Director of Public Prosecutions v Paijan, Pering
[2012] VCC 2155
•19 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-01520
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PERING PAIJAN |
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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 Paijan, Pering | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2155 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K. Breckweg | Office of Public Prosecutions |
| For the Accused | Ms P. Murphy |
HER HONOUR:
1 Pering Paijan, you have pleaded guilty before me to one charge of people smuggling contrary to section 233A of the Commonwealth Migration Act 1958.
2 The facts underlying your offending are as follows. A wooden vessel dubbed the "SIEV 223" was intercepted by Australian Customs on 19 December 2010, the SIEV being sighted at anchor on the east side of a reef at Cartier Island in the vicinity of the Ashmore Islands. As the boarding party approached you were seen on the deck in front of the coach house motioning Customs officers to come alongside. You wrote down your name and indicated that you were the captain. You told Customs officers that the boat had left Surabaya in Indonesia a week before, that it had arrived at the location where it was anchored the day before and that you had taken the role on the boat because you needed money, as your parent was sick.
3
The boat was discovered to have holes in the hull and rotting planks, and was determined not to be seaworthy. There were drums of water and large quantities of noodles and rice on board, together with ample fuel. There were 56 passengers on the boat, mostly from Afghanistan, some from Pakistan and Iran, and included six children between nine and 16 years of age. All
56 passengers were non-citizens, without valid visas authorising them to enter or travel in Australia.
4 Passengers who made statements to the Australian Federal Police described leaving on the boat from a beach near Surabaya with an original crew of six Indonesians. On the third day of the voyage the boat's engine broke down near Rote Island. A second boat was brought out, to which the crew and passengers were transferred, and the two boats then travelled together to Rote Island where two of the original Indonesian crew got off. The situation is that once the two Indonesian crew left the boat near Rote Island, which is the last island in Indonesian waters, you took over the role as captain and were seen steering the vessel using a compass and maps, directing other crew members and working the pumps.
5 I now turn to your personal circumstances. You are 29 years old and live in the Alor Islands in Indonesia, growing up on Banta Island, which is one of the Alor Island chain, where your father was a fisherman. He died suddenly in 2001, you are convinced, of black magic created by a neighbour who had asked your father for money. Your father refused and was dead an hour later. You completed primary school and worked with your father, who was also a fisherman, crewing on boats and working on engines and nets.
6 You have no regular income, as what you have been paid for crewing on others' boats depends on the amount of the catch, but it would seem a normal payment when it was made was about 20,000 Rupiah, the equivalent of AU$2. I accept that you have grown up in poverty and continued to live in poverty at the time you commenced this journey to Australia. Once your father died you became responsible for the support of your mother and younger sister. You married in 2006 and have a son, aged almost four. You, your wife, your mother, sister and son live in the house in which you grew up, which is a two-room home without running water or electricity, and I was informed by counsel in fact there is no electricity in your village.
7 You were unable to continue school past primary school although you wanted to, as your parents could not afford to send you away to a private school as there was no secondary college where you lived. Once your father died you never took trips which took you away from home for any period of time. When not fishing you grow vegetables which your family eat or sell.
8
You became involved in this offending when one day you were fishing on a small sampan, when you were approached by a man named Abdullah in another boat who struck up a conversation with you and then offered you
50 million Rupiah, or AU$50, to go on a boat to Surabaya. You initially refused, saying that your mother was ill, and were promptly offered 100 million Rupiah or AU$100, an extremely large amount of money in your terms, and you accepted. At the time your mother required a bowel operation for which you had to pay.
9 At the time you went to Surabaya all you knew was that you were going on a trip. You had heard of Australia, but thought it was a very great distance from your home, and had never heard of asylum seekers coming to Indonesia and travelling illegally to Australia by boat. It was not until the passengers were boarded at night in Surabaya that you became aware of the purpose and nature of the trip. Even then, and I accept your counsel's submission on this point, it appears you did not have the sort of appreciation of the illegality of your actions, especially in the light of the money that you were paid, that someone of greater education and world experience would be expected to have. In that respect I regard you as being somewhat unique, in that I accept that your appreciation of the criminality of your actions was virtually non-existent.
10 I am fortified in this view by your response to Customs officials, that is, you beckoning them aboard, freely answering all questions put to you in a way that was entirely unhelpful to your situation in a legal sense.
11
It is quite clear that the offence of people smuggling, where it has involved crewing on a boat on a journey of some days' duration, in your case about
11 days, must attract a sentence of imprisonment to be immediately served. Various authorities from the Supreme Courts of Western Australia, the Northern Territory, Queensland and New South Wales, Courts of Criminal Appeal, have made this clear, and the collective strength of these otherwise merely persuasive authorities is such that I am satisfied I would be falling into judicial error were I not to follow these cases.
12 You have been held in custody now for a year and nine months. The promised moneys were paid to your family. About six million Rupiah was spent on your mother's operation and it appears that the remaining four million Rupiah was used by your family to live in the absence of you, the only breadwinner. However, that money ran out and your sister has moved to Rote Island where she works in a shop and sends money home to support your mother, wife and son. I accept that your time in custody has been difficult, it being in an entirely foreign environment, you do not have English, you have had contact with your family only via occasional telephone calls to your sister, and that overall it must have been a lonely and stressful experience for you.
13 You have worked in the woodwork area at the remand centre whilst in custody, much of the moneys you earned being spent on the extra rice required in your diet, which seems to have been a feature for all members of the Indonesian crews I have had to sentence so far, as well as the expensive telephone calls, which cost about AU$20 per four minutes. That is, you have suffered from factors such that I am satisfied your time in custody has been more difficult than it would have been for other prisoners, for reasons which are regularly recognised by Australian courts as having a mitigatory effect on the sentence.
14 Your counsel informed me that you told her you would never again take a trip where you did not know the destination, no matter how much money you were offered, and I accept that that is so. You are a person of no prior convictions. You have always been a law-abiding, hard-working man, holding a responsible position in your family, and I am satisfied you have excellent prospects of rehabilitation and that the courts are most unlikely to see you again.
15 I am satisfied you very much regret your involvement in this undertaking. You entered a plea of guilty to the substitute charge of 233A at the earliest opportunity, and I accept that this is a true expression of remorse on your part. Your life in gaol has been difficult, your prospects of rehabilitation, as I have said, are very good, your involvement in this undertaking, in my view, understandable and indicative of low criminality on your part, and for this reason I propose to sentence you to a term of imprisonment for these reasons. I intend to sentence you to a term of imprisonment which will not involve you remaining in gaol any longer.
16 I therefore sentence you as follows.
17 Sorry, I also note that whilst you took a pivotal role as captain, this has less effect than it otherwise would have given my finding as to the lack of appreciation you had as to the criminality and illegality of your actions.
18 Could you stand up, please?
19 On the charge of people smuggling I sentence you to one year and nine months' imprisonment. I order that you serve ten months of that sentence before becoming eligible for parole.
20 Pursuant to section 21B of the Commonwealth Crimes Act 1914 I direct that you be released after ten months upon you entering a recognisance in the sum of $500 to be of good behaviour for 12 months.
21 What that means, Mr Paijan, is that if you promise to be of good behaviour for a 12 month period you will only have to pay that $500 if you get into trouble with Australian police again. Otherwise you will not have to pay any money at all. Are you prepared to make that promise?
22 OFFENDER: Yes.
23 HER HONOUR: Thank you. I declare that one year and nine months of this sentence has already been served by way of pre-sentence detention. Are there any other days left over? On the one year, nine months?
24 MS BRECKWEG: I am told it is exactly that.
25 HER HONOUR: It is exactly that?
26 MS BRECKWEG: It is exactly that.
27 HER HONOUR: All right. I do not want him held for - I want to get him back to the wedding.
28 MS BRECKWEG: Yes.
29 HER HONOUR: What that means, Mr Paijan, is that I have imposed a sentence which is the same as the period of time you have already spent in detention and gaol. So you will not have to serve any more time in gaol. We need to prepare a document for you to sign. So just have a seat, thank you.
30 MS MURPHY: Your Honour, could my instructor go to the dock?
31 HER HONOUR: I was going to ask you - once we have the document I would like you to go down the back with Mr Paijan so he can sign the recognisance and you can just explain it a bit more.
32 MS MURPHY: Yes.
33 HER HONOUR: Thank you. My associate will go down with you, Ms Murphy, thank you. Yes, Ms Breckweg? Mr Paijan can be taken down.
34 MS BRECKWEG: I will ask him where he'd like to go; I'm not sure how many immigration people there are here in terms of whether he - - -
35 HER HONOUR: Find, it'd be better if you just keep going with Mr Henok. Let's do that.
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