R v Akbar

[2016] VCC 924

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00099

THE QUEEN

v

HOSSAIN AKBAR

---

JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	29 June 2016
DATE OF SENTENCE:	29 June 2016
CASE MAY BE CITED AS:	R v Akbar
MEDIUM NEUTRAL CITATION:	[2016] VCC 924

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Queen	Ms K. Breckweg	CDPP
For the Offender	Mr J. Lavery	James Dowsley & Associates

1HER HONOUR: Hossain Akbar, you have guilty to one charge of people smuggling under s.233A of the Migration Act 1958 by virtue of s.11.2A(1) of the Criminal Code (Cth).

2In February this year I sentenced your uncle, Wasim Buka, for two charges of people smuggling.  The charge to which you have pleaded guilty relates to assistance provided by you to him in respect of the second of the two charges to which he pleaded guilty.  That is the facilitation of the entry into Australia of a man by the name of Mohammed Mohammed, a non‑citizen without a lawful right to enter this country, and who you knew did not have a lawful right to enter.  Mohammed Mohammed is your cousin. 

3You are Iranian born Shia Faili Kurd.  So too is your uncle, Wasim Buka, as is your cousin, Mohammed Mohammed.

4As I said in my reasons for sentence in respect of Mr Buka, Shia Faili Kurds are a recognised stateless minority group in both Iran and Iraq.  By reason of their status as Shia Faili Kurds they do not enjoy the same protections, rights or privileges of citizenship as others in Iran or Iraq.

5It is not surprising so many of them have left the country that they ended up in, whether it is Iran or Iraq, and sought a safer place somewhere else. 

6You were only 17 when you arrived at Christmas Island seeking asylum.  I infer that the decision to leave  Iran was partly yours and partly that of extended family members who wanted to give you the opportunity of a better and safer life somewhere else.  Be that as it may, the term "unaccompanied minor" probably understates the difficulties a young person faces, being sent away from home and family to another country, with another language, and a different culture. 

7In any event, you arrived here, sought asylum and were recognised as a refugee.  You were ultimately granted a protection visa and a right to reside in this country.  You spent about eight months in detention before being sent to Melbourne.  Your uncle, Mr Buka, who had himself arrived in Australia many years earlier seeking asylum, had been recognised as a refugee and granted a right to live here free of discrimination, oppression and denial of rights, had settled in Melbourne and ultimately become an Australian citizen.  He provided you with considerable emotional and other support.  His oldest child is not much younger than you.

8You undertook an intensive course in the English language upon arrival in Melbourne and by the age of 18 had obtained employment at a supermarket.  Five years later at the age of 23 you are still working there and you have risen to the position of manager of a department within that supermarket. 

9It was not long after your arrival in Melbourne and when you were still only 18 that you assisted your uncle, Mr Buka, in relation to the arrival in Australia of your cousin, Mohammed Mohammed. He, like you and your uncle before you, had arrived in Australia as a non‑citizen without a lawful right to come to the country, as those terms are defined in the Migration Act.

10Mohammed Mohammed in turn applied for asylum, he too was recognised as a refugee and he too has been granted a protection visa enabling him to stay in this country. 

11The assistance that you provided, and which constitutes facilitation of the bringing or coming to Australia of a non‑citizen with no lawful right to enter, occurred over a period of about a month, that is from about the end of November 2011 to about the end of December 2011. 

12Telephone intercepts reveal that you were aware that Mohammed Mohammed was planning to come to Australia and seek asylum.  Your counsel characterised your role as acting essentially as a conduit between Mr Buka and Mohammed Mohammed.  That is a fair characterisation of your role.  At your uncle's request you transmitted information about how to transfer money from Iran through an intermediary to Mr Buka's account.  You relayed information provided to you by Mohammed Mohammed to Mr Buka about his travel plans from Iran to Malaysia and on to Indonesia and his requests for money to pay for his accommodation and to pay the people smugglers who were to bring him to Australia.  You relayed information from Mr Buka to Mohammed Mohammed about finding accommodation in Malaysia and Indonesia. 

13Your role is clearly much less than the role of your uncle.  In effect you assisted him in facilitating the entry or arrival of Mohammed Mohammed.  You were not an initiator of any of the steps that I have described, but it is clear that you did provide assistance by assisting in the transfer of money and the transmission of messages relating to Mohammed's ultimately successful effort to arrive in Australia by boat and seek asylum.

14When sentencing your uncle I said that he was clearly not an organiser or a person profiting by exploiting the vulnerability of people desperate to flee oppression in their home country and seek a better life here.  Clearly the same applies to you.  Like your uncle you faced a moral dilemma.  You had left Iran in the hope of finding a better life here.  You were brought here by people smugglers and, as I have said, given that you were only 17 when you arrived, others must have assisted or facilitated your entry into this country.  You were asked to assist to give your cousin Mohammed the same opportunity that you had been given to flee oppression and to seek a better life here.  Your uncle, who had provided you with support and assistance from the time of your arrival, and who was a significant senior family member in your life in Australia, sought your assistance.  It is not at all surprising that in the circumstances with pressure from both ends that you provided the assistance that you did.  It does seem monumentally selfish to say you will not provide assistance to help another family member come to Australia after the way that you arrived here. 

15I am satisfied, so far as you are concerned, as I was satisfied in respect of Mr Buka, that you acted out of family loyalty or a sense of family responsibility.  As I said in respect of Mr Buka, your moral culpability is much lower than that of organisers, middle‑men and boat crew and I adopt, without repeating it again, what I said when I was sentencing Mr Buka in that regard.

16I find that your moral culpability, by reason of your youth and the dependency on your uncle, to be even lower than that of your uncle.  You and your uncle are, as far as I am aware, and as far as Ms Breckweg, and I think Mr Lavery are concerned, the first family members of asylum seekers who came here without a lawful right to enter to be charged with facilitating their entry into Australia. 

17It was acknowledged during the sentencing hearing for Mr Buka that there were no comparable cases or sentences to provide guidance.  The sentence I imposed on Mr Buka does provide some guidance now for sentencing you, although your circumstances are different.  You pleaded guilty to one charge, whereas he plead guilty to two.  Your role was assisting the facilitation of the arrival in Australia of one person, his related to three people.  You were only 18 at the time, whereas he was a mature man in his 40s and, as I have noted, the father of a son not much younger than you.  And, your role was a lesser role than his.  

18Like him, you are of good character.  You have no prior convictions, and in the four years since Mohammed Mohammed's arrival in Australia you have not been charged with or convicted of any other offence of any type at all.  You have a very steady work history for one so young and, as I have noted, you have been promoted to the position of manager of a section of the supermarket.  You are clearly shouldering adult responsibilities and facing life with a maturity somewhat surprising from the perspective of what we see in the court, for someone so young and without the benefit of parental guidance here. 

19The years between 18 and 25 can be a vulnerable time for young people as they move into adulthood and live their own independent life.  You have shown a responsible and steady approach to your adulthood.  

20Unlike your uncle, you are not an Australian citizen.  As I understand it, you were not eligible to apply for citizenship by the time you were asked by your uncle to assist him because you had not been in this country for long enough to qualify for application.  You have not been able to apply for citizenship since by reason of the unresolved nature of this charge.  

21I take all of these matters into account in your favour.  I also take into account in your favour your plea of guilty.  Although it was entered at a very late stage you are entitled, in my view, nonetheless, to a significant sentencing benefit for it. 

22I adopt, again without repeating here, the recitation of the circumstances contained in the Buka reasons for sentence that led to such inordinate and inexcusable delay between the time you were charged and the time the matter finally came on for trial before me.  The slowly evolving nature of the prosecution case against Mr Buka in particular meant that he could not give proper consideration to the weight of the evidence against him until just before his trial was due to start late last year.  It was accepted by all parties that as your role was essentially that of providing assistance to him and only in respect of the last charge in time sequence that it was very difficult to give proper consideration to the weight of the evidence against you and to appreciate the manner in which the case against you was put until the matters in relation to Mr Buka were properly understood.  To that extent it is proper to characterise you as a passive bystander waiting whilst the matters in respect of Mr Buka unfolded. 

23You are also much younger, on the cusp of adulthood, and the difficulty in understanding what was doing no more than assisting family members to achieve the same end that you had, and being subject to criminal charges for doing so is, I accept, a more difficult task.  It is for those reasons that I do not think you should be disadvantaged by reason of not entering your guilty plea until the time of trial.  I accept that by the time the matter came on for trial you were in a position to evaluate the legal advice provided to you as to what constitutes assisting in the facilitation of the arrival in Australia of a non‑citizen without a lawful right to enter and that based on that advice you entered your plea of guilty, that is, that you accepted your legal responsibility.

24I accept that in the circumstances, and notwithstanding the Commonwealth's position in relation to Cameron's case, that your plea of guilty has utilitarian benefits and that you are entitled to a reduction in the sentence otherwise to be imposed by reason of that. 

25I also take into account in your favour as reducing the sentence otherwise appropriate the delay of over four years between the offending and laying of charges and trial.  Again I adopt, without repeating here, what I said in my reasons for sentencing Mr Buka about the tortured history of this matter, the reasons for the delay and the oppressive effect on a person awaiting trial or sentence of that delay.

26A delay of over four years is clearly unacceptable for any person coming before a court.  The oppression on you was exacerbated because your right to remain in this country has been unresolved for all that period.  So in addition to the considerable burden of having the charge unresolved for so long you have also had to deal with the uncertainty of whether you would be successful in applying for Australian citizenship or whether your permanent resident status would be revoked as a result of the charge.  That in my mind is a significant punishment which has been exacted upon you through no fault of your own.  It would appear that despite the spirited submissions put by Ms Breckweg during the sentencing hearing for Mr Buka that it is now accepted that general deterrence plays limited, if any, role for you.  Even if it were thought that general deterrence should play some role in sentencing, you are clearly an inappropriate vehicle for significant weight to be given to general deterrence.  No sentence imposed on you will deter the people smugglers, the boat captains or, for that matter, the crew, and I consider in the circumstances, having regard to your history, both before your arrival in Australia and after you were charged, that there is no need give any weight to specific deterrence.

27It was for these matters that Mr Lavery submitted that the appropriate disposition was a release without conviction on a bond under s.19B. The prosecution did not submit that that was an inappropriate disposition having regard to the most unusual circumstances of this case.

28I am satisfied that you were of good character before and after the commission of the offence, that your antecedents, your youth and the effect on you of the inordinate delay in the matter coming to trial and the extenuating circumstances of the family relationships, in combination make it inexpedient to inflict any punishment other than a nominal punishment on you.

29I therefore propose not to record a conviction but to discharge you upon your undertaking to be of good behaviour and upon security by recognisance fixed in the amount of $500 to be of good behaviour for a period of 12 months.

30Could you now please stand. 

31Mr Akbar, on that charge of people smuggling you are discharged under s.19B of the Crimes Act 1914 without any conviction being recorded against your name, and upon your giving security by recognisance of $500 to comply with this condition, that you be of good behaviour for a period of 12 months.

32I have made this order because I am satisfied that although the charge is proved, I am of the opinion having regard to your character, antecedents and age, and the extent to which the offence was committed under extenuating circumstances, that it is inexpedient to inflict any punishment other than a nominal punishment. 

33Mr Akbar, do you understand what it is that I have said I am doing, releasing you without conviction on your promise to be of good behaviour for a period of 12 months, secured by a recognisance of $500? 

34OFFENDER:  Yes.

35HER HONOUR:  If you are not of good behaviour during this period of 12 months then you can be brought back before me to be dealt with for breaching your promise to be of good behaviour, do you understand that? 

36OFFENDER:  Yes.

37HER HONOUR:  And that means I would then have the power to discharge or to vary the order I have made today and impose a different penalty for the offence that I am now dealing with, do you understand that? 

38OFFENDER:  Yes.

39HER HONOUR:  And are you prepared to promise to be of good behaviour for that period of time? 

40OFFENDER:  Yes.

41HER HONOUR:  Then I will ask, Mr Akbar, that this document be given to you and ask you to sign it acknowledging that what I have explained to you and your agreement to be bound by the order. 

42Once you have been given a copy of that document, Mr Akbar, you will be free to leave the court, and it is my sincere hope that will you not come back before me on breach proceedings, I think it is highly unlikely.  If you do come back before a court again I hope it is because you are providing assistance to somebody and you are able to give character evidence for them or for some other reason like that. 

43I want to thank you personally for the patience and good spirit that you have shown throughout what has been a very long and difficult proceeding.  It has been frustrating for everybody involved and I cannot really understand how much more difficult it must have been for the person on the receiving end of the charges, but you have acted with courtesy and respect for the court and its process and patience in the face of adversity.  That has been something I have noticed and want to acknowledge. 

44Can I thank you, Ms Breckweg, your instructor and those assisting you for all the assistance through what has been a long and very difficult time, and you too Mr Lavery for bringing this matter finally to a conclusion.  I would like you, if you could, convey my thanks also to Mr Moglia and those in instructing you and him.  It has been an incredibly long and protracted process, and Mr Buka and Mr Akbar have really acted remarkably well throughout it in the circumstances.  Despite the difficulties all the parties, the legal representatives and the police have made this a much easier process than it otherwise could have been.  I am grateful.

45MS BRECKWEG:  May I thank Your Honour, and, of course, your staff, thank you.

46HER HONOUR:  Thank you.  I hope I do not see any of you again in relation to this matter.  Thank you, we will adjourn. 

‑‑‑