Director of Public Prosecutions v Siregar
[2012] VCC 1152
•14 August 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-11-02235
| DPP |
| v |
| JEFRI SIREGAR |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 14 August 2012 | |
CASE MAY BE CITED AS: | DPP v. Siregar | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1152 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms F. Holmes | Office of Public Prosecutions |
| For the Accused | Mr D. Brustman Mr R. Lawrence |
HER HONOUR:
1 Jefri Siregar, you have pleaded guilty before me to one charge of people smuggling with the aggravated circumstance of it involving at least five people, contrary to s.233C of the Migration Act 1958.
2 The circumstances underlying this offence are as follows. At about 4 pm on 6 July 2010, a fishing vessel which you were navigating, was boarded by the Australian Customs and Border Protection Service about seven nautical miles inside the Australian contiguous zone and about 20 nautical miles west of Ashmore Reef. The boat designated as Suspect Irregular Entry Vessel (SIEV) 167 was a traditional Indonesian fishing boat about 17 metres long. It had a wheelhouse near the rear and was flying two Indonesian flags. You were apprehended in the boat's wheelhouse.
3 You told ACBPS officers that you were the master of the vessel, that you had been paid ten million rupias (about $A1000) to take the boat to Ashmore Reef and that there were 43 passengers on board. You were arrested along with two other crew members, Muska Liantono and Zahir. Forty-three Afghani men, none of them carrying a visa allowing them to enter or stay in Australia were located on the boat. All passengers and crew were transferred ultimately to Christmas Island. You have been kept in detention at Christmas Island and then the Northern Immigration Detention Centre in Darwin since 10 July.
4 Ultimately, passengers informed Federal Police that they had been driven from various locations in Indonesia to a beach near Surabaya, where they were ferried by small boats to the larger vessel. They said the boat had some fishing equipment which crew members used during the journey. You were described as being responsible for steering the boat. They said the journey to the point of interception took between nine and 11 days.
5 Originally, you entered a plea of not guilty to the charge and proceedings involving voir dires and Basha examinations of various witnesses including a number of the passengers on the vessel took place. It was a feature of their evidence and of statements taken from other passengers that you were described by those passengers in very favourable turns. The passengers said they were well supplied with food and water, that you and the other two crewmembers were polite and friendly to them, appeared concerned for their safety and, indeed, one passenger described you as a noble man. The prosecution summary notes that the crew of the vessel, which of course includes you, also provided life jackets to passengers on board the vessel.
6 I now turn to your personal circumstances. You are a 42 year old man, one of six children who were born to poor family. After leaving school you worked driving trucks and taxis, then began working as a fisherman which does not seem to have been a job providing regular employment. It seems you received work as various fishing boats needed you to crew or navigate. You are married and two children have been born of that marriage, one in 2005 and the other in about 2010.
7 You, your wife and children lived in a small room in a house owned by the aunt of the other crew member, Muska Liantono, in the town of Probolinggo in Eastern Java, a town of about 200,000 people. Your wife, of course, remained in Indonesia and since your incarceration in Australia has had to find work as a house maid to support herself and your children. Your counsel told me that after she has paid rent, she lives on about $A5 a month, indicating the very small wage she makes and the financial difficulties suffered by your family since your arrest.
8 Tragically, you were informed only yesterday, August 13, that your eldest child in fact died a year ago, a matter kept from you by your wife because she did not want to distress you further whilst you were in prison in Australia.
9 You are working in the kitchen in gaol and receive a small wage, most of which goes on the telephone calls between yourself and your wife every three to four weeks. You have no prior convictions either here or in Australia and your counsel informed me that on your eventual release and return to Indonesia, you will seek employment on the land rather than at sea.
10 At the time you took up the job of crewing SIEV 167 you were unemployed. You met up with a man at a local café in Probolinggo and were offered the job, asked to find a crew, which you did, and were offered ten million rupia, about half of which was paid to you by way of deposit.
11 When Customs boarded your vessel, they discovered 5,588,000 Indonesian rupia on board which was the deposit and which will now be confiscated as an instrument of crime.
12 Counsel told me that you were told you were ferrying cargo on the vessel which was to be delivered to another Indonesian island. The night before the boat was due to leave, you went on board and slept there. You were not the owner of the boat nor had you seen it or been on it before you boarded it that night. During the night the Afghani refugees were ferried onto the boat and you awoke next morning to discover them there. It seems you had some conversations with the man organising the operation who told you that because you had accepted the deposit, you had to continue with the journey which he told you was to end in Australia at Ashmore Reef.
13 Your counsel mentioned some threats being made to you because you did not want to undertake the voyage in the circumstances that you then discovered them to be. You said you felt you had no option but to go ahead, although you did not want to. You have a capacity to navigate, to read maps and GPS systems which you picked up while working on boats, although you have no formal qualification as a master or ship's mate.
14 It was clear from the passenger statements that you were primarily responsible for navigation and steering. Your counsel submitted that you were not a captain nor a ship master but simply another member of the crew with perhaps a more responsible job in terms of getting the ship to its destination. I am not entirely sure that I agree with that submission, but it does not seem to me to be particularly fruitful to make a finding one way or another. You have pleaded guilty to the charge of people smuggling and I am satisfied that you had a responsible role in getting the ship to where it was supposed to go.
15 There has been no argument between prosecution and defence about the appropriate sentence in your case. Section 233C of the Migration Act describes the offence of people smuggling as an aggravated one because it involved at least five people and the penalty for this is a mandatory gaol term with a maximum penalty of 20 years and a mandatory minimum for a first offence of five years with a three year minimum term.
16 Both the prosecution and defence submitted that the minimum term that can be imposed was appropriate in your case. I agree with this submission. I make the comment, as have many other judges in this and other States who have presided over cases of this type, that sentencing provisions under the Migration Act and their mandatory terms appear to me to be aimed at persons far further up the smuggling operation chain than you were. You were at the bottom of the hierarchy.
17 You are a vulnerable man in that you live in very poor financial circumstances so that the money offered to you, I accept, would have been overwhelming in its capacity to improve the financial circumstances of you and your family. I am satisfied that the results of this activity have been devastating for you and have impoverished your family greatly in an already impoverished situation.
18 It is my view that the criminality of your actions is vastly outweighed by the sentence I must impose and the legislation is a vivid example of the problems with mandatory sentencing, in general. In one sense it is like drift-net fishing. It does not simply punish the bigger fish that this punishment is aimed at. It also embroils small fry like yourself and the results for you and those like you are utterly devastating in a way hopefully not intended by the legislators.
19 Your plea of guilty was entered at a relatively late stage but in my view understandably so prior to the obtaining of a particular witness in the course of the voir dire whose evidence made your position very difficult and you pleaded guilty the day after that statement was obtained. Your counsel told me that you made an offer to plead guilty on 8 August on conditions including that the charges against your co-accused, Mr Liantono and Mr Zahir were discontinued. Ultimately that occurred but I hasten to add it is quite clear the Crown made its decision based on its own independent appraisal of the situation, as opposed to complying with any conditions you sought to set.
20 Clearly your counsel informed me of that circumstance as one underlying your unselfish nature and I accept that it does demonstrate this and that you are, in my view, clearly a man of good character. You were clearly very kind to desperate and vulnerable people like your passengers. Unfortunately, the courts have heard of many other such cases where refugees who have paid thousands of dollars for this illegal passage to Australia being exploited and positively ill-treated. It is very much to your credit you did not take advantage of these otherwise powerless people.
21 Obviously the fact that the court is mandated to impose a sentence of imprisonment to be immediately served for such offences means that the issue of general deterrence, that is the imposition of a sentence to deter other people who might be minded to offend in the same way is a major principle to be observed by the courts in cases of this kind. I do say that it is a matter of regret to this court that I must sentence you to a period of imprisonment at all. But Parliament has spoken and the courts must obey Parliament.
22 HER HONOUR: In sentencing you, I take into account the matters outlined to in s.16 of the Commonwealth Crimes Act together with the other mitigatory factors referred to in my sentencing remarks.
23 I therefore sentence you as follows:
On the charge of aggravated people smuggling, you are sentenced to five years' imprisonment. I order that you serve three years of that sentence before becoming eligible for parole. I direct that 771 days of that sentence have already been served by way of pre-sentence detention.
24 An application has also been made by the Commonwealth Director of Public Prosecutions for a forfeiture order under ss.48 and 59 of the Proceeds of Crimes Act (Cth) 2002 in relation to the moneys found on board the vessel, that is 5,588,000 Indonesian rupia, $US750 and two Malay ringgits. It is submitted that these moneys are an instrument of crime in that they are the moneys paid to you for carrying out the transportation of the Afghani refugees. The application and submission by the prosecution to that effect are not resisted by the defence. I am satisfied that those moneys were an instrument of crime and I therefore order that they be confiscated.
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