The profiteers, the heads of the operations, the middle men who facilitate the movement between countries of asylum seekers, and those who procure the boats and the crews are rarely within Australia’s jurisdiction. They operate outside Australia, making the gathering of evidence of their participation, for use in an Australian court extremely difficult to obtain. The crew members who are on board the boats when they arrive in Australian waters are generally fishermen, from remote places in Indonesia. They are generally poorly educated, and eke out subsistence existences. Their knowledge of the world outside their village, town or island is limited. Their access to means of communication and information that we take for granted, traditional media such as newspapers, television or radio, or newer media, the Internet, and social media is extremely limited, or non existent. They are the least likely of all in the people smuggling chain to know of Australia’s policies, or laws in relation to the treatment of those involved in people smuggling. Yet they are the ones most likely to be subjected to punishment by Australian law for their role in people smuggling. They are the ones least likely, one would have thought, to have the knowledge of Australia's laws and policies and so therefore to be deterred from considering embarking upon such a venture.

7.I share the views, expressed by many of my fellow sentencing judges around the country that the mandatory minimum sentences which provisions such as s.323A compel judges to impose on the crew members on board an asylum seeker boat are unfair, disproportionately high and incapable of allowing a sentence which properly reflects these matters in an individual case.

8.One effect, not prominent in public consciousness, of the combination of the sharp rise in arrivals, and the introduction of mandatory minimum sentences for people smuggling charges, was that those charged with the responsibility for investigating, charging and trying people smuggling cases were swamped.

9.For you, Mr Mancora and Mr Sadiri, the result was you spent 9 months in migration detention in Darwin, before you were even charged. You were then charged with a mandatory minimum penalty offence under s.232A. Once charged, yours was one of the block of cases allocated to be tried in Victoria. As a result, you were not only transferred from migration detention to remand in a prison, but you were moved from Darwin to the Metropolitan Remand Centre in Melbourne and there you have remained since. Your trial was listed for hearing in August this year, more than 2 years after your arrival in Australia.

10.Before your trial commenced, the Court of Appeal ruled, in PJ v R that it was necessary to prove in a charge laid under s.232A that the accused intended to take the boatload of passengers to a place they knew or believed was Australia, and which was, in fact, part of Australia[1].

[1] PJ v R [2012] VSCA 146

11.Following that decision, the prosecution indicated it intended to lead evidence that each of you had twice previously been convicted of people smuggling offences. Such evidence, it argued was relevant to the issues of knowledge your destination was Australia and knowledge that it was an offence to bring people without a lawful right of entry to Australia into the country.

12.After a pre trial hearing I ruled the evidence of the circumstances of your previous convictions was admissible in proof of these facts in issue. Following that, you each entered pleas of guilty to the charge of people smuggling under s.232A. Your previous convictions for people smuggling were not caught by the definition of, “repeat offence” in s.233C, so you fell to be sentenced by reference to the lower of the statutory minima, namely 5 years with a non parole period of 3.

13.Following your pleas of guilty, notices of discontinuance were filed in respect of the other two crew on the boat, and they were removed to immigration detention and returned to Indonesia.

14.On the application of your counsel, your plea hearing was set down for a date 6 weeks after the entry of the guilty pleas, to allow psychological assessments to be conducted. That date was later further extended to 27 September, at the request of your counsel, to allow further time for the assessments to be concluded.

15.At the same time as these steps were being taken in respect of your trial and plea, the Government had retained an expert panel, comprising Air Chief Marshal Angus Houston, Mr Paris Aristotle and Professor Michael L’Estrange, "to report on policy options to prevent asylum seekers risking their lives on dangerous boat journeys to Australia"[2]. The panel’s report was provided to the government in August 2012. Recommendation 4 urged urgent advancement of bilateral cooperation on asylum seeker issues with Indonesia. One specific part of Recommendation 4 was that:

"Changes to Australian law in relation to Indonesian minors and others crewing unlawful boat voyages from Indonesia to Australia should be pursued with options including crew members being dealt with in Australian courts with their sentences to be served in Indonesia, discretion being restored to Australian courts in relation to sentencing, or returning those crews to the jurisdiction of Indonesia".[3]

[2]Terms of Reference, Report of Expert Panel on Asylum Seekers, August 2012

[3]Report of Expert Panel on Asylum Seekers, August 2012, para 3.22

16.The Attorney General soon thereafter issued a ministerial directive to the Director of Public Prosecutions in pursuance of her powers under s.8 of the Director of Public Prosecutions Act 1983. That resulted in the discontinuance of charges against a large number of Indonesian crew who were then awaiting trial and the filing over of charges which did not carry a mandatory minimum sentence in place of the s.232A charges pending against most, if not all of the remaining Indonesians charged with people smuggling offences.

17.

Although you have both been arraigned on a s.232A charge, and had pleaded guilty to it, when the plea hearing finally came on before me, on

27 September, consistently with the terms of the ministerial directive, the prosecution filed over a charge under s.233(1)(a) of the Migration Act, and you each pleaded guilty to that substituted charge.

18.The charge to which you have now pleaded guilty, and for which I must sentence you, is one of bringing non citizens to Australia, under circumstances from which it might reasonably be inferred the non citizens intended to enter Australia in contravention of the Act, that is, without a lawful right to enter. It carries a maximum penalty of 10 years imprisonment, half that attaching to a people smuggling charge under s.232A, and the sentencing judge is not compelled under s.233C to fix a minimum term.

19.So it is you come to be sentenced, 2 years and four months after you sailed SIEV 147 towards Ashmore Reef, on a charge which allows me to exercise my sentencing discretion by reference to normal sentencing principles, unfettered by the arbitrary unfairness of a mandatory minimum term.

20.You, Putra Sadiri, are now 32 years old. You were born in Rota, an Indonesian island, and have lived there all your life. You were schooled to year 6, and have worked as a fisherman ever since. You are married, and have 3 children under 9. Your income from fishing has been enough to support the basic needs of your family, but you live essentially a subsistence existence. I was told your income did not cover the cost of medical treatment, and that you owed money for treatment provided to your children.

21.You acknowledge, consistently with what Mr Mancora said in his interview, that you were paid 5 million rupiah for your participation in this. This is a substantial sum, compared to the amount you could expect to earn from fishing. You told your counsel you averaged 300,000 rupiah a week from fishing.

22.I am told that since your detention in Australia, your wife has struggled to support the family. Your two older children have been sent to live with relatives, while she, using money you have been able to send home to her, has started a modest business selling cookies and cakes.

23.The consequences for you have been significantly more onerous this time, compared to the two previous occasions when you had been charged with people smuggling. On the first occasion, in June 1999, after 30 days in custody, you were released on a 3 year recognisance, and deported. A sentence of 5 months and 20 days was held in abeyance on your promise to be of good behaviour for 3 years. You did not keep that promise. 6 months later, you were sentenced for a second offence of people smuggling, committed only 2 months after your release and deportation. On the second occasion, you were sentenced to be imprisoned for 27 months, and directed to serve 17 of it before release on recognisance, the balance held in abeyance for 2 years, again on your promise to be of good behaviour. When you were sentenced for the second offence, the sentence for your first offence was also ordered to be served, half of it cumulatively upon the sentence for the second offence. Again, you were deported on completion of the time you were directed to serve before release.

24.You explained to Mr Simon Candlish, the psychologist who assessed you for the purposes of this plea, that you committed the second offence because you had not been paid the million rupiah you had been promised for the first offence. You described that as a lot of money, back then. You also told him you thought that you had been given 5 – 6 years of good behaviour, and that you would be considered like a new person after that.

25.You were young, and described yourself as without responsibilities at the time of the 2 previous offences. You did not, on your report to Mr Candlish, find imprisonment particularly onerous then. I accept now, as a mature man, with family responsibilities, that you have suffered as a result of the isolation from your family on this occasion.

26.I accept also, the length of time you have already been in detention and custody, nearly 2 and a half years, the prospect of a sentence imposing a minimum term of at least 3 years imprisonment, and the uncertainty of your fate for the whole time you have been in detention and custody, that is the time that it has taken for this matter to come to finality, has added to the hardship and burden of imprisonment.

27.I accept also that the last weeks have been difficult, as the other Indonesian crew members facing charges here in Melbourne have been progressively released, and deported. I was told that you and Mr Mancora are the only remaining Indonesian crew on remand in Melbourne. You have as a result, been increasingly isolated, as well as increasingly affected by the time it has taken for your matter to come to finality.

28.All of these matters I take into account in your favour, as relevant to the punishment already imposed, and to the burden of detention and imprisonment already served.

29.I accept you did not expect to be imprisoned for as long as you have been when you accepted an offer of 5 million rupiah to embark on this, your third people smuggling venture. However, I do not consider that to be a mitigator.

30.You knew it was against the law to bring people by boat to Australia in the manner you did, and you knew from your own past experience there was a high likelihood you would receive a prison sentence. It would take little reflection to appreciate you would likely receive a longer term than you had on the previous occasions. You knew your circumstances were different this time, that you had a wife and children dependent on you. You must have known that your wife and children would suffer as a result.

31.

Although your limited education, income and prospects make you vulnerable to offers of making comparatively large sums from illegal activities, nonetheless you made a conscious choice to engage in this for gain.

Mr Candlish said you appeared to recognise your behaviour was wrong, but you appear to minimise and justify your actions. It is clear your past experiences of charge, imprisonment and deportation have not been sufficient to deter you. The sentence must reflect these matters.

32.You, Manakuni Mancora, are 39, a married man and father of 7 children. You have lived all your life in a small town in Rota. Like Mr Sadiri, you left school after completing primary school, and have been a fisherman all your working life. You, too, have lived essentially a subsistence existence The size of your family put added strains on your limited means, and you told Mr Guy Coffey, the psychologist who assessed you that the cost of their education had left you with mounting debts you were unable to pay off.

33.It was that, you told him, that led to your agreeing to accept 20 million rupiah to divide amongst a crew recruited by you to sail a boatload of asylum seekers to Australia.

34.Like Mr Sadiri, you too have been twice sentenced for people smuggling. Unlike Mr Sadiri, you were sentenced as a first offender on each occasion, because you had given different, false names on each occasion.

35.

On the first occasion, in November 1998, you were sentenced to 8 months imprisonment. Within weeks of the expiration of that sentence you were again apprehended in Australian waters crewing a boat containing asylum seekers, and were sentenced to 2 years imprisonment. You were directed to serve

12 months of that before release on recognisance. The balance was held in abeyance for 12 months, on your promise to be of good behaviour. Again, like Mr Sadiri, you were deported after serving that part of the term of imprisonment required to be served before release. You said you were paid

1 million rupiah for the first trip, and 500,000 for the second. On each occasion, you were a crew member.

36.On this occasion, you were more than a crew member. You were the person responsible for recruiting the other crew, and for dividing amongst them (in the proportions you saw fit) the money you had been given by those who recruited you, for that purpose. You were responsible for choosing the route, and steering the boat. The other crew members acted at your direction. Your role and culpability, is therefore greater than that of Sadiri.

37.Mr Coffey excluded any psychological disturbance contributing to your offending. He said your participation, “Is better understood with reference to the material conditions of [your] existence than [your] psychological state”.

38.You too, have found imprisonment, isolation from your family, and in recent weeks, isolation from your fellow Indonesians held on remand at MRC on people smuggling charges, the delay and uncertainty about your fate, onerous. You are concerned about the hardship your wife and children have experienced whilst you have been in custody in Australia. Mr Coffey said you now reproach yourself for having abandoned your wife and children, and subjected them to hardship.

39.Like Mr Sadiri, you well understood what you were doing, and the consequences. You made a considered decision to again lend yourself to people smuggling for gain. That the consequences have been more severe than those you calculated is no mitigator.

40.People smuggling offences, whether the subject of mandatory minimum sentences or not, are serious offences. There are many people who feel impelled to leave their homes, and to take a chance on obtaining asylum in Australia. Most of those who arrive in Australia by boat from Indonesia are ultimately adjudged to be people who have a well founded fear of persecution in their country of origin, and are granted asylum here. For each one of those, there are many others who have fled their country and who wait in camps in the hope that they will be given safe haven in Australia or some other country. For them, the wait can seem interminable, and their ultimate destination unclear. It is little wonder some will risk the perilous journey across the seas from Indonesia to northern Australia, rather than wait in a camp, or remain in fear in their own country or somewhere else. Not all of the people who make the desperate decision to take the chance of a perilous boat journey live, gain Australia's shores and are able to pursue their hope of gaining asylum.

41.Every person who engages, for gain, in the people smuggling chain is contributing to the exploitation of these desperate and vulnerable people. The organisers would not be able to ply their trade if they were not able to enlist the assistance of people prepared to sail and crew boats loaded with asylum seekers from Indonesia’s shores to Australia's. Those who spend their days on the seas, who know the seas around their islands and the seas between Indonesia and Australia, are integral parts of the people smuggling operation. Those who are prepared to captain, steer or crew crowded boats, built for fishing, not for ferrying people across the treacherous seas between Indonesia and Australia, cannot avoid legal or moral responsibility for their actions because they are themselves poor, and are offered sums of money much greater than the amounts they can earn from their traditional occupations.

42.It is clear the sentences must reflect denunciation of the people smuggling trade generally, and of the role of those who for gain, captain, steer, navigate and crew the boatloads of desperate asylum seekers to Australia. They must act as a deterrent to all those who participate in it within the limitations that I have described of deterrence for people in your circumstances. That is with limited access to information about Australia and its policies and laws. However, they must also act as a deterrent to each of you, as you have had previous experience here and those previous sentences have made you aware of our laws but have not deterred you.

43.The sentences must also acknowledge the utilitarian benefits of your pleas of guilty, the excessively long time that you have spent in custody before being charged, tried and sentenced, and the added isolation experienced by a person who does not speak English, and who is imprisoned far from his country of origin and from his family.

44.Mr Barry, on behalf of the commonwealth, helpfully provided me with a schedule of what I was told were all superior court sentences imposed for s.233(1)(a) offences.

45.The vast majority of those sentences in the schedule were passed in 1999 or 2000. In my view they are of little relevance when considering current sentencing practices.

46.Apart from 2 Western Australia district court sentences in February 2010, the remainder of the sentences in the schedule have been imposed since late August 2012, following the adoption of the expert committee’s recommendations, and the consequent directive to the Director of Public Prosecutions to deal with those awaiting trial on s.232A charges under s.233(1)(a) instead. These sentences reveal the following information, relevant to your sentences. Many of those sentenced since late August this year have, like you, spent 2 years or more in custody awaiting trial. Most had no criminal history. Only three had prior convictions for people smuggling. They were all for only one previous offence. One of the three with a people smuggling previous conviction also had a previous conviction for a fisheries offence. There were some others, without prior convictions for people smuggling, who had fisheries previous convictions, some one, one with three.

47.For all of these people sentenced since late August of this year the head sentences imposed ranged from 1 ½ to 3 years, and the recognisance release periods ranged from 6 months to 23 months. Many of the release periods exceeded the time already spent in pre sentence detention. On my analysis no recognisance release period was fixed for a time which exceeded the time already spent in pre sentence detention.

48.Mr Barry submitted the appropriate sentencing range was a head sentence of between 3 ½ and 5 years, and a non parole or recognisance release period of between 2 ½ and 3 ½ years. This range, even at its lower level, is above the highest sentences passed since August this year. However, none of those sentenced since August of this year had 2 prior convictions for people smuggling. Otherwise, the scant details contained in the schedule do not contain any material differences between your circumstances and those of the men already sentenced.

49.

I consider the fact that each of you has 2 prior convictions for people smuggling places you at the higher end of the range of crew members who have been dealt with since August of this year. I consider that your role,

Mr Mancora, justifies imposing a higher sentence on you than that imposed on Mr Sadiri. For both of you I propose to fix a period which you must serve before release on recognisance, that is a promise to be of good behaviour.

50.

Could you now both please stand. Putra Sadiri, on the charge to which you have pleaded guilty you are convicted. You are sentenced to be imprisoned for a period of 3 years and 3 months. You are to be released after serving

21 months on a recognisance release order in the sum of $500, to be of good behaviour for a period of 5 years.

51.Manakuni Mancora, on the charge to which you have pleaded guilty you are sentenced to be imprisoned for a period of 3 years and 9 months. You are to be released after serving 27 months on a recognisance release order in the sum of $500, to be of good behaviour for a period of 5 years.

52.I declare that each of you has spent 875 days in pre sentence detention, and I direct that the whole of that time be counted and reckoned as part of the sentence already served.

53.I have some additional orders I have to make. You may be seated whilst I do that. I have been asked to make orders for forfeiture for the sums of money found in your possession. I consider it appropriate to make those orders and I note that they were either consented to, or not opposed.

54.I declare pursuant to s.6AAA of the Victorian Sentencing Act that but for your pleas of guilty I would have sentenced you, Mr Sadiri, to a term of imprisonment of four years and four months and I would have directed your release on a recognisance release order after 27 months.

55.For you Mr Mancora, but for your plea of guilty I would have sentenced you to a period of imprisonment of five years and ordered your release on a recognisance release order after serving 33 months.

56.HER HONOUR:  Now on my calculation each of Mr Sadiri and Mr Mancora has already served a period in excess of the time I have fixed for their release upon recognisance.

57.MR BARRY:  Yes Your Honour.

58.HER HONOUR:  Yes, is there a representative from SERCO at court?  In other words, after they've entered in to their recognisance - -  -

59.MR BARRY:  They're in the building Your Honour.

60.HER HONOUR:  Thank you.

61.MR BARRY:  The Federal Police are here and we can track them down Your Honour.

62.HER HONOUR:  Thank you Mr Barry.  It is that the recognisance release order form your instructor is filling in.

63.MR BARRY:  Yes just being drawn up Your Honour.

64.HER HONOUR:  Thank you.  Am I able then to inform each  Mr Mancora and Mr Sadiri the effect of the order once they've signed their recognisance release?

65.MR BARRY:  Yes Your Honour.

66.HER HONOUR:  Anything either of you want to say about that?

67.MR BARRY:  No.

68.MS ARGIROPOULOS:  No Your Honour.

69.HER HONOUR:  Mr Sadiri and Mr Mancora the period that I have directed you must serve before being released on a recognisance, that is a promise to be of good behaviour, is less than the time that each of you has spent in detention and custody.  That means once you have signed the document that is now being prepared which is a promise to be of good behaviour for five years, you will be released from custody.  There is a representative from SERCO here and after you've signed those documents and made your promise to be of good behaviour you'll be taken to immigration detention and I imagine very shortly after that returned to Indonesia.  You will not be required to serve the balance of the sentence unless you come back to Australia and commit another offence in this country.  Do you understand that?  Thank you, you could be seated again.

70.MR BARRY:  They're ready Your Honour.

71.HER HONOUR:  Yes thank you.  Ms Argiropoulos and Ms Featonby can you or your instructors please accompany my associate down to the dock and make sure that your clients understand the orders and then sign them?

72.MS ARGIROPOULOS:  Thank you Your Honour, that document's been signed.

73.HER HONOUR:  Thank you.  All right the orders I pronounce reflected what I said I intended to do?

74.MR BARRY:  Yes Your Honour.

75.HER HONOUR:  Any other orders I need make?

76.MR BARRY:  No Your Honour.

77.HER HONOUR:  So logistically, what happens now?  They - - -

78.MR BARRY:  They can be released -  - -

79.HER HONOUR:  Can they wait in the court or released in to the - - -

80.MR BARRY:  Released in to the custody of the Federal Police upon - waiting for the DIAC Your Honour or SERCO.

81.HER HONOUR:  All right and so can they - once I've left the Bench, can they then wait in an anti-room or in the foyer on this floor?

82.MR BARRY:  Yes Your Honour.

83.HER HONOUR:  All right, thank you.  Adjourn.

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