Director of Public Prosecutions v Eik & Kol

[2012] VCC 1469

IN THE COUNTY COURT OF VICTORIA Revised

AT MELBOURNE

CRIMINAL DIVISION

CR-11-01552
CR-12-00160

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAWAL EIK
DUI KOL

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 September 2012
CASE MAY BE CITED AS:	DPP v Eik & Kol
MEDIUM NEUTRAL CITATION:	[2019] VCC 1469

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms K. Breckweg
For Accused Eik For Accused Kol	Ms P. Murphy

HER HONOUR:

1       Dui Kol and Sawal Eik, you have each pleaded guilty to one charge of people smuggling contrary to Section 233A of the Commonwealth Migration Act [1958].  The facts underlying your offending are as follows.  The two of you were crewing on an Indonesian vessel later known as SIEV225, which was boarded by officers from the Royal Australian Navy about eight nautical miles northeast of Ashmore Islands at about quarter to 1 in the morning of 25 December 2010.

2       You, Mr Kol, were discovered by navy officers sitting at the helm and you acknowledged that you were the master and indicated there were two other crew of which you, Mr Eik, were one.  The boat was carrying 57 asylum seekers, including men, women and children from Iran, Iraq, Pakistan and Afghanistan. 

3       The third crew member was a juvenile and returned to Indonesia.

4       New and sufficient lifejackets were seen on the boat.  There were boxes of water and biscuits and plenty of fuel.  After the boat was boarded it was then directed to follow the Navy vessel but seawater began leaking into the engine area.  All passengers were evacuated and the boat was destroyed. Passengers and crew were taken to Christmas Island and the two of you have remained in detention or in custody ever since. 

5       You, Mr Kol, were described by passengers who gave statements to Federal police as Captain Number Two, after the first captain left the boat a couple of days before the interception.  You, Mr Eik, were described as a crew support or servant who essentially attended to the engine.

6       There was a GPS, handheld, which was located on the boat.  Your counsel, Mr Kol, informed me that this was provided by Captain Number One, who in fact recruited you on the voyage, a man by the name of Roy.  You had never seen such an instrument before and protested when Roy tried to take it off the boat when he left.  Roy, it appears, reluctantly allowed you to keep it.

7       I now turn to your personal circumstances.  I note that neither of you have any prior convictions.  You, Mr Kol, are 39 years old and were born in a village in North Buton, on the island South East Sulawesi, one of Indonesia's archipelago of islands.  Your parents were fisher folk who are still alive.  You have older brothers and sisters and are married with children and who, as far as you knew when you left on this voyage, still lived near your parents in the village where you were born.  You left school at the age of 15 and then travelled to the island of Kupang in West Timor where you worked as a fishermen and married somewhere around 2003 to 2005.  You met your wife in a café in Kupang.

8       You have two children aged 5 and 3.  Your wife and you and your children live in a single room in a small block of flats with a concrete floor and walls with no running water or electricity.  You share a communal bathroom with five other families and there is a well attached to the building where you live.  I am satisfied you came from a position of poverty, making $1 to $2 a day when you could get work.  At the time you were recruited by Roy for this trip your wife was pregnant.  You discovered soon after your apprehension that the baby had been born but died after only two days.  

9       You were offered the equivalent of $50 Australian to undertake a voyage which was described to you as a picnic, where you were taking passengers to Ashmore Reef.  You met Roy on a boat in the harbour where you got work.  Roy bought fish from you, told you he came from Rote Island and said he would employ you for a month where, as I have said, he told you you were going to be taking passengers for a picnic to Ashmore Reef. 

10      A map was tendered which showed the trip you then undertook being taken from Kupang north to Makassar where you stayed for three nights, then across northeast to Kendari, where the passengers came on board.  The boat then travelled south, eventually arriving back in Kupang and proceeding out to Ashmore Reef.  It is quite clear that the distance from Kupang to Ashmore Reef is only a fraction of the distance covered by you in the journey to Makassar, Kendari and then back to Kupang again.

11      Your instructions to your counsel were that you did not realise that this journey involved any more than Roy had told you it did until he got off the boat and left you in the position you were in until the Navy intercepted it.  It was submitted that you had a viable defence to the charge.  I agree with this but I accept your plea on the basis that at some late stage in this journey you became aware that this was not a picnic but an enterprise involving the smuggling of asylum seekers to Australia, which up until then you believing that Ashmore Reef was in fact a part of Indonesia.  I note at this stage that the same explanation for the journey was given to Mr Eik.  I accept that both of you proceeded on the journey in the first instance on that basis, that is, you started out believing that was the purpose of the trip, that is, a picnic to Ashmore Reef and I accept that, given your backgrounds, lack of general experience beyond the areas where you have grown up and have lived, you would not have had the capacity to realise the more suspicious circumstances surrounding this trip that others may have.  I also accept that Mr Eik had a viable defence in this regard and I regard the pleas of guilty which, it is conceded, were made at a very early stage once the charge of Section 233A was laid in substitution for the original charge against Section 233C of the Migration Act as a significant mitigating factor.

12      Your counsel informed me that the incentive for you undertaking the journey was the imminent arrival of a third child, you were in debt for money you paid for food.  I accept that your time in gaol has been extremely difficult, isolating and distressing, knowing as you have that your wife has had to cope without you.  She is located far from your family and it has come to your attention that your family have in fact moved elsewhere and you no longer know where they live.  You have had difficulty with food and had to spend much of the money you have earned working in the gaol on extra rice as well as phone calls home. 

13      You, Mr Eik, are 33 years old, born in a large village called Akle on Semau Island, which is between Rote and Kupang.  You lived in a village subdivision of about 40 families and you have lived there all your life.  There is no electricity in your part of the village and you get water from a well.  You live in a one room house with a thatched roof and are married with three children.  You are one of nine children born to your parents.  You left school when you were 13 and worked as a fisherman until you married.  Thereafter and until the time you departed on this voyage you worked harvesting seaweed.  Your children are aged 14, 12 and 8.  You were also recruited by Roy, who came to your village, told you he would hire you for $50 Australian, which I accept for both you and Mr Kol represented a fortune, to work for a month as crew on a boat trip which involved taking passengers on a picnic to Ashmore Reef.  Again, I accept that you undertook that employment unaware that it involved smuggling asylum seekers to Australia until Roy left the boat two days before the Navy intercepted the vessel.  Again, you are a person who lives at a subsistence level, that is, that you make very little money and that it was poverty and the need to support your family that lay behind your decision to accept Roy's offer of employment. 

14      Both of you were exploited by Roy who left you to be apprehended by Australian authorities and you have paid a heavy price indeed, being incarcerated in the meantime.  Counsel made a fair point when she said that those asylum seekers on the boat achieved for the most part their aim of being accepted to live in Australia.  In each case the moneys promised by Roy were paid to your families but the price you paid, as I said, living in gaol, remaining in gaol for that period of time, has been very heavy.

15      I accept that both of you are men of good character who are unlikely to offend again and whose lives have been spent as responsible husbands and fathers, working very hard for little pay to support your families.  I accept that the period of time you have spent in gaol has been harder for you than it would have been for other prisoners because of the matters I have mentioned and this is a matter I take into account in sentencing you.  Although Mr Kol was taking the role of helmsman, or to steer the boat, this is not necessarily something he was particularly trained to do and he was offered and received the same amount of money as you, Mr Eik, who played a less specialised role.  I am also satisfied that Roy was captain Number 1, if you like, who primarily carried out that role until he left the boat and left you two to your fate.

16      It is quite clear to me from the authorities of the Court of Appeal in Western Australia, Northern Territory, Queensland and New South Wales that general deterrence is a large issue in sentencing in cases such as this, that is, I must sentence in a way which sends a severe message to other people that they should not act as you did.  In my view, the fact that I must, according to those cases, sentence you a term of imprisonment to be immediately served, given that the maximum term is only 10 years, I say only by comparison with other maximums available under the Crimes Act, it does seem to me given the type of people I accept you are that simply gaoling you is to have very significant regard to that principle. 

17      It was submitted to me that I should sentence each of you to a term of imprisonment carrying a head sentence of between two and three years and a minimum term of one to two years.  In my view, however, the fact that you have pleaded guilty at such an early stage, are men of good character, became aware of the purpose of the journey only at a late stage, have suffered very greatly in gaol in the intervening period, are persons who are unlikely to offend again and were persons who were so exploited by others much further up the organisational chain than you means that in my view a lesser sentence is warranted.  I therefore sentence each of you as follows.

18      You are each sentenced to one year and eight months in prison and I order that you each serve a minimum term of 10 months.  I direct that 634 days of this term have already been served by way of pre-sentence detention, which means you have already served the sentence I just imposed and should be released and returned to Indonesia very soon.

19      I have to sentence each of you using formal language so I am ordering that you be released after 10 months on you entering into a recognisance or promise to be of good behaviour for a period of 12 months, with a recognisance of $500.  You do not have to pay that $500 unless you get into trouble in the next 12 months.  Do you understand that?  Thank you.

20      I note that each of you have worked whilst in custody and are each taking home about $500 which will no doubt be extremely helpful to you once you return home but does not, I recognise, make up for the suffering you have undergone or the separation from your families.  Do you each agree to make this promise to be of good behaviour?

21      PRISONERS (through interpreter):  Yes.

22      HER HONOUR:  Thank you.  Have a seat, we will prepare some documents for you to sign. 

23      Are your clients able to sign their names?

24      COUNSEL:  Yes.

25      HER HONOUR:  Perhaps if I could get you to accompany my associate down to the dock just to assist them with the process, all right?

26      COUNSEL:  Yes, Your Honour.

27      HER HONOUR:  Thank you. - - -