Director of Public Prosecutions v Jopar
[2012] VCC 1437
•18 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
CR 12-00356/CR 12-0357
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| UNKNOWN JOPAR and UNKNOWN WILDAN |
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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. Jopar & Anor. | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1437 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K. Breckweg | Office of Public Prosecutions |
| For Accused Jopar | Mr T. Marsh | |
| For Accused Wildan | Ms C. Gwynn |
HER HONOUR:
1 Jopar and Wildan, you have each pleaded guilty people smuggling contrary to s.233A of the Commonwealth Migration Act 1958.
2 The facts underlying your offending are as follows. On 26 November 2010, the Indonesian fishing vessel on which you were both crew members was subject to a Australian Naval boarding outside the contiguous zone near Ashmore Reef. On board were found 40 passengers including men, women and babies. They came from Iran, Iraq and Afghanistan, none of them had visas allowing them to enter Australia.
3 Passengers interviewed said they had paid various amounts of money to people smugglers who eventually organised their boarding onto the vessel from an Indonesian island called Mataram. They were boarded at night and told authorities that two crewmen, said to be each of you, steered the boat to Australia in turn. The vessel you all travelled in was subsequently called Siev 214.
4 Apparently Siev 214 was tailed for about two days while sailing towards Australia by a larger newer boat on which was a people smuggling organiser named Mustafa, who then came on board Siev 214. Mustafa had maps and explained to passengers that due to rough seas, they would not be taken to Christmas Island but Darwin. He then spoke to the crew with the map in front of them, told them what to do and steered the boat for a while.
5 Mustafa left the vessel about a day before the Australian Navy intercepted it, taking one of the crew with him. That third crewmember was, according to one of the passengers, a crewmember from the larger boat brought to Siev 214 by Mustafa. There was no GPS system and the two of you checked your direction using a small compass in front of the steering wheel.
6 Passengers said they used body language to communicate with the crew and would use their fingers to ask how many days left to travel to Australia and that the crew would respond using their fingers and say Australia to indicate the number of days left in the journey. Apparently, during this communication the crew, that is each of you, would show the passengers that they would be handcuffed or arrested when they got to Australia by putting your hands together.
7 There was limited food on the Siev, comprising tuna, water and biscuits. There was a stove for cooking, there was no fishing equipment. It is not known whether there were any life jackets present on the boat. Each of you was placed in Navy Detention on 26 November 2010 and have remained in custody ever since. It is of note that passengers on the boat described each of you as kind and compassionate in your treatment of them.
8 I now turn to your personal circumstances, starting with you, Wildan. You were born in 1968 but do not know your actual date of birth, living in a village called Setayah Jatr where your parents died when you were a baby. You were raised by relatives and other villagers. You have two older sisters living in the same area and another brother and sister who have died. You left school after Grade 1 and have very little in the way of reading or writing skills.
9 You have nine children born of two marriages, your first wife died about ten years ago and is the mother of six of your children. Your second wife and you have had three children, the youngest of whom was 18 months at the time of your arrest. You have made your living by fishing, labouring and farming, bringing in a subsistence income. Your house is located somewhere outside the village area in which 12 people live. It has no electricity and there is no running water, which is instead from a river.
10 You went to nearby Sungar for work around the time you were recruited for this voyage where you had been told there could be work on boats undertaking squid fishing. Eventually you were approached at the market and offered work transporting people to Kupang, another island, being offered about $A50, which, in terms of your very low income, represented a fortune to you. I am satisfied that you come from a position of extreme poverty and that this sum of money would have made a significant difference to the living situation of yourself and your family.
11 Apparently, on the journey to Kupang you were accompanied by a second boat containing Mustafa and it was only once you were at sea that you were informed the true destination and the plea is made on the basis that thereafter you acted as a people smuggler of those passengers to this country.
12 Your term in detention since your arrest has been extremely difficult. Primarily, you have suffered greatly from asthma, being hospitalised more than 11 times whilst in custody. You have had very limited contact with your family, that being by telephone only which is an expensive exercise for you. You have learned, whilst in custody, that your mother-in-law has died and that your wife has lost her sight. You were unable to work whilst in gaol because of your asthmatic condition. Your brother also died, whilst in gaol, of an asthmatic condition. You are unable to speak any English and have only been able to communicate with those around you with the help of other Indonesian crew members. I accept that your time in custody has been extraordinarily difficult, exacerbated by your illness and what moneys you did earn when you could work had to go on telephone calls home and on the extra rice you required in your diet, you receiving medical advice that it may assist with your asthma.
13 I now turn to you, Jopar. You believe you are 39, you were born in Kuta, a village in Lombok. You almost completed primary school but left on the death of your father in order to support your mother as you were the only child. You can read and write a little in both Buhasa and the native dialect Sasak.
14 From the time of leaving school, you, too, eked out a substance income as a fisherman that your counsel informed me involved in fishing off a canoe overnight offshore. Before undertaking the voyage to Australia, you had apparently never been out of sight of land.
15 You married in about 1994 and have one daughter, now 15 years old, who is in junior high school, which is a matter of some pride to you. Once you married, you, your wife and your mother moved to another island where you reached an arrangement with a landowner that you would build a house, undertake farming and turn over half the crops to him. I was informed you grew crops such as corn and raised chickens but the rains often failed and it was a harsh existence from which you made little money. The marriage failed after six years, the house was sold and your former wife returned to Kuta.
16 You stayed on with your mother and built a new house on the same property and continued subsistence farming. Again, the crops failed and you decided to go to Sumba where, like Wildan, you believed you could find work with the squid fishing fleet. You were apparently fresh off the ferry when you were approached by the same people smuggler organiser who had spoken to Wildan and were told the same story as he, that is that you would be paid $A50 to take people to Kepung. You were told the journey would take two days and two nights. You thought that this was a perfectly safe enterprise because if you weren't paid, and the arrangement was that you would be paid at the end of the journey, you would be able to keep the boat that was used.
17 At that stage your mother was in good health and you felt able to leave her. Again, you were informed, as was Wildan, once the boat was at sea that the destination, in fact, was Australia. Your role was essentially helping with steering and looking after the engine. Again, you were described in very positive terms by the passengers as kind and compassionate towards them.
18 You were initially placed in custody in Darwin and there learned from relatives in Lombok, who had come and got your mother once you failed to return, that she had died about a month after you were arrested. This devastated you and you are still not sure how she died.
19 You are a practising Muslim, as are most people from Lombok, and your religion is important to you, I accept, as are the rules of life that members of Islam are to obey. You have not told any of your relatives, with whom you have been in occasional telephone contact since arrest, of your whereabouts as this would be a matter of great shame and, indeed, is a matter of shame to you.
20 Your counsel made a point of informing the court that you believe you have been well treated in gaol and that you have been apologetic to your counsel for the trouble you have caused. Neither you nor Wildan have any prior convictions. Both you simply hope to return home, you, Wildan, to resume care of your family, you, Jopar, to see your daughter and perhaps live with an uncle for a while, and both of you to continue the hardworking yet difficult and poverty-stricken lives you were leading before becoming involved in this voyage to Australia.
21 Of importance in the sentencing exercise before me, is the finding that neither of you began the voyage to Australia in the knowledge that that was where you were going and I accept that both of you were tricked into becoming crew to a people smuggling enterprise to Australia. I accept that you did not discover the true destination until you were well underway and I accept your counsel's submissions, made on behalf of each of you, that you had a viable defence to run, had you chosen to take that course.
22 You were, of course, initially charged under s.233C of the Migration Act, you have both spent extended time in custody, six months of it without charge, the rest of it fearing that you would face a mandatory minimum term of three years to serve. In my view, your plea of guilty, which is accepted as an early plea to the new charge laid against you under s.233A, was an early one.
23 I am satisfied that it was poverty which led you to offend as you did, that you did not begin your participation in it with any knowledge you were committing a criminal offence and that the circumstances surrounding your ultimate discovery of the destination and what you were involved in, mean that your plea, in the circumstances, has particularly significant weight.
24 I am satisfied you are persons of good character who would be unlikely to offend again in the future, who were effectively exploited by the people smugglers because of your vulnerable situations and who left you on a boat to be apprehended by the Australian Navy, while they themselves, undoubtedly persons higher up the organisational chain, and making far more profit out of the entire business, took themselves off to ensure their fate was not the same as yours.
25 I am satisfied that your position as crew members meant that you had nothing to do with any organisational failings relating to sufficient food, the presence of life jackets, the safety of passengers and so forth. I accept that you were pawns and I accept what each of your counsel said on your behalf, that you feel you have been deceived.
26 Each of you will return with some money earned from prison work you have done but I accept your suffering has been immense and protracted.
27 It is quite clear from the authorities, that is decisions from the Courts of Appeal in New South Wales, Queensland, Northern Territory and Western Australia, that the only appropriate way that I, a County Court judge, should deal with you is by imposing a sentence of imprisonment to be immediately served. In my view, the imposition of such a disposition is an expression of the general deterrence that must accompany sentencing in cases such as this. Issues such as border control, the orderly conduct of migration into this country, the costs associated with intercepting illegal vessels containing asylum seekers are sufficiently grave that courts such as this are bound to sentence in a way that will send a message to others that it will not be to their benefit to behave in the same way.
28 As was pointed out during the plea, the great difficulties you have endured in gaol are not markedly different to other Indonesian crews who have been intercepted on boats such as yours and have then been incarcerated in Australia. It was not urged upon me by the prosecution, however, that I should sentence you in any way, which means that you should remain in gaol any longer. In other words, it was conceded you have spent enough time in custody.
29 Madam Prosecutor outlined to me the statistics relating to sentencing in cases such as this and I am therefore persuaded that I should impose a head term approaching the head terms submitted by her to be appropriate. I am, therefore, going to sentence each of you to a term of imprisonment of 633 days or one year, nine months and 18 days.
30 Because of the special circumstances relating to your involvement in this offending, I am going to order that you serve a minimum term of nine months. I direct that this sentence has already been served by way of pre-sentence detention. What that means, gentlemen, is that you will not have to serve any more gaol because the sentence I have given you is already covered by the period of time you have spent in detention.
31 Ms Breckweg, I need your assistance again. I am imposing a head sentence in each case - - -
32 MS BRECKWEG: Yes of one year nine months and 18 days and to be released after serving nine months of the period upon entering into a recognisance in the sum of $500.
33 HER HONOUR: For a period - - -
34 MS BRECKWEG: To be of good behaviour for - - -
35 HER HONOUR: For 12 months.
36 MS BRECKWEG: Pursuant to s.21(b) of the Crimes Act (Commonwealth). The paperwork is being prepared now, Your Honour.
37 HER HONOUR: Thank you very much. Gentlemen, the way I have to express it in legal terms to you is that you are sentenced to one year, nine months and 18 days gaol and you are to be released after nine months upon entering into a promise to be of good behaviour in the sum of $500 for 12 months. You do not have to pay the $500 unless you offend again. So if you do not get into any more trouble in the next 12 months, you will never have to pay that $500. Are you prepared to make this promise to the court? Thank you. That is pursuant to s.21(b) of the Commonwealth Crimes Act 1914. Have a seat and we will get those forms to you.
38 MS BRECKWEG: I will hand these up to Your Honour.
39 HER HONOUR: Thank you very much. Can each of your clients be capable of signing this?
40 MR MARSH: Yes, Your Honour.
41 MS GWYNN: Make a mark.
42 HER HONOUR: That will do. As long as you have seen it, that will be fine. If counsel would like to go down with their clients and assist them with this, that would be good. Thank you very much.
43 MS GWYNN: May I be excused from the Bar table to assist in this?
44 HER HONOUR: Of course.
45 MS GWYNN: Your Honour, there is an official squiggle by Mr Wildan.
46 HER HONOUR: That will do.
47 MS GWYNN: That is as good as it gets.
48 HER HONOUR: Very well.
49 MR MARSH: Mr Jopar has signed albeit far less grandly than your associate.
50 HER HONOUR: Everyone signs far less grandly than my associate, from what I can see. Very well, is that everything? Thank you very much.
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