Director of Public Prosecutions v Auwi
[2012] VCC 1445
•21 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-01743
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LAODE AUWI |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 21 September 2012 | |
CASE MAY BE CITED AS: | DPP v Auwi | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1445 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K. Breckweg | |
| For the Accused | Mr M. Dempsey |
HER HONOUR:
1 Laode Auwi, you have pleaded guilty to one charge of people smuggling contrary to s.233(A) of the Migration Act 1958. The facts underlying your offending are as follows. The boat which you were steering came to ground on the Western Edge of the Ashmore Reef, and a Royal Navy vessel was deployed to assist. Your boat was subsequently designated Siev 269. People were found by the navy to be walking towards the outer edge of the reef in waist deep water. It was found that the engines essentially had broken down and were unserviceable. The boarding party ascertained that 15 male passengers originally from Burma had been on board the vessel and none of them held a visa to enter into or travel in Australia, or to stay in Australia.
2 Passengers were told Australian Federal Police that they were taken by a people smuggler to Sulawesi, where they travelled along a river before being taken by a small boat to Siev 269. You, Mr Auwi, were then brought on board and then introduced to the passengers as a person who would be taking them to Australia. You told them that this is what you were doing, as you were able to communicate with those passengers in Malay, which they spoke, and that they should not get angry with you if you got them lost. During the voyage, which was about seven days, some of the passengers assisted you in steering a boat when you got tired. You told one passenger that you needed to keep the needle on the compass between 18 and 17 to keep the boat on the right direction to Australia, and you told the passengers that you had driven in a fishing boat near to Australia before.
3 The boat stopped for repairs for a day at an unknown shore in Indonesia. The passengers collected money, which they gave to you to get supplies from a village and you returned with those supplies and one passenger helped fix the engine. Once the boat ran aground on the reef at Ashmore Island, passengers saw you crying and saying you were sorry and it was your responsibility to take them to Australia. There was plenty of food on the boat, although no life jackets. One passenger did however bring a life jacket with him. I now turn to your personal circumstances.
4 You believe you are 35 or 36 years of age and were born on a tiny island known as Pulau Maginty where you have lived most of your life, apart from a three years stint of working illegally in Malaysia as a builder's labourer. You are the eldest of three sons born to your parents, your father was a fisherman but had a gambling problem and your mother suffers from mental illness and your counsel informed me that she wanders the island and lives in a rough house that you and your brothers have built her. Your father died when you were about 18. You are married and have been for 20 years and have five children aged between two and something above ten years of age.
5 Neither you nor your brothers ever went to school. You have generally worked as a fisherman and I accept that you come from a background of deep poverty. You live in a three room hut. There is no electricity or running water. You were approached whilst on the island in the usual fashion by a people smuggler further up the organisational chain than you, and asked to take people to Australia for about 5,000,000 rupiah, or about $500 Australian. 4,500,000 rupiah was paid to your wife, but you took the remaining 500,000 rupiah with you for expenses on the journey. The money, which represents about $500, was a fortune for you. Tellingly, when the Australian navy vessel appeared, you told other passengers you were afraid it was an Indonesian vessel because therefore you would be in trouble.
6 It appears you had no knowledge that you would be detained as you have been for the past 11 months. You have suffered the usual difficulties in custody that other Indonesian crew apprehended in a similar fashion as you - that is social isolation, very little contact with your family, and continuing anxiety about their well-being given that you are the sole breadwinner. You have worked whilst in custody and hope to take home about $350 Australian with you. It was submitted that your role has been somewhat different to other cases of the kind that have come before this court, that it was a more important role because you were the only crew member and you were clearly the master of this vessel. It was however a very small vessel, and there were far less passengers on it than has been usual in cases of this kind. I accept that you are a very unsophisticated man who did not appreciate the culpability and criminality of what you were doing and that you were exploited by the people smugglers who hired you and then left you to your fate knowing that you would be intercepted and apprehended as you have been. That lack of sophistication has an important bearing in my view on the criminality of your actions insofar as your appreciation of the wrongness of what you were doing is concerned.
7 I accept it is a far different scenario where an educated person is asked to undertake this sort of enterprise for what would ordinarily be said to be suspiciously large amounts of money to one where in your case you have never been educated, you have always lived in poverty and life is a day to day struggle unknown to most Australians.
8 It was submitted that I should deal with you in a way which means you should spend more time in gaol. I am satisfied that you have good prospects of rehabilitation in that you have no prior convictions and have always been a man who has worked hard to support his family in very difficult conditions without resorting to criminal activity in the past. I expect that you did not expect to be detained and that this has been difficult for you, and that this experience will be a deterrent for you in the future. Indeed, many other judges who have dealt with similar matters have commented on the fact that once the consequences of undertaking the voyage in the way you did become known in a village, those smugglers move onto other impoverished and hopefully more ignorant communities for their recruitment purposes.
9 It would seem that your tiny village is unlikely to see much in the way of recruiting enterprises by people smugglers again as a result of your experience. I am satisfied that you are unlikely to behave in this manner again and that even though there has been financial gain for you, the experience of being in custody has been a more stressful and difficult one than for most other prisoners. In all the circumstances, I am satisfied that I can impose a sentence which incorporates the need to apply principles of general deterrence and which recognises the mitigating circumstances that I have outlined, including the fact that you have pleaded guilty to this charge at the earliest opportunity.
10 I therefore sentence you as follows. Could you stand up please? On the charge of people smuggling, you are sentenced to thee years imprisonment. I order that you be released after 11 months on you giving a promise to be of good behaviour for a period of two and a half years in the sum of $500. You will not have to pay that $500 unless you commit a criminal offence in the next two and a half years. So for example if you were tempted to bring asylum seekers to Australia again in the next two and a half years, on top of being detained further, you would have to pay a fine of $500. All right, do you understand that? Are you prepared to enter that agreement?
11 INTERPRETER: He asked me to repeat - - -
12 HER HONOUR: All right, that is fine. The main thing is that he does not have to pay the $500 unless he gets into trouble in the next two and a half years.
13 MS BRECKWEG: Your Honour, would you make the declaration of time served?
14 HER HONOUR: I am going to. I am just waiting - - -
15 MS BRECKWEG: Sorry, Your Honour.
16 HER HONOUR: I am just waiting for him to be - I know my Associate just also reminded me because the other day I had almost forgot to.
17 All right, I will start again. I am sentencing you to three years imprisonment. But I am ordering that you can be released after eleven months which covers the period of time that you have been in custody until now. But I am going to allow you to be released from gaol now. If you promise to be of good behaviour for the next two and a half years, and I am ordering that if you do get in trouble in the next two and a half years, an example of that being you making another trip like this to Australia with people illegally trying to come here, that you would have to pay $500 on top of any other punishment that the court might give. But that would only happen if you got in trouble again. So if you promise to be of good behaviour for the next two and a half years and you sign a document which makes that promise, then I will not order that you serve any more gaol. Are you prepared to make that promise?
18 PRISONER (Through Interpreter): Yes, Your Honour.
19 HER HONOUR: All right, we'll just get a form organised and get you to sign that document making that promise. Thank you, and I will get you Mr Dempsey to assist your client. Thank you.
20 MR DEMPSEY: Thank you, Your Honour.
21 HER HONOUR: Now to sign the forfeiture order. I should add that another mitigatory fact that I take into account is the fact that you have agreed to the forfeiture of the money found on you at the time you were apprehended? All right, thank you very much. Is that everything?
22 MS BRECKWEG: I'm sorry to be a nuisance Your Honour but the declaration of days.
23 HER HONOUR: Yes, thank God you did remind me.
24 MS BRECKWEG: Thank you.
25 HER HONOUR: I declare that eleven months of this sentence has been served by way of presentence detention.
26
MS BRECKWEG: Just a formality, Your Honour, it wouldn't have anything
but - - -
27 HER HONOUR: Not just a formality, it's absolutely crucial.
28 MS BRECKWEG: Actually, it's an important one.
29 HER HONOUR: I'm very grateful to you for reminding me.
30 MS BRECKWEG: Actually that was silly saying formality. It is more than a formality, yes.
31 HER HONOUR: Thank you. All right, thank you very much. We will stand down until 2.15, thank you very much.
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