Director of Public Prosecutions v Felani & Samad
[2012] VCC 1448
•21 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
CR-11-01297
CR-11-02147
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DODI FELANI AKBAR SAMAD |
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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. Felani & Samad | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1448 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K. Breckweg | |
| For Accused Felani For Accused Samad | Ms S. Westwood Ms M. Mykytowycz |
HER HONOUR:
1 Dodi Felani and Akbar Samad, 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. On 21 December 2010 an Indonesian vessel, later designated SIEV224, was detected about ten miles from Flying Fish Cove at Christmas Island inside the Australian territorial sea and intercepted by the Australia Navy. The two of you were found on the vessel and you, Mr Samad, identified yourself as the vessel master, saying the journey in the boat had begun about seven days before from the Port of Muntok. You pointed out a GPS to the naval officers.
3 The boat was carrying 68 asylum seekers, including 19 children, originally from Iran or Iraq. All 68 passengers were non-citizens and none of them had visas authorising entry, travel or stay in Australia. The boat's condition was poor. It was old and had an engine that shut down regularly and only stayed afloat with constant pumping.
4 The passengers on the SIEV, who later gave evidence to Australian Federal Police, said there were initially four crew on the first day two of the crew departed in another boat and the two of you remained on board as the only crew.
5 Each of you was given the description of captain by one or other passenger and at one stage you, Mr Samad, told the passengers in broken English that the boat was not moving forward and they would "wait for police to come" and then turned off the engine, using your torch to attract authority's attention. The journey took up to three nights and two days.
6 I now turn to the personal circumstances of each of you, noting that neither of you has any prior convictions.
7 I will begin first with you, Mr Samad. You are 31 years old and grew up in a village whose Indonesian name translates literally to Village on the Muddy River. Your father died ten years ago and you have since been the main breadwinner for your mother and younger brother and sister. The village where you live is on a small island, fairly remote, off the coast of Sumatra. Your village is apparently sited along a river for about a kilometres, comprising wooden huts built on stilts in the mud. There is no phone cover or cars. There is no electricity. There is no well and in the wet seasons persons catch water in containers and in the dry season take water from the river. You lived with your family in a two room hut built by your father. The villagers walked between huts on wooden planks and items such as rice were purchased from a couple of small kiosks in the village. I am satisfied that you grew up in poverty and that your family continued to live in poverty. You finished about four years of primary school and two years of what you called tutoring or afternoon school. You can read and write a little in Indonesian.
8 On leaving school you only ever worked as a fisherman. You would engage in share fishing where a crew would go out and the catch would be divided amongst you. If there was no catch there was no money and you would travel to where the work was.
9 At the time you became involved in this voyage you were working on a fishing crew in Muntok where you were approached by a recruiter, one Abdul Bakar, a person unknown to you, who came up to you in a small boat, said he wanted to buy some fish from you and then in conversation offered you work on a boat where you were told you would sail to Jakarta where someone would pick you up and then return you home. You were offered 7 million rupiah, or the equivalent of $700 Australia, to undertake this voyage.
10 You, Mr Felani, were a childhood friend of Mr Samad and he essentially recruited you to go on this voyage as well and you were to be paid 3 million rupiah. You, Mr Samad, were paid the money, which you passed on to your sister, then you travelled from Muntok to Jakarta on a boat organised by Abdul Bakar, and from there the journey proceeded to Christmas Island. It was after you left Jakarta that passengers came on board and it was at this point you became aware of the purpose of the voyage, and having received the money, felt you had to continue. It was at that point Abdul Bakar said he was not going with you and the three crew who got off, that is the captain, a mechanic and a junior sailor, said they were going to follow you and that all would be well and you should simply continue south.
11 This is a common scenario in cases of this kind where vulnerable crew members are abandoned to be picked up by authorities in Australia with the asylum seekers whilst other, probably better paid crew members, escape detection and detention.
12 You were shown how to work the GPS by the captain. You had never seen one before. Your plea was made on the basis that at some stage after leaving Jakarta you became aware of the purpose and destination of the voyage but I accept that at the time you set off you had no idea what it entailed and that your criminality is therefore lessened accordingly.
13 You have had a difficult time in custody where you have remained since being picked up on 21 December 2010. You have had infrequent contact with your family. You speak no English. You are a man who has never travelled far from his home. You have had to spend time in a strange country in an isolated fashion, away from the family that is so important to you and worrying about their welfare.
14 You have continued to work in the gaols, mostly in the timber yard and in the kitchen and have saved about $400. You have had to spend money on rice, the extra rice you require in your diet, and for the expensive phone calls home, which cost about $20 for five minutes. Once place on bail and moved to immigration detention, you have been able to have more frequent contact with your family and discovered that your mother has left your village, which then burnt down and she now lives in another village called Perdeka where you intend to return. You have also been told that brother, who assumed the role of breadwinner on your detention, has been very ill with malaria. You told your counsel that the nights in particular have been lonely for you as that was the time when your village would come together, and you have suffered from the cold of a Melbourne winter after coming from a tropical climate.
15 I turn to you, Mr Felani. You are 30 years old. You were aged 27 when you left Indonesia to make this voyage. Your family comes from the regency, Jambi on Sumatra where you were raised in a village called Nipah Panjung. This comprises about 150 families living on the coast of Jambi, many of them, including your father, working as subsistence fishermen. Your family, and you are the eldest of five children, grew up in a two room house where there was no electricity, where water was bucketed from the river and where your father made a living working on a small boat with a tiny outboard motor owned by a neighbour and where you would go out together, net fishing, and share the proceeds. What food was not eaten was sold at market, averaging about $2 from a fishing trip.
16 You completed primary school and then two years of junior high school, which is unusual, in my experience, from the similar cases that I have heard, and must have involved some sacrifice on your parents' behalf. You left school aged 15, saying you were not very good at school work, and then in order to make a future for yourself, employment being very scarce in your village, left without telling your parents, to go to Jakarta in 1997. You told them where you were once you got there and for the next two or three years lived under a bridge in a Jakarta suburb, which was safe and dry, and worked picking up bottles and cans, making about 70 cents Australian a day. You would spend about 30 cents a day on food and saved the rest and every time you made about the equivalent of $20 Australian you would send it home to your family.
17 After three years neighbours found you to tell you that your mother was sick with black magic and urged you to return home, which you did about a month later. You paid about the equivalent of $30 Australian, which was a lot of money for you, to a local witchdoctor, who said she needed to go to hospital. You then left your village immediately, travelling to a town called Palunban to find work because your family, of course, was desperate for money to pay for your mother's medical bills.
18 You talked your way on to a job as a captain of a cargo boat, which made round trips to Jakarta, carrying fish and prawns one way and blocks of ice on the way back. You received what must have been good wages for you, earning about $30 a round trip, that is $30 Australian. You were given a cash advance by your employer of 6 million rupiah, about $600, which you sent to your family to pay for your mother's medical treatment, and worked that off the next year, living on the boat and being given food by your employer.
19 You worked in that capacity for about five years, when you met and fell in love with the daughter of a local family living at the harbour. Her parents wanted a 50 million rupiah dowry, which you could not afford, so the two of you ran away to Jakarta where you married and where your son was born soon after you were married.
20 You rented a room close to the Jakarta Airport where your wife still lives, although the rent has remained unpaid since you have been in detention and when you return home you will face a debt of about $700 Australian.
21 You started your own business with the assistance of your parents-in-law, who mortgaged their house and gave you a loan of 2 million rupiah, and that business involved you carrying items on a pole, small household items, through the streets of the East Jakarta suburbs, sleeping rough and returning home on the weekend. You earned about 250,000 rupiah a week out of this and in two years had paid back the debt but were unable to sustain the business.
22 You then got work as a diver for a man who shipped boats around the 1000 island chain near Jakarta. You dived for shellfish and lobster every night and were paid a wage of about $2 a day. You apparently never allowed your wife to work and so she was dependent upon you. You continued in this work until about October 2010 when your boss went bankrupt and you lost your job. Between October and December you were unable to find work, the longest period you had ever been unemployed, and your counsel told me there was a great deal of pressure from your wife about the lack of money. You were offered the job by your friend, Akbar Samad, and left immediately. You did not have time to tell your wife where you were going and the first time she found out where you in fact were was when you contacted her from detention at Christmas Island.
23 She has managed to get by, by taking in washing and depending on neighbours for food. The 3 million rupiah was paid to you en route to the boat. You spent some on food and clothing and had the rest on you when you were intercepted by the navy, and that remaining money, about $130 Australian, is the subject of a forfeiture application under the Proceeds of Crime Act. I have no discretion in this matter. The legislation makes it perfectly clear that if I am satisfied moneys are the proceeds of crime and you have pleaded guilty to the crime of people smuggling, for which you say you were paid this money, then I must order that it be forfeited. I note that this money would have been invaluable to you in paying off your debt when you return home. However, it cannot be helped. That is the law.
24 Whilst in prison you have worked in the kitchen six days a week, cooking and preparing food, making about $59 a week and you have saved $625.50, which you will take back with you to Indonesia. What money you have spent has been on the extra rice, again, that you require in your diet, and on phone calls to your wife. Whilst in detention both of your parents-in-law have died. Your counsel informed me that the calls you have had with your wife have been very distressing, as she describes her difficulties and cries, and those calls have to be cut off after about three minutes. That is all you can afford. You have had better contact with her since being bailed to detention in Immigration.
25 It is your aim on your return to stay in Jakarta, as you believe it would be impossible for you to find any work in your home village. This again is a situation where you did not understand the destination or object of the voyage you became involved in until after the boat left Jakarta. Again, I regard this as significant in determining the amount of criminality attached to your offending. I find it to be significantly lessened as a result and I also am satisfied that your plea of guilty, like that of Mr Samad, represents a true expression of remorse as both of you, in my view, had a viable defence and could have run a trial. You are accordingly entitled to a discount not just because of my acceptance that this is a true sign of remorse but because you have saved the Australian community time and money. It is also accepted that the plea by each of you was entered at the earliest opportunity.
26 I am aware of the principles that govern sentencing in matters such as this, involving concerns about the necessity of maintaining the integrity of Australian borders, cost involved in the apprehension and detention of persons such as yourself, the need to maintain an orderly migration process and so on. I am satisfied that your role was at the lower end of the scale in terms of this people smuggling operation, that you were exploited because of your poverty, that your capacity to appreciate that you should be cynical of the large amount of money offered to you, was less possible in the circumstances of the lives you had led to that point, and that you were recruited by the people smugglers as expendable crew who could finish up the journey for them so that the asylum seekers were delivered and they, the more major organisers, and doubtless the greater profiteers from this enterprise, would escape detection and punishment. It is my view that the quite extraordinarily difficult personal circumstances each of you faced, mean that even though I must deal with you by way of a sentence of imprisonment to be immediately served, it should not be a sentence which means you have to serve any extra time in gaol.
27 I am going to situation each of you a little differently. You, Mr Samad, recruited Mr Felani and have made some profit out of this enterprise. The situation for Mr Felani has been disastrous. He was to be paid less in any event. I am satisfied he comes in a bit lower on the scale even than you, Mr Samad, and therefore I will sentence Mr Felani a little less severely than Mr Samad.
28 Ms Breckweg, what are we looking at in terms of how long they have been in custody? What does it work out to?
29 MS BRECKWEG: Twenty-one months and one day.
30 HER HONOUR: Thank you. I therefore sentence you as follows. Would you stand up, please?
31 Akbar Samad and Dodi Felani, you are each sentenced to 21 months and one day's imprisonment. I order that you, Akbar Samad, be released after eight months, as long as you make a promise to this court that you will not commit any further offences for a period of 12 months. I order that there be a recognisance in the sum of $500 attached to that promise but you will only have to pay that money if you get in trouble again. That is if you are caught doing something like crewing a boat of asylum seekers to Australia again. If you stay out of trouble you will never have to pay that $500.
32 Dodi Felani, I am going to order that you be released after six months. Again, if you make a promise to be of good behaviour for 12 months, and I attach $500 to that promise, which will only have to be paid if you get into trouble in the next 12 months, such as, again, working on a crew like the one that brought you to Australia in December 2010. I declare that in relation to each of you that 21 months and one day of this sentence has been served by way of pre-sentence detention, and that means you will not have to serve any further time in gaol.
33 Are you prepared to make that promise to be of good behaviour?
34 OFFENDER FELANI: Yes.
35 OFFENDER SAMAD: Yes.
36 HER HONOUR: Thank you very much. Please have a seat, gentlemen, and we will get a form ready for you. Yes, I order the forfeiture in relation to Mr Felani.
37 MS BRECKWEG: Yes, I hand up the bond forms for signature, Your Honour, and the forfeiture order.
38 HER HONOUR: Thank you. I order forfeiture in the sum of 1,369,010 Indonesian rupiah and one Saudi Arabian riyal. Yes, thank you. Would each counsel please help their clients in signing the recognisance. Thank you very much. Yes. OK, thank you.
39 I should add that in sentencing you I also take into account that you are both men of previous good character and most unlikely to offend again in the future and, indeed, had you not been involved in this enterprise I doubt that you would ever have appeared before any sort of court. Yes, thank you.
40 Yes, the order. We will adjourn to 10.30 on Monday. Thank you very much, counsel. Now that all the sentencing of these matters is over I thank counsel very much for all their assistance in this. It has made my task in getting this through as quickly as I can and as fairly as I can for your clients and to ensure that these men get back to their homes as quickly as possible. I thank you very much for your assistance, Ms Breckweg, in that respect, and of course, to both of you and to all the counsel who have appeared in front of me for these very unfortunate men. Thank you. Good luck to you, gentlemen, I hope your lives go well when you get home. OK, thank you.
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