Director of Public Prosecutions v Bifel, Dion

[2012] VCC 1684

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IN THE COUNTY COURT OF VICTORIA Revised

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-12-01887

DIRECTOR OF PUBLIC PROSECUTIONS

v

DION BIFEL

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	31 October 2012
CASE MAY BE CITED AS:	DPP v Bifel, Dion
MEDIUM NEUTRAL CITATION:	[2012] VCC 1684

REASONS FOR SENTENCE
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Sentence:                

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms K. Breckweg
For the Accused	Mr M. Phillips

HER HONOUR:

1 Dion Bifel, you have pleaded guilty before me to one charge of people smuggling, contrary to s.233A of the Migration Act 1958. The maximum sentence for this crime is ten years' imprisonment or 1000 penalty units.

2       The facts underlying your offending are as follows:

3       The boat on which you were a crew was apprehended by an Australian Customs vessel on 18 October 2011 after being detected by a Border Protection Command aircraft the day before.  It was apprehended approximately 85 nautical miles south-west of the Ashmore Islands, which was six nautical miles outside the Australian contiguous zone.

4       Customs and Border Protection officers boarded the vessel, which was a wooden vessel about 20 metres long, and there found 55 passengers of Iraqi and Iranian origin together with four male Indonesian crew members of which you were one.  The passengers included men, women and children including babies.  All 51 passengers were non-citizens and none of them had applied for or held a valid visa authorising them to travel to, enter or stay in Australia before or on 22 October 2011.  All passengers and crew were taken into custody on the Customs and Border Control vessel and transported to Christmas Island, where they arrived on 22 October 2011.

5       Statements from passengers on the boat said the vessel was wooden and old, some saying it was in poor condition without fishing gear, only one passenger mentioning there were life jackets, most passengers stating there was limited food and insufficient water.  Importantly, the information given by the passengers was that there were initially seven or eight Indonesian male crew members aboard this boat, which had left Indonesia in the early hours of one morning whilst it was still dark, that shortly before leaving Indonesian waters, which was about four to six days into the journey, another vessel rendezvoused with the suspected irregular entry vessel of which you were the crew, and three or four of those crew members then disembarked and left.  The four remaining crew members were described by passengers as performing various roles, one of them in particular a man named Wanase taking the role of captain once other crew members had disembarked and he was predominantly responsible for steering the boat and using the compass.  You were identified as one of the four crew members who was responsible for refuelling engines, assisting with cooking and observed by one passenger giving water to people.  The other two Indonesian crew members were described as performing general duties.  The journey from Indonesia to Ashmore Island took about six days.

6       I now turn to your personal circumstances. 

7       You are 26 years old and have no prior convictions.  You grew up in West Timor.  You were the third of four children, the only son born to your parents.  You described your family life as a child as simple but happy, your parents growing crops of corn and rice on plots of land and you living in a house where the walls were made of matting and the floor was partly cemented and partly earth.  You received about two years of schooling at an age you cannot recall, but have told your counsel you can read and write "not bad." 

8       Up until 2004 you lived in West Timor assisting your parents with the farming of the plots of land and then in 2004 moved to Kupung, a fishing port where many other persons, in the experience of this court, have been recruited in order to become crew members of vessels engaged in people smuggling to Australia. 

9       You went there at the invitation of your uncle, who apparently runs a hardware business and you had a job after your arrival there, which you apparently held up until the time you joined the crew on this voyage, in deliveries.  You lived with your uncle, made several thousand - hundred thousand rupiah a month and sent the equivalent of about $A30 a month back to your parents.  Your sisters have married and left home.  Two of them also live in Kupung and one lives in Jakarta.

10      

You were approached in Kupung by the captain of the vessel, that is,

Mr Wanase, who became the captain after other crew members apparently further up in the people smuggling chain left the vessel.  Mr Wanase was described by you as an uncle, which I accept is a term used by you as describing someone who was a family friend.  It was he who recruited you on this voyage.  Apparently you were taken on a smaller boat out to the larger vessel which ultimately made the trip to Ashmore Island under the cover of night.  It was then you discovered that what you had been told was to be a short sea trip a trip to Australia on with passengers hoping to effect illegal entry into Australia onboard. 

11      I accept, and it does not seem to be disputed by the prosecution, that your knowledge about this trip and what it entailed essentially came about once you actually boarded the vessel.

12      You had been promised a million rupia, or the equivalent of $A100, as payment for the trip, which I accept was a very large amount of money for you, and your counsel also made the point, which is one that I accept, that the fact that the offer came from a close family friend was a factor which had some influence in the decision that you ultimately made.

13      Prior to going onto the vessel as crew, you had had no fishing or boating experience generally and were taken on primarily as a cook.  Your counsel informed me that you found the journey frightening, it apparently took longer than it was meant to, large seas were encountered, you were often frightened and along with some of the passengers you suffered from seasickness.

14      When the boat was intercepted by Australian Customs and Border Control personnel, you were afraid you were going to be beaten, but of course this was not the case, and overall I accept that your role on the voyage was a minor one and that, like so many of the boat crew members that have come before this court, those who have profited far more from the enterprise have left the scene prior to interception and that essentially persons like yourself were regarded by the organisers as expendable.

15      I am perfectly satisfied that such people are aware that on interception they will be held in detention and that serious penalties apply in Australia for the activities they engage in.  It is therefore important that they are able to recruit crew members like yourself who are persons coming from fairly simple, hardworking lives to whom the amounts of money offered are highly attractive, who have little knowledge of what lies ahead of them., have very little sophistication and would be almost entirely unaware of the consequences of the role they have taken in crewing such vessels. 

16      Counsel informed me that your observation of those crew members who did leave the vessel before interception were that they were the ones who were directing people and passengers and crew, and indeed it was the observation of passengers on this vessel that Mr Wanase essentially became the captain once other crew members had left. 

17      You have remained in custody since 22 October 2011, but on bail, which has meant that you have been held in Immigration Detention Centres in Darwin for most of the time leading up to this hearing.  That has meant that unlike other crew members that had been dealt with by this court, you have not suffered the sorts of deprivations they had, many of them being held in prisons in Melbourne where they endured far greater restrictions than you, endured cold, dietary problems, isolation from other Indonesian speaking persons, and extremely limited contact with their families.  I am not suggesting for one moment that your time in detention has been easy, but it has certainly not been as difficult as the situations endured by other persons involved in the same  people smuggling activities as you.  You have been able to have reasonable contact with your family via email contact with one of your sisters and you have had the company of other Indonesian men apprehended on vessels such as yours and performing similar roles as crew members to yours.

18      I note that Mr Wanase was apparently able to convince the authorities that he was a juvenile, and was returned to Indonesia.  It is certainly your firm instructions that he is in fact older than you, and also the other crew members who were apprehended were returned to Indonesia either as juveniles or because the matter was discontinued, and I accept it has been a matter of some frustration for you that you are the only member of the entire boat crew to have been prosecuted and detained in the way that you have been.  Nevertheless, that is the way of the world, Mr Bifel, and I certainly am satisfied when your counsel says to me that this entire experience has been a salutary one and that you have no intention of repeating the experience.

19      Also, unlike many other Indonesian crew members of boats such as this, your family was ultimately paid the money that was promised.  You yourself, although obviously not earning enormous amounts of money, were gainfully employed at the time, and whilst you were sending money to your parents, were not in the dire financial straits that many other persons charged with the same offence as you and who have appeared before this court were in.    Nevertheless, I do accept that you were exploited, that you were precisely the sort of unsophisticated man commonly approached by organisers as such journeys, albeit that the approach was made through your friend Mr Wanase, and I accept that the consequences for you have been significant. 

20      It is quite clear from decisions handed down by the Courts of Appeal in Western Australia, South Australia, Queensland and the Australian Capital Territory that the issue of general deterrence, that is, sentencing in a way which sends out a message which is likely to deter others from undertaking similar activity is a significant issue for the courts in cases of this kind.  It was submitted to me that in this respect I should deal with you by way of a sentence of imprisonment, and I propose to do this.  However, it will not be a sentence of imprisonment which requires you to remain in detention any longer. 

21 In sentencing you, I take into account the fact that originally you were charged under s.233C of the Migration Act, a more serious charge which involves a mandatory sentence to which you understandably pleaded not guilty, and that once an offer was made of a charge under s.233A, where a mandatory sentence is not required, you immediately responded with a plea of guilty.

22      In sentencing you, I also take into account your lack of prior criminal convictions, and I accept that you are ordinarily a hardworking and conscientious young man who remains concerned about his inability to support his parents who no longer have their children to assist them in the farming activities as they grow older, and I am satisfied you are most unlikely to re-offend.  I understand it is your intention to return to Kupung to live with your uncle and take up your previous job, and I hope this is possible. 

23      I, therefore, sentence you as follows:

24      On the charge of people smuggling, you are sentenced to 18 months' imprisonment, and I order that you serve one year and 12 days of that sentence.  The way I must phrase it is this.  That you are - how do I do it again?

25      MS BRECKWEG:  Convicted and sentenced to 18 months' imprisonment, ordered to be released after serving one year and 12 days of the sentence, on giving recognisance in the sum of - - -

26      HER HONOUR:  Yes, that's right.  I keep forgetting whether I have to, you know, work out dates.  Thank God I don't have to.  All right, thank you.

27      You are sentenced to 18 months' imprisonment, and I order that you serve one year and 12 - that you be released after serving one year and 12 days of that sentence on you entering into a recognisance in the sum of $500 to be of good behaviour for a period of two years. 

28      MS BRECKWEG:  Thank you, Your Honour.  The declaration as of time served.

29      HER HONOUR:  I will do that in a moment.

30      I declare that one year and 12 days of this sentence has already been served by way of pre-sentence detention.  What that means is, I am saying that you can be released after serving one year and 12 days, which I am saying you have already done, because this is how long you have spent in detention, and you can do this if you promise to be of good behaviour for two years, and I am saying that this is in the sum of $500, but you only have to pay that $500 if you commit an offence in the next two years, otherwise you do not have to pay it.  All right?

31      So if you were to do this again, that is, be on a boat crew for people smugglers again, in the next two years, you would have to pay the $500 as well as getting another sentence for doing it again, plus you would have to serve an extra five or six months, which is the rest of this sentence, which I am saying you do not have to serve. 

32      So, do you understand that it is absolutely not a good idea to ever do this again?

33      PRISONER (through interpreter)  Yes.

34      HER HONOUR:  All right.  Are you prepared to sign the promise to be of good behaviour?

35      PRISONER (through interpreter):  Yes.

36      HER HONOUR:  Do you understand the sentence that I have just explained to you?

37      PRISONER (through interpreter):  Yes.

38      HER HONOUR:  All right.  Thank you very much.  Yes.

39      MS BRECKWEG:  Thank you.  The bond form is completed for Your Honour's signature, if you're happy with that.

40      HER HONOUR:  Thank you very much.  Mr Philllips, does he need a hand signing?  Do you want to go down and join them?

41      MR PHILLIPS:  Yes, if my instructor - - -

42      HER HONOUR:  Yes, join them.

43      MR PHILLIPS:  My instructor can do that, Your Honour.

44      (Bond signed and acknowledged.)

45      HER HONOUR:  All right, thank you very much, that is it.  Thank you very much, Ms Breckweg.

46      MS BRECKWEG:  Thank you.

47      HER HONOUR:  Thank you, Mr Phillips. 

48      MR PHILLIPS:  If Your Honour pleases.

49      HER HONOUR:  Thank you everyone for their assistance today.

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