Director of Public Prosecutions v Henok

[2012] VCC 1432

IN THE COUNTY COURT OF VICTORIA Revised

AT MELBOURNE

CRIMINAL DIVISION

CR-12-01007

DIRECTOR OF PUBLIC PROSECUTIONS

v

YERMIAS HENOK

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 September 2012
CASE MAY BE CITED AS:	DPP v. Henok
MEDIUM NEUTRAL CITATION:	[2019] VCC 1432

REASONS FOR SENTENCE

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Catchwords:

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

HER HONOUR:

1 Yermias Henok, you have pleaded guilty to one charge of people smuggling, contrary to s.233A of the Migration Act 1958, which carries a maximum sentence of ten years' imprisonment or 1000 penalty units or both.

2       On 30 May 2011 Customs officers boarded a vessel which was 13.7 nautical miles inside the Australian territorial sea, approaching Ashmore Reef.  You identified yourself as the master of the vessel, saying the journey had begun from the port of Roti and indicated you were heading towards the Australia mainland.  You pointed to a compass when asked about what navigation equipment was on board.  Fifty-two passengers including twenty-four children were found on the boat (which was then dubbed SIEV 250) originally from Iran, Syria, Kuwait and Afghanistan, all of them non-citizens and none of them applying for or holding a valid visa authorising travel and entry to Australia.  An amount of 1,206,000 Indonesian rupiah, or about $120, was seized from your baggage.  You have consented to that money being forfeited, which is a matter I can take into account in mitigating the sentence I must impose upon you.

3       You have been held in immigration detention and custody ever since.  Passengers who made statements to Australian Federal Police described being loaded on to the boat at Surabaya in East Java by night and said there were originally up to eight crew but a day before interception another boat came to Thiev and some of the crew left.

4       You were seen by them to steer the boat and use a compass, as was another member of the crew.  The journey from Indonesia to the point of interception took seven to eight days.

5       I now turn to your personal circumstances.  You have one prior conviction for being involved in people smuggling.  On 16 March 2001 you were sentenced to a head term of three years and three months' imprisonment with a minimum term of one year and eight months for aggravated people smuggling said to have occurred on or about 22 December 2000, this involving 43 asylum seekers to Australia on a boat.

6       You are 69 yeas old and were born, you think, in about 1943, at which time there was Japanese occupation of your island and your father died when you were six months old during forced labour for the Japanese where you think he was killed in a landslide.

7       As a result you have always lived in poverty.  Your counsel informed me that you had to wait some years to marry in order to get together the dowry and financial set-up required.

8       You have four children, two older sons who are farmers, a third son who comes and goes but it still dependent upon you financially, and a daughter who is married with a child and who lives in your home.  Your son-in-law is a farmer.

9       You come from the island of Rotay in a village called Oiluor, where you live in a village subdivision of about 180 people in a two room house.  You had three years of education, have always worked as a fisherman, as a crewman on boats leaving Kupang Port and your income depends on the catch.  Generally I accept you have always lived a life of poverty.  On the day you were approached for involvement in this journey you were in fact selling honey at a Kapung market.

10      It appears you suddenly made a decision that because you are old you wanted to do something, having always lived in poverty, which would assist your family financially.  It is clear you were told from the outset you were to travel to Subaya and then to Australia to assist asylum seekers.  It is clear you had knowledge of the consequence of your actions, having been previously gaoled.  It is also clear this was to be the inevitable outcome for you on this trip, the aim being that the crew would take the boatload of refugees to a point where it was intercepted by either Customs or the navy.  The remaining crew would then go into detention.  On the one hand it can be said you went along with your eyes wide open.  On the other hand it can be said that given your eyes were wide open, that is that you would be detained in custody, as you have been since your arrest, this was indeed a sort of fateful journey where your ultimate fate was a matter of some indifference to you, as long as it resulted in money to your family.

11      Notwithstanding that you do have a prior conviction I am satisfied that this offending was brought about by the poverty stricken conditions you have endured all your life.  I was informed your family was paid 5 million of the 10 million rupiah promised, which is a sum of about $50 Australian.

12      Whilst in gaol you have suffered fairly continual ill health, medical records showing steady treatment, mainly by way of Panadol for various coughs and pains and colds you have encountered, in the much colder climate you have lived in.  You were also hospitalised for pneumonia.  You have worked in a low level cleaning job, which your age has restricted you to, have had to use much of it to purchase extra rice and make phone calls home each week and have amassed the sum of about $543.

13      Your counsel informed me that when asked if you would ever do this again you threw up your hands, essentially, and said you did not even think you were going to be a fisherman on your return home because you are too old, you are going to grow vegetables and ask your children for money.

14      I am satisfied that issues of specific deterrence have a relatively low role to play in the sentencing exercise before me, primarily because of your age.

15      It is difficult when sentencing someone for an offence which they have committed before in precisely the same way, as you have, and where they have been gaoled, as you have, not to feel a sort of irritation at the repeat performance, if you like, and regard the person as someone who is contemptuous of the law and who, to some extent, thinks he can do as he likes.

16      I am satisfied, however, as I have said, that the poverty which no doubt drove you to offend in the first place, has had the same role to play this time around, and that it does seem to have been some sort of late in life gesture which I accept you to some extent now regret.  Nevertheless you have offended in precisely the same way before, and this must be reflected in the sentence I impose upon you.

17      In sentencing you I take into account your plea of guilty, which was made at the earliest stage, the compelling circumstances of poverty which drove you to offend again in this way, your age, the fact that despite being a person who has always had to operate under very difficult conditions, has generally been of good character apart from this episode of offending and the last, you have not demonstrated that you sought to get your way out of poverty by exploiting others, by theft and the like, so that I am satisfied you have always been a responsible husband and father in the face of many difficulties.  That is that you are a person of good character.

18      I am also satisfied, as I have said, that given your age, it is highly unlikely that you will would re-offend in this manner.  I also accept that because of your age and isolation from your family and general illness, the time you have spent in detention and in custody have been more difficult for you than for most other prisoners.

19      I therefore sentence you as follows.  Could you stand up, please?  On the charge of people smuggling you are sentenced to three years' imprisonment.  I order that you be released after a period of 15 months and 20 days on you entering into a recognisance in the sum of $500 to be of good behaviour for two years.

20      What that means is that you promise to be of good behaviour and you only have to pay that $500 if you commit a criminal offence in the next two years, like coming to Australia again on an asylum seeker boat.  OK?

21      OFFENDER:  (Through Interpreter) Not any more, Your Honour.

22      HER HONOUR:  No.  Are you prepared to make that promise?

23      OFFENDER:  Yes, Your Honour.

24      HER HONOUR:  Thank you.  All right, we will just prepare the documentation.  I declare that 15 months and 20 days of this sentence have already been served by way of pre-sentence detention.  That means you will be going home pretty soon, Mr Henok, to grow vegetables and get money from your children and not to come on a boat like this to Australia again, OK.

25      OFFENDER:  Nothing more, Your Honour.

26      HER HONOUR:  Yes, good, OK, have a seat, thank you.  Forfeiture order, yes.  I order that the sum of 1,206,000 Indonesian rupiah be forfeited.  Do I have to sign this anywhere?  Yes, I do.  No, it is signed by the registrar.

27      MS MURPHY:  I understand there is an order that I will just hand up to Your Honour.

28      HER HONOUR:  Thank you.

29      MS MURPHY:  I understand it is in triplicate.

30      HER HONOUR:  All right.  Can you go down, Ms Murphy, with this while I - I will just sign there, thank you.  Are we done?

31      MS MURPHY;  Yes, Your Honour.  Your Honour, could I return the subpoenaed materials?

32      HER HONOUR:  Sure.  Thank you.

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