Director of Public Prosecutions v Abang and Ahmad
[2012] VCC 1424
•17 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-02198
CR-11002199
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SARIMIN ABANG NASRUDIN AHMAD |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 17 September 2012 | |
CASE MAY BE CITED AS: | DPP v Abang and Ahmad | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1424 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K Breckwig | |
| For Accused Abang For Accused Ahmad | Mr A Halpin Mr M Dempsey |
HER HONOUR:
1 Saramin Abang and Nasrudin Kadir Ahmad, you have each pleaded guilty to one charge of people smuggling between 1 January and 2 January 2011, contrary to s.233A of the Migration Act (1958). S.233A has a maximum sentence of ten years imprisonment, or 1,000 penalty units or both. The facts underlying your offending are contained in a prosecution summary, which is annexed to these sentencing remarks. However, in very brief terms, on 7 January at around 7.30 in the evening, the Indonesian fishing vessel of which you were both crew was boarded by navy officers, after distress flares were launched from the boat which is now known as Siev 227. You, Mr Abang, were then believed to be the master as you were in the wheelhouse steering the vessel.
2 The boat was seen to be in poor condition, taking on water. It had been estimated that it could have sunk within four to six hours without intervention. 76 passengers, including five children from Iran, Iraq, Turkey, Afghanistan, Kuwait and Pakistan were located, most of them suffering sea sickness and dehydration, burns from exposed exhaust pipes and a pregnant woman was vomiting blood. The 76 passengers were non-citizens and none of them had applied for or held a valid visa allowing them to travel, enter or stay in Australia.
3 Statements from passengers identified you, Mr Abang, as the captain who did most of the steering. Two days before interception, three of the five crew transferred to another boat taking the GPS with them, and two new crew members later found to be juveniles joined the boat. It is accepted that you assumed the captain role in the latter stages of the journey. You Mr Ahmad were described as the mechanic who looked after the engine, and sometimes provided food for the passengers, occasionally in the last two days of the voyage taking over steering from Mr Abang when he was resting.
4 You, Mr Abang, navigated using a compass and observing the flight of birds, and both of you talked about going to Australia, in particular Ashmore Reef.
5 I now turn to your personal circumstances, beginning with you Mr Abang. You are 49 years old, and you live in a small village in Indonesia in a two room hut with your wife, your two youngest children; a girl and a boy, and your 92 year old blind mother. You have a married daughter who lives nearby, and another daughter who was at a government funded university.
6 Your wife suffers tuberculosis, and whilst in custody you have learned your married daughter has begun coughing up blood. Your life has been marked by poverty, you have a hand to mouth existence and are the only family member bringing in an income.
7 You work primarily as a fisherman, travelling the long distance from your home in the Alor Islands to Roti, where you obtain fishing work, averaging from your employment $1 to $2 income a day. When not fishing, you grow corn which you barter with local villagers.
8 You were recruited for this voyage in Roti. Your counsel told me you believed you were taking cargo to Australia and were taken by boat to Baya, where, whilst you were asleep, asylum seekers were boarded. You were to be paid the Australian equivalent of about $2360, which money was in fact paid to your wife. Your counsel said you felt obligated to continuing the voyage because the money had been paid once you became aware it involved people smuggling.
9 It was urged by the Crown not to accept your version of events, partly because in 2000 you were sentenced to a four year - term of imprisonment with a minimum of two for people smuggling in very similar circumstances.
10 In my view, it does not particularly matter whether you knew the cargo was human or otherwise, but I am satisfied you must have suspected whatever you were transporting was illegal because of the money you were paid and because it was agreed that you knew the destination was Australia.
11 I note from the sentencing remarks by Martin CJ of the Northern Territory Supreme Court in 2000 that you offended on that occasion as a deckhand because you owed your boss 500,000 rupiah. This is your only prior conviction. That offending took place 12 years before the matter before this court.
12 You have remained in custody since January 7, 2011. I am satisfied that that period of time has been difficult for you given your isolation from the family for whom you are responsible, the fact that it has been detention in a foreign land where you do not speak the language, and during which you have had very brief telephone contact with your family on about a fortnightly basis.
13 Having been provided with an abundance of persuasive authority including judgments from the Western Australian, Northern Territory, New South Wales and Queensland Court of Criminal Appeals, I am satisfied that I should sentence you to a term of imprisonment.
14 It was submitted by the prosecution that because of your prior conviction, I should sentence you to a term which involves you serving about another three months in gaol, or sorry, in detention.
15 You have entered a plea of guilty at an early stage and I am satisfied that apart from your previous conviction, you are a man who has worked hard for little return, supporting a large number of people who are highly dependent upon you, including your elderly mother, your sick wife and you have suffered the further anxiety of being given information that would indicate your eldest daughter has contracted tuberculosis. I am satisfied that your re-offending was brought about by the dire poverty in which you live.
16 In the circumstances, I am prepared to accept the prosecution's submission that I should impose a head sentence of about three years' imprisonment, but because of the mitigatory factors I have referred to, I am going to order a minimum term of 619 days so that you can be returned to your family as soon as possible.
17 I, therefore, sentence you to a term of three years' imprisonment. This is where the maths comes in, I am afraid. 619 days. So that - - -
18 MS BRECKWEG: We'll do the figures as well, Your Honour.
19 HER HONOUR: So it is 88 weeks and three days. So that is 22 months and three days, I think. 619 divided by seven is 88 and four into that is 22. Is that about right?
20 MS BRECKWEG: Yes, Your Honour, we're just doing our calculations now.
21 HER HONOUR: All right. I will put that in the proper terms - - -
22 MS BRECKWEG: Yes, we'll work it out as you continue.
23 HER HONOUR: - - - after I have sentenced Mr Ahmad.
24 MS BRECKWEG: Yes, Your Honour.
25 HER HONOUR: I now turn to you, Mr Ahmad. You are a 29 year old single man, the only son of your parents. You are subsistence share farmers living outside a small village called Desa Batu on the Alor Island chain. They grow corn and sweet potatoes, and your mother is in very poor health.
26 You left school at the age of 12 and over the years became your family's primary support. You began by helping your parents inplantation farming and undertook some sampan fishing, the catch being bartered for other goods.
27 At age 13 you travelled on your own to Roti to find work as a deckhand there, eventually being employed as a mechanic/cook/diver on a fleet of boats harvesting sea cucumber. You worked in Roti for two to three month stints, returning in the meantime to live and work with your family.
28 You earned about $30 Australian per three months worth of work on the boats, and each time you travelled to Roti had to raise the fare of about $100,000 rupiah, often by way of a loan which carried an interest payment.
29 At the time of your offending your mother needed eye surgery, and this was well-known in your village and where you were recruited at the Port of Koelbea. You were offered about $350 Australian to work as a mechanic on a boat. You contacted your parents, who blessed you for being able to obtain this work.
30 As your counsel said, most of the crew was smart enough to leave the boat before interception, and I accept you were exploited by those organising this people smuggling enterprise as utterly expendable.
31 You, too, have remained in custody since January 7, and your contact with your family has been distressing. The promised money was never paid and your parents had to take out a loan to pay for two operations on which interest has accrued and for which you will assume responsibility on your return. Fortunately you have worked in gaol and saved those wages, so you will return with an amount of money that should assist in the situation.
32 You, too, entered an early plea of guilty to the alternate Charge 233A and you have no prior convictions. You, too, offended in the context of poverty and need and pressure from your mother's medical requirements.
33 Again, this was a situation where it was submitted you were unaware of the true purpose of the voyage until the asylum seekers were ferried to the boat. Again, in my view, the amount of money and the destination it involved must have aroused some suspicion that the activity was illegal.
34 I accept also that you have suffered in custody worrying about your parents, and particularly your mother, isolated from family and friends, with little English, and that your role in the operation was also very much at the lower end of the scale.
35 I am satisfied, having regard to the relevant authorities, that I should sentence you to a term of imprisonment, but because of the mitigatory factors I have outlined, that is, your early plea of guilty, your otherwise good character, your limited role, your difficulty in gaol, the very difficult circumstances underlying your offending, I propose to sentence you to a head term of 619 days. I order that you serve a minimum term of ten months.
36 All right. Now I turn to you, Ms Breckweg, as the great expert.
37
MS BRECKWEG: I'm not sure about that, Your Honour. In terms of
Mr Abang, the Crown's calculations come to one year eight months and
11 days. For the purposes of the sentence it is probably easier to say
20 months and 11 days.
38 HER HONOUR: It's 20 months?
39 MS BRECKWEG: 20 months and 11 days. And my learned friends are nodding, which is good.
40 HER HONOUR: That is 20 months and 11 days. Yes.
41 MS BRECKWEG: And a bond form is being prepared now, Your Honour. We need to have a recognisance amount.
42 HER HONOUR: $500.
43 MS BRECKWEG: $500, yes.
44 HER HONOUR: All right. So how do I - so with Mr Abang - - -
45 MS BRECKWEG: Yes, it will be, "I sentence you to three years' imprisonment."
46 HER HONOUR: I sentence you to three years' imprisonment.
47 MS BRECKWEG: "I order that you be released" - - -
48 HER HONOUR: I order you be released - - -
49 MS BRECKWEG: "After serving 20 months and 11 days."
50 HER HONOUR: - - - after serving 20 months and 11 days - - -
51 MS BRECKWEG: "By giving recognisance."
52 HER HONOUR: - - - by giving recognisance in the sum of $500 - - -
53 MS BRECKWEG: "To be of good behaviour"
54 HER HONOUR: - - - to be of good behaviour - - -
55 MS BRECKWEG: For whichever period Your Honour - - -
56 HER HONOUR: Good behaviour for 16 months.
57 MS BRECKWEG: "For 16 months pursuant to" - - -
58 HER HONOUR: Is it 16 months? That's right. Yes.
59 MS BRECKWEG: Yes. "Pursuant to s.20(1)(b) of the Crimes Act 1914 (Commonwealth)". And then Your Honour needs to declare 20 months and 11 days as time reckoned as served under the sentence.
60 HER HONOUR: All right. So, pursuant to s.20(1)(b) of the Commonwealth Crimes Act 1914, I declare that 20 months and 11 days of this sentence has already been served by way of pre-sentence detention.
61 MS BRECKWEG: Yes.
62 HER HONOUR: Mr Abang, you do not have to pay the $500 unless in the next 16 months you commit another offence punishable by imprisonment under Australian law. So be careful of your cargo. All right?
63 Mr Ahmad, I sentence you to a term of 20 months and 11 days' imprisonment. I order that you be released after serving ten months by giving a recognisance in the sum of $500 to be of good behaviour for a period of ten months. I declare that 619 days of the sentence has, pursuant to s.20(1)(b) of the Commonwealth Crimes Act - - -
64 MS BRECKWEG: Section 16E for the time served, Your Honour. Sorry.
65 HER HONOUR: Pursuant to s.16E of the Commonwealth Crimes Act 1914, I declare you have served 619 days of this sentence by way of pre-sentence detention.
66 That means, gentlemen, you will both be released and returned home. All right?
67 We have to print out some forms for you to sign. All right. They are being filled out. There's no need for you two to look at me in that way. That's the Commonwealth - - -
68 MS BRECKWEG We'll do it for you.
69 PRISONER: Thank you.
70 HER HONOUR: Good. All right. Now can I ask, is it possible for your clients to sign these recognisances?
71 MR HALPIN: Yes, Your Honour.
72 MR DEMPSEY: Yes, Your Honour.
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