R v Buka
[2016] VCC 75
•10 February 2016
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-00100
| THE QUEEN |
| v |
| WASIM BUKA |
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JUDGE: | Her Honour Judge Hampel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Plea 1, 10 February 2016 | |
DATE OF SENTENCE: | 10 February 2016 | |
CASE MAY BE CITED AS: | R v Buka | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 75 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: sentence – people smuggling – former refugee assisting family members – moral culpability – role of general deterrence – whether imprisonment warranted - delay
Legislation Cited: Migration Act 1958 (Cth) s 233A, Crimes Act 1914 (Cth) ss 20(1)(a)–(b)
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director | Ms K. Breckweg | CDPP |
| of Public Prosecutions | ||
| For the Accused | Mr M. Cahill Ms A. Burchill | Stary Norton Halphen |
HER HONOUR:
1 Wasim Buka, you come to be sentenced for two charges of people smuggling. The first relates to the assistance you provided the daughter of one of your brothers and her husband who arrived together on Christmas Island on 6 December 2011.
2 The second relates to the assistance you provided to the nephew of one of your sisters-in-law, who arrived in Australian waters six weeks later on 19 January 2012.
3 Your role in respect of each charge was to put them in contact with people who were involved in the people smuggling trade in Indonesia to assist in finding them or paying for their accommodation when they were in transit, and to provide financial assistance, some from your own funds, otherwise by arranging for the transfer of funds provided by other family members to pay for their passage to Australia.
4 You, like these three family members, are a Shia Faili Kurd. As the official DIAC country guidance notes record, Shia Faili Kurds are a recognised stateless minority group in Iraq and Iran. You were born in Iraq and were seven when, as a result of the policies of Saddam Hussein, your family was expelled from Iraq and deported to Iran.
5 Stateless and displaced, your family was denied access to government support, education and healthcare. Even the right to work was denied. Your youth was spent in refugee camps in Iran, or part of it, in any event. You made a number of unsuccessful attempts to escape Iran before finally arriving in Australia by boat in 2000.
6 Your wife and two-year-old son made the perilous journey by sea with you. You sought and were granted asylum in this country and have made it your home. In 2007, you became an Australian citizen. Your second child was born here. Your son has now finished school and is looking to start an apprenticeship. Your daughter is in secondary school.
7 You see yourself as having had the great fortune to find a life free from the oppression visited on you simply because you were born a Faili Kurd, and to enjoy the rights of citizenship in a country that offered you safe haven.
8 Others of your family were not so fortunate. Two brothers were executed in Iraq under the dictatorship of Saddam Hussein. Only a year after your arrival, one sister, following in your footsteps and seeking safe haven in Australia drowned, along with her husband and five children, in the waters between Australia and Indonesia.
9 In a very personal and graphic way, the confronting reality of the hazardous voyage, often in unseaworthy, overcrowded boats, manned by unskilled or insufficiently-skilled crew, of death at sea, of lives lost, not remade, of the consequences of the unsuccessful gamble with the risk of death was brought home to you.
10 I was told, and have no reason to doubt, that the death of your sister and her family, trying for the same opportunity which had been afforded you, affected you profoundly. I was told, and accept, that you sought to dissuade other family members from coming to Australia in the same way.
11 It is easy to understand how people in the desperate situations which have created so many refugees in the Middle East - and when I say “refugees”, I mean people who are entitled to claim asylum, as they are found to have a well-founded fear of persecution in their home country - would look to the hope of escape and think it worth the risk of death to flee. How they would focus on the stories of those who succeeded and not consider the consequences if they were not as lucky.
12 It would be hard to withstand the tugs of family loyalty not to feel selfish and guilty in refusing to assist those who want to take the same risk you did in the hope of finding the same good fortune that you found. That is the moral dilemma you found yourself in. I was told, and have no reason to doubt, that your niece and her husband had already left Iraq, intent on making their way to Australia by boat and seeking asylum, when they sought your help.
13 I accept, for sentencing purposes, that you did not approach or encourage them, but responded to their calls for assistance. They had already been defrauded by one of the unscrupulous people who prey on the vulnerability of those desperate enough to pay to make the journey to Australian waters.
14 He had promised them places on a boat, but had taken their money and disappeared. You were pressured by family members to help them. Your niece’s husband had himself been imprisoned, as had other members of his family. His account of his treatment at the hands of the Iraqi regime contained in his entry interview upon arrival in Australia is harrowing.
15 You put your niece and her husband in touch with someone you knew, a man I was told you had first met when in a refugee camp 20 years earlier, and who you knew to be involved in people smuggling. He is currently serving a sentence, as I understand it, for his involvement in people smuggling activities.
16 As it turned out, your niece and her husband found their own smuggler, a man by the name of Haji Hussein. You advanced them the funds to pay Haji Hussein, as they had spent their money in paying the fraudster.
17 Your niece and her husband applied for asylum on arrival. Their claim was accepted. They have been recognised as genuine refugees and granted asylum in this country. You were approached by family members about the other relative, your sister-in-law’s nephew, after you had begun to provide assistance to your niece and her husband.
18 Again, I was told, and I accept, that you were placed under emotional pressure to assist. It is not hard to understand that the inevitability of the agreement to provide him with like assistance. In this case, you acted as a conduit for funds provided for him by other family members. I was told money could be transferred from Iraq to Australia, and from Australia to Malaysia and Indonesia, but not directly from Iraq to Malaysia or Indonesia. Again, there is nothing to contradict that.
19 In addition, you provided some small sums from your own resources to assist him with living expenses whilst waiting in Malaysia or Indonesia, and put him in contact with Haji Hussein, the people smuggler, with whom your niece had ultimately secured her passage to Australia.
20 You also assisted him in finding and securing accommodation whilst he was in transit. He too ultimately arrived safely in Australia, applied for and was granted asylum.
21 This conduct clearly constitutes facilitating the arrival in Australia of these three relatives who, notwithstanding your belief that they wished to exercise their lawful right to apply for asylum, you knew did not have permission to enter Australia, and so, in terms of s.233A of the Migration Act, did not have a lawful right to come to this country.
22 Your role is that of a facilitator, not an organiser. You acted as you did out of family loyalty or a sense of family responsibility. This was not a commercial venture on your part. You made no money out of your involvement. Indeed, you paid out of your own pocket to assist their passage to Australia.
23 This places you, in my view, in a different category to the organisers or middlemen, those who are, as governments are wont to say, “in the business of people smuggling”. The circumstances of your offending also placed you in a different category to the captains and boat crew who are paid by the organisers to crew the boats which bring the asylum seekers to Australia.
24 I find your moral culpability is much lower than that of the organisers, middlemen and boat crew. As far as I am aware, and so far as counsel are aware, you are the first family member of an asylum seeker who came here without a lawful right to enter to be charged with facilitating their entry into Australia. That means there are no comparable cases and no comparable sentences to provide guidance.
25 The proceedings against you have been protracted through no fault of your own. You were charged with people smuggling offences in March 2012, not long after your relatives had arrived in Australia. Although much of the evidence, particularly telephone incepts and witness statements, which were sought to be relied on against you was already in existence by the time you were charged, it took nearly two years before a committal hearing was conducted.
26 You were committed for trial in this court in late January 2014, and a trial date was set for just over a year later in April 2015. The defence was not advised until just days before the trial was due to commence that one vital witness was unavailable and another was, in the prosecutor’s opinion, so uncooperative and unreliable as to justify not calling her as a witness. That, in turn, led to a three-month adjournment.
27 On the resumed date, the prosecutor became aware for the first time of significant additional evidence. That led to a further three-month adjournment and, remarkably, to the discovery by the hapless, and by then very embarrassed prosecutor, of further significant evidence. That necessitated a further adjournment.
28 So it was that the matter was listed nine months after the original trial date and four years after the arrival in Australia of your niece and her husband before me in December last year for further pre-trial argument. The additional evidence, the existence of which was only discovered by the prosecutor in October last year, changed and considerably strengthened the prosecution case against you. It was against that background that discussions about resolving the matter led to a sentence indication hearing being conducted before me in December last year.
29 By s.207 of the Criminal Procedure Act, such a hearing can only be requested if the prosecution consents, and can only be sought for a preliminary view from the judge as to whether the court would or would not impose a sentence that involved a term of imprisonment immediately served.
30 Both prosecution and defence put to me that a term of imprisonment was warranted, but it was not necessary to be immediately served. Having heard submissions, I ruled on the material then before me that I would not consider it necessary to impose a term of imprisonment immediately served.
31 On that indication, you pleaded guilty to the two charges on the indictment, and the plea date was set for 1 February this year. In the circumstances, I treat the plea as an early plea of guilty. Although charges had been laid four years’ earlier, the plea was offered at the first reasonable opportunity after the full extent of the prosecution case against you had been revealed and was able to be properly considered by you and with the assistance of advice from your counsel.
32 In addition to the weight you are entitled to be given as a result of your early plea of guilty, there are a number of other mitigating factors counting in your favour. The first is the delay which I have detailed. You have had these matters hanging over your head unresolved for over four years. That is an unfair and excessively long time, and as the chronology I have set out makes clear, the delay was not of your making.
33 The toll on anyone of awaiting the resolution of charges over such a time is likely to be considerable. For a refugee with a history of living in a country where he did not enjoy the protection of the rule of law, as we know and respect here, that is, in my view, an added burden.
34 Dealing next with your personal circumstances. You are 45 and have proved your good character in order to become an Australian citizen. You have no convictions in this country or charges pending. Despite the experiences of statelessness, discrimination and dispossession as a young person, by reason of your ethnicity, the exposure to the war between Iran and Iraq during your youth, the losses your family suffered due to their status as Kurds and the effects of dispossession, you have made the most of the opportunities afforded you here.
35 You have a history of hard work, are in a stable marriage, and are the proud father of two teenage children from that relationship. You express gratitude for the opportunities this country has offered you and your family. Not surprisingly, as the report from the psychologist, Mr Crewdson, confirms, you are affected by the traumatic experiences to which you have been exposed, but you are obviously resilient and have managed, despite those experiences, to remain in reasonably good physical and mental health.
36 I consider you are unlikely to reoffend in this in any other manner again. In my view, the experiences since you have been charged should be sufficient to deter you. In the lead up to the entry of your pleas of guilty and the presentation of your plea, you were assessed by Mr Crewdson. He diagnosed you with an adjustment disorder directly related to the impact of these protracted proceedings on you. You have had some stress-related physical symptoms as well. It is anticipated those symptoms will abate or disappear once these proceedings are finalised.
37 This is relevant, not only to the impact of delay, but also to my consideration of your prospects for rehabilitation and to the need to consider how to evaluate specific deterrence. Having regard to these matters, I consider your prospects for rehabilitation are high, and I do not consider there is a need for specific deterrence to weigh in the sentence.
38 People smuggling is a serious offence. The charges to which you have pleaded guilty carry a maximum sentence of 10 years’ imprisonment. The Migration Act states as one of its objects the regulation in the national interest of the coming into and presence in Australia of non-citizens. In various cases in courts around this country where organisers, facilitators for profit, captains or boat crew have been sentenced for people smuggling offences, courts have articulated the reasons why the offence is regarded as a serious one, and one where, generally, general deterrence is a significant sentencing factor.
39 Those factors include the violation of Australia’s sovereignty and national security by the unlawful entry of non-citizens into Australia, the risk to Australia from such offences due to its large coastline, the administrative burden and financial cost shared by the Commonwealth and the states and territories by reason of detection, law enforcement, detention and prosecution of such offences, and the risks to health and quarantine.
40 In one case, the court went so far as to say that the reasons for general deterrence included what was said to be the “obvious social problems to the fabric of Australian society”. I am not sure what the evidence is to support that last proposition. My understanding is that asylum seekers form a very low percentage proportionately of the people who commit offences in Australia or otherwise cause social problems to the fabric of Australian society, but that is probably by the bye.
41 This is not the time or place to discuss the moral obligations of a well-off country to accept and welcome refugees and asylum seekers. Parliament has chosen to make it an offence to facilitate the entry of people to Australia who are not citizens, who do not have a lawful right to entry, but who escape from strife or persecution, and who meet the criteria for refugee status under international and domestic law.
42 Parliament has chosen to make it an offence for a person in Australia to facilitate the entry of a family member who is fleeing persecution but has no lawful right of entry to Australia, and that is why you are here today being sentenced.
43 There was considerable discussion in the course of the plea about whether general deterrence was a significant factor here. In careful and comprehensive submissions on the first day of the hearing of the plea, in the written supplementary submissions filed and again today, the prosecution submitted it was. It further submitted, that by reason of the need to give weight to general deterrence, the only appropriate sentence was one which involved the imposition of a period of imprisonment, even if that term were not one immediately served.
44 In my view, in these most unusual circumstances, imposition of a custodial sentence in order to serve the needs of general deterrence is not warranted. As I have already said, I consider your moral culpability to be low. This is not a case where the sentence can rationally be seen to act as a deterrent to organisers, middlemen or facilitators who are in the business of people smuggling for profit.
45 The circumstances of your offending did not involve exploitation of the vulnerable or seeking to profit from the human misery caused by war or the denial of basic human rights to people from countries less fortunate than this. Nor can it sensibly or rationally be seen to act as a deterrent to captains or boat crew. The captains and boat crew who have been dealt with in Australian courts for their role in people smuggling have generally been Indonesian fishermen eking out a subsistence existence in small villages or coastal towns and who are prepared to risk imprisonment in Australia in exchange for the offer of money, meagre in our terms, but sufficient to set them up for life in theirs.
46 There are some organisers, facilitators, middlemen, captains or crew who have shown an outrageous disregard for human life. Again, that is not the case here.
47 Should you be used as a vehicle to deter other family members who are under moral pressure to help family members flee the oppression they themselves have fled or seek asylum in a country which has given them a chance of real life? Even if in some cases that might be felt to be appropriate, yours is not the proper vehicle for a generally deterrent sentence to serve that end. The moral dilemma which you faced is one which, in my view, so reduces your moral culpability as to make you an inappropriate vehicle for general deterrence.
48 One factor, which I was not told at the time of the sentence indication, but which I consider to be of particular weight here when considering your moral culpability and the inappropriateness of making an example of you, is the circumstances of the death of your sister, her husband and their five children. If that is not enough to act as a deterrent, then in my view no sentence imposed by a court, and which is proportionate to the criminality, would, in my view.
49 I should add, and as the defence identified in their supplementary submissions, the need to impose a sentence which will act as a deterrent to refugees safely in Australia from facilitating the entry into Australia of family members in need of asylum has been overtaken by events.
50 The bipartisan support for the turning back the boats policy, and the policy of offshore processing, and the upholding just last week by the High Court of the validity of offshore processing means there is no longer any capacity to facilitate the entry into Australia of family members seeking to claim asylum by coming to Australia by boat.
51 Notwithstanding those matters that I have just detailed, this is one of the cases where whatever the sympathy for your plight, your conduct in assisting your family members was unlawful, and the sentence must reflect the reach of the law to all people, no matter what mitigating circumstances there are. There is an irreconcilable tension between these factors that have been identified.
52 However, the matters I have identified in the circumstances of the offending, and in your personal circumstances, and the mitigating factors that I have identified make this, in my view, a most unusual case. Despite the views of the prosecution and defence as to the appropriate sentence, and the agreement between them as to that, I do not consider the sentence to be imposed must be one involving imprisonment, even if not immediately served.
53 As the High Court in the case of Barbaro & Zirilli v The Queen[1] recently made abundantly clear, no agreement by the prosecution and the defence can usurp my sentencing discretion, my responsibility to make my own decision according to what I think is right and in accordance with the law.
[1] (2014) 253 CLR 58.
54 In my view, the seriousness of the offending in the circumstances can properly be marked by recording of a conviction and your release on a recognizance release order to be of good behaviour for a period of two years.
55 Mr Buka, can you now stand, please?
56 Wasim Buka, on the two charges to which you have pleaded guilty, you are convicted. On those charges, you are to be released upon a recognizance release order to be of good behaviour for a period of two years. I fix the sum of $1,000 as the bond to secure your promise to be of good behaviour.
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