R v Disun
[2003] WASCA 47
•18 MARCH 2003
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: R -v- DISUN [2003] WASCA 47
CORAM: MURRAY J
ANDERSON J
TEMPLEMAN J
HEARD: 7 FEBRUARY 2003
DELIVERED : 7 FEBRUARY 2003
PUBLISHED : 18 MARCH 2003
FILE NO/S: CCA 184 of 2002
BETWEEN: THE QUEEN
Appellant
AND
BASTIAN DISUN
Respondent
FILE NO/S :CCA 185 of 2002
BETWEEN :THE QUEEN
Appellant
AND
NORBAMES NURDIN
Respondent
HEARD: 7 FEBRUARY 2003
DELIVERED : 18 MARCH 2003
FILE NO/S :CCA 187 of 2002
BETWEEN :NORBAMES NURDIN
Appellant
AND
THE QUEEN
Respondent
FILE NO/S :CCA 189 of 2002
BETWEEN :BASTIAN DISUN
Appellant
AND
THE QUEEN
Respondent
Catchwords:
Public International Law - Immunity from local criminal jurisdiction of persons on foreign ship within its territory - People smugglers rescued by Norwegian registered private ship - Ship stopping in Australian territorial waters - Arrest on board by Australian police - Lawfulness - Whether prosecution should be stayed for abuse of criminal process
Criminal law - Sentence - People smugglers - Crown appeal against leniency - Sentence of 7 years with a minimum of 3 years and of 4 years with a minimum of 18 months not set aside as inadequate
Legislation:
Crimes Act 1914 (Cth), s 3A, s 3W
Extradition Act 1988 (Cth), s 8
Migration Act 1958 (Cth), s 232A
Result:
Appeal against conviction and Crown appeal against sentence dismissed
Category: A
Representation:
CCA 184 of 2002
Counsel:
Appellant: Mr J A Scholz
Respondent: Mr M R Hall
Solicitors:
Appellant: Commonwealth Director of Public Prosecutions
Respondent: Mr M R Hall
CCA 185 of 2002
Counsel:
Appellant: Mr J A Scholz
Respondent: Mr H C Quail
Solicitors:
Appellant: Commonwealth Director of Public Prosecutions
Respondent: Hylton Quail
CCA 187 of 2002
Counsel:
Appellant: Mr H C Quail
Respondent: Mr J A Scholz
Solicitors:
Appellant: Hylton Quail
Respondent: Commonwealth Director of Public Prosecutions
CCA 189 of 2002
Counsel:
Appellant: Mr M R Hall
Respondent: Mr J A Scholz
Solicitors:
Appellant: Mr M R Hall
Respondent: Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Chow Hung Ching v The King [1948] 77 CLR 449
Chung Chi Cheung v The King [1939] AC 160
Cita v The Queen (2001) 120 A Crim R 307
Ilam v Dando (1999) 109 A Crim R 47
Levinge v Director of Custodial Services (1987) 9 NSWLR 546
R v Tait (1979) 46 FLR 386
Walton v Gardiner (1993) 177 CLR 378
Whittaker v The Queen (1928) 41 CLR 230
Case(s) also cited:
Aruli v Mitchell, unreported; FCt SCt of WA; Library No 990161; 31 March 1999
Barton & Anor v The Commonwealth of Australia (1974) 131 CLR 477
Dinsdale v The Queen (2000) 202 CLR 321
Lowndes v The Queen (1999) 195 CLR 665
R v Hartley (1978) 2 NZLR 199
R v Peterson (1984) WAR 329
Regina v Horseferry Road Magistrates Court, Ex parte Bennett (1994) 1 AC 42
Ruddock & Ors v Vadarlis (2001) 183 ALR 1
MURRAY J: I have had the advantage of reading in draft the reasons for judgment of Anderson J.
I respectfully agree with his Honour that the appeals against conviction should be dismissed. There was no impediment to the making of lawful arrests aboard the MV Tampa whilst it was at anchor contrary to the request of the Australian authorities within the Australian territorial sea some 4 nautical miles off the coast of Christmas Island. That being the case it was proper for the appellants to be detained in custody and subjected to the processes of an Australian court. I agree that this is not a case for the application of the Extradition Act 1988 (Cwth). The appellants make no criticism of the trial process itself and the appeals against their convictions should be dismissed.
As to the Crown's appeals against the sentences imposed, I have joined in the orders made by the Court dismissing these appeals at the conclusion of the hearing. My reasons for joining in those orders are a little different from those given by Anderson J. I need not discuss my views at any length, but I should set them out in summary form, at least.
I would agree that the sentences imposed were lenient. Indeed, they were understood to be so by the sentencing Judge (who was not French DCJ). His Honour's express justification for taking the course he did upon sentence was his view that the firm sentences hitherto imposed by the courts might be accepted as having had a general deterrent effect because of the long period which had elapsed when his Honour came to pass sentence, without any incursion into Australia or Australian waters of a vessel such as the KM Palapa 1. I would expressly concur in the view expressed by Anderson J that such a view provides a deceptive justification for the reduction of sentence if, in the result, an inadequate sentence is passed having regard to ordinary criteria.
As to that I had regard to the useful information placed before the Court by learned counsel for the Crown. I need not discuss the individual cases. The conclusion to which I came was that although the sentences were lenient they might still properly be described as being at the bottom end of the range of sentences which had hitherto been imposed by the courts. In those circumstances, it seemed to me to be clear that, particularly on a Crown appeal against sentence, there was no justification for this Court to interfere. The Court will be justified in intervening on a Crown appeal for the purpose of correcting errors of principle on the part of sentencing Judges, correcting idiosyncratic notions as to appropriate sentences and for the purpose of supporting the certainty and
predictability of the proper application of sentencing principles. To my mind this case did not fall into any such category.
ANDERSON J: These are a group of appeals arising from the conviction and sentencing of two Indonesian citizens who had been presented in the District Court at Perth on a joint indictment charging them together with two others of an offence against s 232A of the Migration Act 1958 (Cth) namely that:
"Between about the 23 day of August and the 26 day of August 2001 at Indonesia and the seas between Indonesia and the Territory of Christmas Island [the four men] facilitated the bringing to Australia of a group of five or more people to whom sub‑section 42(1) of the Migration Act 1958 applied, and did so reckless as to whether the people had a lawful right to come to Australia…"
There are before the Court a Crown appeal against sentence in each case and appeals by the Indonesian citizens Bastian Disun and Norbames Nurdin against their convictions. It will be convenient to refer to Disun and Nurdin as the appellants.
The background to the charges is notorious and is popularly referred to as the "Tampa Affair". In the early morning of 23 August 2001 a 20 metre long wooden Indonesian fishing vessel named "KM Palapa 1" set out from Java after having taken on board 433 men women and children and set on a course pre‑plotted into a global positioning system in the possession of Disun. The course was to Christmas Island, an Australian territory approximately 380 kilometres south of Java. The four persons named on the indictment including the two appellants were the crew of the vessel. The appellant Disun had the role of master in that it was he who was principally responsible for the management and navigation of the Palapa. About 60 nautical miles from Christmas Island the vessel broke down (not for the first time during this voyage) and commenced to drift. It was sighted by an Australian Customs Service coast watch plane during the morning of 25 August which observed persons on the vessel signalling for assistance. The following day, in response to an all vessels distress signal which was put out by Australian authorities a Norwegian registered vessel, the MV Tampa was directed to the Palapa. It came alongside the Palapa at a point approximately 80 nautical miles north‑west of Christmas Island and the 433 passengers and four crew voluntarily transferred from the Palapa to the Tampa. When the transfer was complete the Tampa sailed towards Christmas
Island and at about 9.30 am on 29 August although repeatedly requested not to do so by Australian immigration officials it entered Australian territorial waters by crossing the 12 nautical mile limit of the territorial sea of Australia around Christmas Island and stopped about 4 nautical miles offshore. For present purposes it is not necessary to detail the very considerable amount of discussion and debate and general excitement which surrounded these happenings. Suffice it to say that, at approximately 6.30 pm on 3 September 2001 Australian Federal Police boarded the Tampa whilst it was in Australian territorial waters near Christmas Island and took the four persons named on the indictment, including the two appellants, into custody. They were then taken to the Christmas Island police station, charged and lodged in the watch house until they appeared before justices on 4 September 2001 in the Christmas Island Court of Petty Sessions. They next appeared before the Perth Court of Petty Sessions at Perth on 11 September 2001 whereupon they were remanded for trial. Before they were brought to trial an application was made in the District Court for a permanent stay of the prosecution of the proceedings. An indictment had by then been presented against them and it was the proceedings on that indictment which were sought to be stayed. The ground of the application essentially was that the formal arrests which took place on the Tampa were unlawful and the subsequent removal of the men to Christmas Island was also unlawful. It was submitted that in the exercise of its discretion to prevent abuse of its process the Court should order a permanent stay of the prosecutions: Walton v Gardiner (1993) 177 CLR 378; Levinge v Director of Custodial Services (1987) 9 NSWLR 546.
French DCJ decided that neither the arrests which took place on the Tampa nor the removal of the men from the Tampa to Christmas Island were unlawful and her Honour dismissed the application.
The proceedings being not stayed all four men went to trial in the District Court and the appellants were convicted. The appellant Disun was sentenced to 7 years' imprisonment with a non‑parole period of 3 years and the appellant Nurdin was sentenced to 4 years' imprisonment with a non‑parole period of 18 months. In its appeals the Crown contends that these sentences are manifestly inadequate.
It is convenient to deal with the appellants' appeals against their conviction before dealing with the Crown appeal against sentences. The ground of each appeal against conviction is that:
"The Court erred in law in failing to permanently stay the prosecution of the appellant as an abuse of process."
The power of arrest which was relied on by the police officer who arrested the appellants is conferred by the Crimes Act 1914 (Cth) s 3W. That section provides:
"3WPower of arrest without warrant by constables
(1)A constable may, without warrant, arrest a person for an offence if the constable believes on reasonable grounds that:
(a)the person has committed or is committing the offence…"
It is not in dispute that the arresting officer had reasonable grounds to believe and did believe that the appellants were committing the offence of which they were subsequently charged. Nor is it in dispute that the Crimes Act has extra‑territorial application. Section 3A provides:
"This Act applies throughout the whole of the Commonwealth and the Territories and also applies beyond the Commonwealth and the Territories."
Mr Quail, who appeared as counsel for the appellants, submitted however that the Crimes Act "has to be read consistently with territoriality" by which he meant the territoriality of other nations. It was his submission that it would be unlawful for an Australian police constable to go to a foreign country and arrest a person there for infringement of the laws of Australia. That is not to my mind self‑evidently true but it is a question which would only arise for determination in this appeal if Mr Quail was able to make good the more fundamental proposition on which the whole appeal rests and that is that by virtue of s 8 of the Extradition Act 1988 (Cth) the MV Tampa was part of Norway notwithstanding that the vessel lay within Australian waters.
Section 8 is in the following terms:
"(1)For the purposes of the application of this Act in relation to a country (other than Australia):
(a)a colony, territory or protectorate of the country;
(b)a territory for the international relations of which the country is responsible; and
(c)a ship or aircraft of, or registered in, the country;
are, except in the case of a colony, territory or protectorate that is an extradition country, each deemed to be part of the country."
With all due respect, this section does not operate in the manner contended for. It does not mean that extradition procedures must be put in motion in order to arrest and remove suspected felons from foreign registered vessels in Australian territorial waters. The Act operates only in circumstances in which it is necessary for Australia to make a request for extradition. If it is not necessary to do so the Act has no application. There is no requirement to make an request for extradition of a person who is within the territory of Australia which of course includes its territorial waters.
I think Mr Quail would argue that to construe the Extradition Act in this way would have the consequence that s 8(1)(c) had no work to do. This however is not so. It provides a means whereby Australia may obtain the apprehension and the bringing into the territory of Australia of a person on a foreign registered ship which is outside the territory of Australia. It identifies one of the countries to whom a request should be made in such circumstances. Where a person is already in the territory of Australia there is nothing in the Extradition Act which requires Australia to make an extradition request.
In short, it is only if the MV Tampa was a territorial enclave of Norway whilst within Australian territorial waters that there would be any need to have recourse to the Extradition Act or to the Extradition Treaty between Norway and Australia. Whether the ship was or was not a "floating island" of Norway is a question which falls to be answered by reference to the customary rule of international law recognised as part of the common law of Australia and the answer is that there is no rule of international law which is to the effect that persons on board private ships entering Australian territorial waters are immune from local jurisdiction: Chung Chi Cheung v The King [1939] AC 160 especially at 174; Chow Hung Ching v The King [1948] 77 CLR 449
The general rule of international and municipal law is that a State possesses jurisdiction in virtue of its territorial sovereignty over the persons and property of foreigners found within its territory. Chow Hung Ching v The King (supra) per Starke J at 470. Rules of international law have provided limitations and exceptions to that general rule. It would appear to be well settled for example that a foreign warship and its crew will be accorded extra‑territorial immunity while in the territorial waters of another sovereign State the reason being that, if a foreign warship is admitted to the waters of another sovereign State there must be an implication that the officers and crew will not be prosecuted in the local courts in respect of conduct related to the military activities of the ship and its personnel. There is considerable controversy as to how far these immunities extend: Chow Hung Chin v The King (supra) per Starke J at 472; Brownlie: "Principles of Public International Law" (4th ed) 366 ‑ 369. This controversy does not concern us.
The MV Tampa was not a foreign warship nor was it in Australian territorial waters with the consent of Australia. It was a private vessel which sailed into Australian waters against an express request that it not do so. There is no basis upon which persons aboard that vessel who had committed offences against the laws of Australia could claim to be immune from arrest and prosecution. The arrest of the appellants and their removal from the MV Tampa to shore was lawful.
Appeal against sentence
In my opinion the sentences imposed on the appellants were lenient. This was a major people smuggling exercise and the appellants went into it with their eyes open. The money which was offered to them represented a very large amount in the context of their domestic earning capacity as local fishermen. They embarked on a journey which placed the 433 passengers in great jeopardy. The passengers included women and children for whom there was inadequate lifesaving gear. The voyage very nearly ended in great tragedy. The appellant Disun acted as captain of the vessel and liaised with the organisers of the operation. The appellant Nurdin helped to steer the vessel and assisted Disun in the management of the vessel. Both men played a pivotal role in a very large and unsafe exercise of people trafficking prepared to risk their own lives and the lives of the passengers purely for financial gain. The maximum penalty provided for in s 232A of the Immigration Act is 20 years' imprisonment or a fine of $220,000 or both.
The need for general deterrence need hardly be emphasised and the range of other sentencing consideration (as to which see Cita v The Queen (2001) 120 A Crim R 307 and Ilam v Dando (1999) 109 A Crim R 47) clearly indicate that participants in sizeable people trafficking transactions must expect to be punished severely by lengthy prison terms.
A review of similar cases reveals that sentences of 4 years are common for mere crewmen after all mitigatory matters have been taken into account including personal circumstances and a plea of guilty. In this case the crewman Nurdin's personal circumstances are no more deserving of sympathy than those of the offenders in the other cases to which we were referred and he was not entitled to the powerful mitigatory effect of the plea of guilty. A sentence of 5 to 6 years was called for in his case.
The table of comparative sentences provided by Mr Scholz shows that sentences of 7 to 8 years are common for captains (or persons acting in the role of captain) after all mitigatory factors including a plea of guilty are taken into account. As there was no plea of guilty in Disun's case a sentence of 8 to 9 years was called for. In both cases a non‑parole period of approximately 50 per cent of the head sentence would have been appropriate.
It would appear from the Judge's sentencing remarks that although he was well aware of the range of sentences commonly handed down in this kind of case to persons having the respective roles of Disun and Nurdin he was influenced to pass more lenient sentences by the fact that no other boats had arrived off Australia from Indonesia since the arrival of the Palapa. His Honour, it seems, therefore decided that it was not quite so imperative to impose a deterrent sentence. In my respectful opinion, that was not a good reason to extend leniency to these two offenders. If light sentences are passed from now on, the deterrent effect of earlier sentences will be diminished. Furthermore, this was a very large transaction having the bad features which I have already mentioned and which I do not repeat. Any lessening of the need to emphasise general deterrence was more than outweighed by the need to impose an appropriate punishment having regard for the overall criminality involved in the enterprise.
However, this is a Crown appeal against sentence and this Court is bound to exercise restraint before interfering with the original sentence. Crown appeals should be a rarity. They raise considerations which are not present in an appeal by an offender seeking a reduction of sentence. As Isaacs J said in Whittaker v The Queen (1928) 41 CLR 230 at 248 a Crown appeal puts in jeopardy "the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal". As Brennan, Deane and Gallop JJ said in R v Tait (1979) 46 FLR 386 at 389
"the freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court."
This Court has consistently said that it will increase the sentence imposed by the primary sentencing court only in exceptional cases - cases in which it is very clear that the proper administration of justice plainly requires that the sentence be increased.
I am not persuaded that these cases fall into that category and accordingly I joined in the decision to dismiss the Crown appeals against sentence at the conclusion of argument.
TEMPLEMAN J: I agree that the appeals against conviction should be dismissed for the reasons given by Anderson J, which I have had the advantage of reading in draft. I agree also with his Honour's reasons in relation to the sentencing appeals.
I joined in the decision to dismiss the Crown appeals despite the fact that I regarded the sentences imposed by the learned trial Judge as lenient. I took the view that it would be inappropriate to interfere with the sentences because, although they should have been more severe, the reductions which would have been given to take account of the fact that these were Crown appeals, would have produced results sufficiently close to the original sentences as to make it inappropriate to interfere with those sentences.
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