Director of Public Prosecutions v Fajar & Ovank
[2012] VCC 1439
•20 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-02386
CR-11-02387
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| FAJAR FAJAR SUPARMAN OVANK |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 20 September 2012 | |
CASE MAY BE CITED AS: | DPP v. Fajar & Ovank. | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1439 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms E. Ticky | |
| For Accused Fajar For Accused Ovank | Mr A. Furstenberg Mr M. Dempsey |
HER HONOUR:
1 Suparman Ovank and Fajar Fajar, you have each pleaded guilty before me to one charge of people smuggling contrary to s.233A of the Migration Act 1958.
2 The facts underlying your offending are as follows:
3 On 4 January 2001 the Indonesian fishing vessel on which you were both crew members was intercepted by the Australian Navy 23 nautical miles west of Ashmore Island, within the Australian contiguous zone. You were both found to be in the wheel house at the time of boarding. The boat and passengers, which comprised 90 people including 22 children, originally from Iraq or Iran, were taken to Christmas Island. None of them had valid visas authorising travel, entry or stay in Australia.
4 Statements from four passengers to Australian Federal Police revealed that there were originally two support boats with two Indonesian men on each which followed the main vessel known as SIEV 226, supplying fuel and provisions until the day before interception. One of the Indonesian crew on SIEV226 left that vessel the day before interception, leaving the two of you as the only crew members. You, Mr Ovank, were seen distributing food and water, taking turns with Mr Fajar to steer the vessel using a GPS, a compass and satellite phone. You, Mr Ovank, apparently did most of the steering but were not necessarily in charge. Mr Ovank, you were seen by passengers throwing the GPS and satellite phone into the water before interception.
5 Neither of you has any prior convictions.
6 I now turn to your personal circumstances, beginning with you, Mr Ovank.
7 You are 27 years old, single, and you live with your parents, two brothers and two sisters. Your father, who was always a fisherman, cannot work much now because he has arthritis and your mother has been sick with tuberculosis for about 16 years, since your youngest sibling was born.
8 One of your sisters is married with two children and lives close by in the village in Lombok, where you have lived all your life. Her husband fishes when he can. Another brother is married with a child and lives at home and is also a fisherman. Your 23 year old sister works as a domestic help in Malaysia and gives some money to the family and your 16 year old brother is at school.
9 You live in a small village where generally people are poor. Your family house has one room and people sleep on mats at night. The electricity you have is borrowed from a neighbour via an extension lead. There is no running water, and you buy water by the bucket.
10 You left school at 12 to wash cars at a nearby bus terminal and by the age of 13 were crewing boats and this has been your occupation ever since. You have an irregular income, depending on the catch, making, as I understand it on a good day, between ten and 20,000 rupiah, the equivalent of one or two Australian dollars.
11 Around the time that you were approached to join this voyage it was known in the village that your mother was the sickest she had ever been and that the family needed money. You were asked by another villager if you wanted to take passengers to the island Pasar Pasir, Indonesian for Ashmore Reef. You knew this island was not in Indonesia but did not know the consequences, and I accept this is the case, of you joining this voyage. You were to be paid 500,000 rupiah, the equivalent of $50 for the trip, which I accept was a great deal of money and it was paid to your family.
12 Your counsel told me that one of the GPS instruments on the voyage did not work and you threw the other GPS away because it became such a focus for passengers who were making demands about the information it was relaying that in frustration you threw it overboard. It is quite clear that you were a poverty-stricken man in difficult circumstances in relation to your mother's illness that the offer was made at a time when you were particularly vulnerable and I accept you had little real knowledge about the illegality and criminality relating to the voyage you undertook.
13 You have had a very difficult time in custody, like other Indonesian crew members on similar boats. You speak no English. You have never been away very far from your home. You have spent time in custody in an isolated situation with limited phone contact to your family, and whilst you have been in gaol, although you have worked, much of the money you have earned has gone on paying for the extra rice you require in your diet and paying for expensive phone calls home. You will take some money that you have saved back to Indonesia with you.
14 I now turn to you, Mr Fajar.
15 You are 30 years old. You are a single man, the eldest of six children. One sibling has died and you are the eldest of your siblings by seven years.
16 Your counsel told me your whole life is bound up with your family. You have assumed particular responsibility for the family's finances and wellbeing as the eldest and your counsel said you were a bit of a loner who did not socialise a great deal and who had never been far from the fishing village off the coast of Java. The furthest you have been, for example, is a bus trip to the local swimming pool.
17 You have never been to school. You have only ever worked as a fisherman, crewing on other boats, earning on average between two to five Australian dollars on a trip, sometimes earning nothing again because payment was based on the catch.
18 You live in a very small village. Your parents own their home but there is no running water or electricity. Very tragically for you, your father, a fisherman, died early this year whilst you were in gaol and this has been a matter of enormous grief for you. Your mother has apparently become unwell and is coughing up blood, possibly has contracted tuberculosis and was recently hospitalised.
19 Again you were approached to become involved in this voyage, being offered a million rupiah, about $100 Australian, which was a fortune to you. You accepted it without knowing the consequences to you, the illegality and criminality of what you were doing. The moneys were paid to you before you left and you gave then to your mother. I was informed, and I accept, that you did not properly realise what the trip entailed until the passengers were brought onto the boat at night, by which time you felt obligated to continue on the voyage.
20 I accept that you and Mr Ovank were regarded as expendable by the people smugglers further up the chain, who made the most profit out of this enterprise. I also accept that your time in custody has been particularly hard, that life there has come as a complete shock to you given the life that you had led in Indonesia and that you have had to endure the terrible grief of losing your father whilst you were away and the distressing calls with your mother about her continuing ill health.
21 Your counsel informed me that in particular your mother says to you that she cannot recover until you are home with her and I accept that you see yourself as a person very much responsible for your mother and siblings and that not being available to assist your family has been a particularly difficult matter for you to deal with in custody.
22 Again, you have been working whilst in gaol and have saved up money to take home, but have also had to spend money for extra rice and telephone contact with your mother.
23 I am satisfied that both of you, Mr Ovank and Mr Fajar, have had far more difficulty with custody than would have been the case for the ordinary prisoner and that your punishment to date has been much in excess of the criminality and illegality surrounding your involvement in this people smuggling exercise. I also accept that each of you was motivated by the extreme poverty in which you live and the responsibility you have for other family members.
24 As I have said in other similar cases, it is my view that I must take heed of sentencing by the Courts of Criminal Appeal in other States such as Western Australia, Queensland, the Northern Territory and New South Wales and that I am obliged to deal with you by sentencing a term of imprisonment. However, as I said at the outset, the sentence I will impose will be of a length covering only the period of time you have already spent in custody, so you will not have to serve any more time in gaol.
25 Could you stand up please.
26 Now have we worked out - - -
27 MS TICKY: I have, and I think that includes today. I have one year eight months and 17 days. I'm just wondering if no-one else disagrees with that. Thank you.
28 HER HONOUR: You do, thank you.
29 On the charge of people smuggling I sentence each of you to one year eight months and 17 days' imprisonment. I order that you be released after eight months upon you entering into recognisance, that is making a promise to be of good behaviour for one year and that there be a recognisance in the sum of $500. It is important to understand that you will not have to pay the $500 unless you get into trouble with Australian law in the next 12 months.
30 In sentencing you I take into account your early pleas of guilty, your previous good histories, the fact that I find you have excellent prospects of rehabilitation, that you played a lowly role in the people smuggling operation, were as vulnerable as the passengers on the boat and were, in my view, exploited by the organisers. Further, I am satisfied, as I have said, you have each suffered greatly in custody .
31 Are you prepared to make that promise to the court to be of good behaviour?
32 ACCUSED (Through Interpreter): Yes.
33 HER HONOUR: Thank you. Have a seat while we prepare a document for you to sign. Mr Furstenberg and Mr Dempsey, what I'll get you to do once the form has been filled out is to go down the back with your clients to assist them in signing.
34 COUNSEL: As Your Honour please.
35 HER HONOUR: Thank you very much. I declare that one year eight months and 17 days of each sentence have already been served by way of pre-sentence detention.
(Document signed and acknowledged)
36 HER HONOUR: Thank you very much.
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