R v Karimi Azar

[2020] NSWDC 265

District Court

New South Wales

Medium Neutral Citation:	R v Karimi Azar [2020] NSWDC 265
Hearing dates:	6 April 2020
Decision date:	07 April 2020
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted. Indicative sentences: Count 1 (008): 8 years with a NPP of 5 years & 3 months Count 2 (016): + s16BA form matters: 10 years with a NPP of 6 years & 6 months Aggregate sentence: Sentenced to a term of imprisonment of 12 years, comprising a NPP of 8 years to commence on 28 October 2014 and 27 October 2022 and a balance of term of 4 years commencing on 28 October 2022 and expiring on 27 October 2026. Back-up charges withdrawn and dismissed.
Catchwords:	CRIMINAL - Sentence – people-smuggling - charges in re 20 passengers– offender’s role as “principal” or ”primary organiser” – limited subjective material – difficulty of assessing prospects of rehabilitation – no remorse and/or contrition – aggregate sentence
Legislation Cited:	Crimes Act 1914 (Cth) Migration Act 1958.
Cases Cited:	Cita v R; Lamaha v R [2001] WASCA 5 Feng Lin (2001) NSWCCA 7 R v Petersen [1984] WAR 329 R v Udin Nursia and Ors (Supreme Court of the Northern Territory Bailey J, 12 January 2000), Xiou v R [2018] NSWCCA 4.
Category:	Sentence
Parties:	Regina Mohammad Naghi Karimi-Azar
Representation:	Counsel: Crown: Mr J Clarke Defence: Ms M Avenell   Solicitors: Crown: Mr S Grodzicki Defence: Mr Sayar Dehsabzi
File Number(s):	2013/00280380; 2014/00035289

Judgment

1. HIS HONOUR: Mr Mohammad Naghi Karimi Azar appears for sentence in respect of two offences contrary to s 233C of the Migration Act 1958.

1. Between 1 September 2011 and 25 August 2012, in Jakarta, Java, and elsewhere in the public of Indonesia, he facilitated the bringing or coming to Australia of a group of at least five persons who are non-citizens and who had or have no lawful right to come to Australia, and that he did so reckless as to whether the same group of persons had or have a lawful right to come to Australia.

2. Is in similar terms, with the exception that it refers to a period between 1 April 2012 and 1 November 2012.

2. The maximum penalty provided by the legislation for such an offence is a maximum of 20 years’ imprisonment.

3. Where the offence is a first offence, the legislation provides that there must be a minimum sentence of five years’ imprisonment with a minimum non-parole period of three years. Where the offence is a second offence of the same nature, the legislation provides that the minimum term of imprisonment is eight years and the minimum non-parole period is five years.

4. When dealing with the offender in respect of the second of those offences, he has asked the Court to take into account a number of matters contained on a Form s16BA pursuant to the Crimes Act 1914. Those offences are, in short, in respect of two time periods, the first being between 1 October 2011 and 9 August 2012, and the second being between 1 November 2011 and 25 March 2013. Each of those offences is contrary to s 233A of the Migration Act 1958. Section 233A offences when dealt with separately carry a maximum term of imprisonment of 10 years.

5. It is relevant in relation to this matter to set out the history.

6. The offender was arrested in Indonesia on 28 October 2014 for the purpose of extradition proceedings. Approximately two years later, on 29 September 2016, he was extradited to Australia. He was committed for trial from the Local Court on 1 September 2017 in respect of 43 charges. A trial which I will refer to as “the first trial” was listed to commence on 13 August 2018 with an estimate of an eight-week duration. An indictment was filed on 25 June 2018 which contained in total 16 counts, being four counts contrary to s 233C and 12 counts contrary to s 233A. There was a callover on 6 July 2018 at which it was indicated that there was an expectation that the Crown would call 60 passenger witnesses from 11 separate Suspected Illegal Entry Vessels (SIEV). It was indicated that there were some difficulties with Legal Aid, but it had been granted, and that there had been a Crown offer for resolution but that offer had neither been accepted nor rejected.

7. On 20 July 2018, the trial date was vacated as there were difficulties in relation to briefing counsel to appear for the offender, and it was indicated by the offender’s then legal representative that there was in effect no possibility of a plea of guilty in respect of the matter.

8. The matter was again mentioned on 10 August 2018, at which time a trial was then listed to commence on 29 July 2019. It was at that time that Ms Avenell, who now appears for the offender on sentence, first appeared in respect of the matter.

9. On 5 July 2019, it was indicated to the Court that the matter had been resolved and a new indictment would be prepared, and the matter was listed for arraignment on 19 July 2019. On 19 July 2019, pleas of guilty were entered to the two counts that I have referred to and the two further matters to be taken into account were provided by way of a Form 16BA tendered in court.

10. As to the additional two matters on the Form 16BA, the first encompassed one matter involving four individuals relating to three separate SIEV vessels, and in respect of the second matter on the form, a further four persons and a further three SIEV vessels.

11. Subsequent to that date, there were a number of mentions while the parties endeavoured to resolve any issues regarding agreed facts. Those issues were resolved, and the matter came before me yesterday, on 6 April 2020, the facts having been agreed, with one outstanding issue which I will deal with shortly.

AGREED FACTS

1. The offender is Mohammad Naghi KARIMI AZAR, born 27 August 1960, an Iranian national, who is also known by the following names 'Nagi, 'Naghi' or Naghi Karimi', 'Mohammad Nagi Karimi', 'Naqi Karimi', 'Karimi', 'Amoui', 'Amoo', 'Amou' and 'Mehmet INANC'.

2. Between 2011 and 2013, the offender was the subscriber and user of Hotmail e-mail account: '[email protected]', a Facebook Social profile account in the name 'Mohammad Naghi Karimi Azar', identification number 100002649984353, and a number of Indonesian and Malaysian telecommunications services. During this time, the offender was predominantly based in Jakarta, the Republic of Indonesia and used his Hotmail account, Facebook account, and telecommunications services in addition to meeting with people face to face as a means to communicate with others as the principal of a people smuggling syndicate, to facilitate and/or organise the arrival of unlawful non-citizens into Australia by SIEVs. The offender worked as a primary organiser with a number of subordinate people smuggling agents including his brother, Abofazl KARIMI AZAR, his wife Soraya, Behrouz FARMANI, based in Iran, persons in Malaysia, persons in Indonesia such as Nima, Matin, 'Hamid' (‘Hamid KEIVAN' or 'Hamid KEYVAN'), Saman - otherwise known as Mohammad Reza FAYAZI (FAYAZI), born 29 March 1989, and others based in Indonesia and Australia.

Count 1- 'SIEV 422'

Milad BOUSHEHRI NEJAD

Arezoo ASKARI KOTOKI

Hamid BOZORGMEHR

Zohreh Sadat ALIZADEH MOUSAVI

Bardia BOZORGMEHR

Behrad BOZORGMEHR

Milad BOUSHEHRI NEJAD and Arezoo ASKARI KOTOKI arrive in Indonesia

3. Sometime around September 2011, Milad BOUSHEHRI-NEJAD (BOUSHEHRI-NEJAD), born 10 July 1986 and Arezoo ASKARI KOTOKI (KOTOKI), born 5 August 1989 both decided to leave Iran with the intention of travelling to Australia to seek asylum.

4. Before leaving, BOUSHEHRI-NEJAD obtained a phone number for a people smuggling agent in Iran who he contacted and spoke with. The agent informed him the cost would be USD $6,000 per person, with USD $1,000 being for the agent’s cost and USD $5,000 for the actual smuggler being the offender whose name was given as 'Naghi Karimiazar' or 'Naghi Karimi' (the offender). The agent gave an Indonesian telephone number for the offender and told him to call him.

5. BOUSHEHRI-NEJAO then telephoned the offender, telling him he wanted to arrange for him and his wife's travel to Australia. The offender informed BOUSHEHRI-NEJAD about the journey which would involve flying to Jakarta, Indonesia, and then catching a big ship to Christmas Island, Australia. The offender informed him the price would be USD $5,000 per person and instructed USD $1,000 would be required upfront for each person to a nominated account in Iran, with the remaining amount paid in Indonesia.

6. Shortly after the conversation, BOUSHEHRI-NEJAO went to the bank and deposited four million Tomans (Iranian currency) into the account nominated by the offender. BOUSHEHRI-NEJAO then contacted the offender and told him about the deposit. The offender instructed BOUSHEHRI-NEJAD to buy his own tickets to Jakarta, Indonesia, and travel straight away as he had reserved seats for him and his wife to leave on a ship departing to Australia the following week. The offender also informed BOUSHEHRI-NEJAD he would pick him up from the airport in Jakarta.

7. In mid-December 2011, BOUSHEHRI-NEJAD and his wife KOTOKI flew on Qatar Airways from Tehran, Iran to Jakarta, Indonesia. Both BOUSHEHRI-NEJAD and KOTOKI arrived in Jakarta airport; however when they arrived, the offender wasn't there as agreed. BOUSHEHRI-NEJAD then bought a SIM card and contacted the offender on the telephone. The offender informed BOUSHEHRI-NEJAD he was busy and couldn't pick them up. He told them to catch a taxi and pass the phone onto the driver so he could provide directions.

8. BOUSHEHRI-NEJAD and KOTOKI then caught a taxi whilst the offender gave instructions to the driver taking them to the 'Moi' Apartments. Upon arriving at the 'Moi' Apartments, 'Hamid' picked them up and took them to the 16th floor of the building where he showed them to a room. 'Hamid' told them another family would later stay with them and the offender would see them that night.

Hamid BOZORGMEHR and his family arrive in Indonesia

9. On or about 1 December 2011, Hamid BOZORGMEHR, born 27 March 1970, (BOZORGMEHR) Zohreh ALIZADEH MOUSAVI, born 27 December 1970 and their two children, Bardia BOZORGMEHR, born 3 July 2003, and Behrad BOZORGMEHR, born 16 October 2006, booked return airline tickets for travel of the family from Tehran to Jakarta via Doha, Qatar. The intention was to travel to Indonesia before going to Australia to claim asylum. Before making arrangements to leave, BOZORGMEHR was in contact with a male person known to him as 'Mr Karimi' (the offender) two or three times on the telephone.

10. During the discussions, the offender told BORZORGMEHR to get to Jakarta as soon as possible as he had a boat ready to go in Indonesia. The offender told him the fee would be USD $5,500 per adult and USD $5,500 for both his children. The offender told him they would negotiate final payment when he arrived in Jakarta. The offender also told him to call him when he arrived in Jakarta and get into a blue taxi. BOZORGMEHR recalled that the offender spoke with a Turkish/Kurdish accent and always used an Indonesian phone number.

11. In mid-December 2011, BOZORGMEHR and his family flew to Jakarta, Indonesia, where upon arriving he gave the taxi driver the phone and called the offender. The offender then gave instructions to the taxi driver who took them to the 'Moi' Apartments.

12. Once they arrived at the apartments, they were met by a person called 'Mehdi the Kurd', whose real name is 'Hamid KEIVAN' or 'Hamid KEYVAN' (Hamid). 'Hamid' took them to an apartment in the complex and informed them another couple would be staying with them.

Milad BOUSHEHRI NEJAD and Arezoo ASKARI KOTOKI meet the BOZORGMEHR family and the offender

13. A short time after returning from the local shops, BOUSHEHRI-NEJAD and KOTOKI met the BOZORGMEHR family back in the apartment.

14. About 9:30pm that evening 'Hamid' brought the offender to their unit where he met BOUSHEHRI­NEJAD and KOTOKI. BOUSHEHRI-NEJAD immediately recognised the offender's voice as the same person he had spoken to on the phone. BOUSHEHRI-NEJAD stated he noticed his strong Kurdish accent.

15. BOUSHEHRI-NEJAD described the offender as aged about 52-53 years old, of Iranian background, and he spoke Farsi. He was quite short, about 160-165 centimetres tall. He had black curly hair that was slightly receding at the front. He described him as having dark coloured skin with hairy arms. He stated he met him many times during the 10-11 months he was in Indonesia and would certainly recognise the offender again if he saw him.

16. KOTOKI described the offender as being between 50-53 years old, Iranian with a Turkish accent, short height, normal size with short black hair and dark brown coloured eyes.

17. The offender introduced himself to BOUSHEHRI-NEJAD and KOTOKI and told them he would send them in a week to Australia by ship before requesting the remaining payment. BOUSHEHRI-NEJAD then went with the offender to the stairwell of the apartments where he paid him about USD $7,000 in cash.

18. About two or three days after the arrival of BOUSHEHRI-NEJAD and KOTOKI, BOZORGMEHR and his wife met the male person who he also knows as 'Naghi Karimi' (the offender) around the swimming pool of the apartment complex. During this meeting BOZORGMEHR discussed with the offender departure times to Australia. The offender informed him it was not a good time to travel to Australia as a boat had just sunk. The offender told him to be patient and he would be on a boat very soon.

BOUSHEHRI NEJAD, KOTOKI, the BOZORGMEHR family and their first departure attempt to Australia on S/EV299

19. BOUSHEHRI-NEJAD, KOTOKI and the BOZORGMEHR family ended up staying in the Moi Apartments for about one month. Sometime in January 2012, the offender visited them again, saying he would promise to send them in a week. The offender continued to provide excuses for their delay, saying the weather was bad and that recently a boat with 230 people had sunk and only 40 survivors were found (nothing to do with the offender). The offender and his associates assured them the boat they would go on would be better quality and would not have as many people. The offender also informed them that the boat they would travel on would have 'his brother' on board.

20. On 16 January 2012, BOZORGMEHR received a telephone call from the offender who told them to pack their belongings and get ready for that evening. About 9:00pm that evening, Hamid and the offender came to their apartment. During that time he stepped out into the corridor with the offender and paid him the remaining USD $6,000.

21. Also that date, BOUSHEHRI-NEJAD and KOTOKI were informed by the offender, 'Hamid' and another passenger agent 'Mansour' to pack their bags and to get ready to depart at 1:00pm the following day. BOUSHEHRI-NEJAD, KOTOKI and the BOZORGMEHR family's belongings were then collected and they were told they would be moving soon.

22. Around 1:00pm the following afternoon, being 17 January 2012, BOUSHEHRI-NEJAD, KOTOKI and the BOZORGMEHR family were picked up in vans and taken to a tourist area in Jakarta where two buses were parked near the 'Al Rahman' mosque.

23. Once on board the bus, BOZORGMEHR met 'Haji Hussein', later identified as Ewaz Ali REZAIE, born 13 February 1967, who arrived on SIEV 299, who BOZORGMEHR thought was the main smuggler and the Indonesian assistant to the offender, and another people smuggler named 'Armando'. Both REZAIE and 'Armando' later travelled separately in a black four wheel drive that followed the buses. Before departing, the offender briefly showed up, telling them to relax and that they would be leaving for Australia soon by boat, herein referred to as SIEV 299.

24. About 3:00pm that afternoon, the buses departed and drove between five-seven hours until the driver of the bus containing the offender's agent Hamid, BOUSHEHRI-NEJAD, KOTOKI and the BOZORGMEHR family pulled over, claiming the engine had broken down.

25. A further three hours passed before BOZORGMEHR called the offender, who told him he had sent another bus that would take them to the meeting point.

26. Sometime around midnight, a second bus arrived and drove for another five hours to the meeting point near the beach. However, when they arrived, 'Armando' was there telling the passengers that the boat had already left and they needed to return to Jakarta as soon as possible.

27. The bus containing BOUSHEHRI-NEJAD, KOTOKI and the BOZORGMEHR family then returned to Jakarta and the Moi Apartments. The offender told them not to worry and promised to send them in another week, and he would provide them with food, water and accommodation until it was ready. The offender said he had been tricked by Haji HUSSEIN and did not realise he would leave them stranded.

28. BOUSHEHRI-NEJAD, KOTOKI and the BOZORGMEHR family remained in the Moi Apartments until 3 February 2012, on which day the offender told them another boat was ready and was leaving very soon. The offender instructed they should remain in the apartments that night.

BOUSHEHRI NEJAD, KOTOKI, the BOZORGMEHR family, a second attempt travelling to Australia with the offender

29. About 11:00am the following morning on 4 February 2012, a number of vans arrived and took BOUSHEHRI-NEJAD, KOTOKI and the BOZORGMEHR family to the Ancol Dreamland Park in Jakarta, where another two buses were waiting.

30. Upon BOUSHEHRI-NEJAD, KOTOKI and the BOZORGMEHR family arriving at the Ancol Dreamland Park, they observed two buses which had mainly Afghani and Pakistani passengers on board (not said by the Crown to be clients of the offender).

31. BOUSHEHRI-NEJAD, KOTOKI and the BOZORGMEHR family boarded a bus which then departed and drove for 11 hours to a point somewhere near Tasikmalaya with the offender following in a black van. When they arrived, they were instructed to get off the bus and told to walk 200 metres into the jungle. BOZORGMEHR recognised that the offender's associate 'Armando' was present during this time. An exchange of passengers on different buses and vans then occurred. BOUSHEHRI-NEJAD, KOTOKI and the BOZORGMEHR family were returned onto the other bus which drove into Tasikmalaya. Their bus was then stopped by a police car and the police then directed the bus with all passengers still on board to return to Tasikmalaya Police Station. Upon arrival the offender spoke to BOZORGMEHR, saying: "Just keep cool. Don't talk to them about me. I'm trying to escape. When I get out I'll help you. If you talk and they know about me I won't be able to help you make it to Australia".

32. The following day, ALDAFAI, GHOLAMPOUR BOUSHEHRI-NEJAD, KOTOKI and the BOZORGMEHR family were moved to another location with the offender and others.

BOUSHEHRI NEJAD, KOTOKI and the BOZORGMEHR family remain in detention

33. One night, during their stay in immigration custody, the offender managed to organise a van through friends in Jakarta, and escaped. A number of others also escaped too. BOZORGMEHR spoke about the incident to AFP agents who attended with Indonesian Police. On 9 February 2012, BOZORGMEHR positively identified the offender to the AFP.

34. A few days later, BOUSHEHRI-NEJAD, KOTOKI and the BOZORGMEHR family were moved to the Kalideres Immigration Detention Centre in West Jakarta, Indonesia, where they stayed for the next five months. About three months into the detention, BOUSHEHRI-NEJAD and BOZORGMEHR managed to get in contact with the offender and threatened to report him to the police. However, the offender warned them that if they wanted to still make it to Australia they should keep quiet.

35. Towards the end of June 2012, BOUSHEHRI-NEJAD, KOTOKI and the BOZORGMEHR family were released from the Immigration Detention centre.

The BOZORGMEHR family make another attempt to travel to Australia from 'Serang', Indonesia

36. During July 2012, the BOZORGMEHR family remained in the Jakarta/Bogor area. One night, the offender called BOZORGMEHR, instructing them to return to Jakarta at the Mediterranean Apartments.

37. The BOZORGMEHR family returned to the Mediterranean Apartments, and the following day they were instructed by the offender on the phone to get in the van waiting downstairs.

36. The BOZORGMEHR family were picked up in a van and driven for about 11 hours to a village. In the village they switched vans which took them to a beach house near Serang, West Java.

37. A short time later, the BOZORGMEHR family boarded a boat which started moving through a canal out to sea. After about one hour, the boat began to break down and leak due to the waves and was forced to return back to shore.

38. When BOZORGMEHR and his family reached the shore they were arrested by Police and taken to accommodation in Serang for about two weeks before they were released.

39. BOZORGMEHR and his family then returned to Bogor where they maintained contact with the offender who organised one of his assistants to move them to a villa in Cisarua.

BOUSHEHRI NEJAD and KOTOKI make another attempt travelling to Australia from Surabaya, Indonesia

42. During July 2012, BOUSHEHRI-NEJAD and KOTOKI were becoming desperate, and they contacted the offender to try again for Australia by boat. The offender assured them he had found a new way. The new way was from Surabaya and he was now working with an Iraqi smuggler known as 'Oday'. BOUSHEHRI-NEJAD and KOTOKI later identified a photograph of the person he knew as 'Oday', being Sydney resident Ali YOUSSEF, born 28 February 1981, in an AFP photo board.

43. BOUSHEHRI-NEJAD met Oday about three times. BOUSHEHRI-NEJAD and KOTOKI were then instructed to catch a train to Surabaya where they were picked up in a van. The van drove for about three hours before stopping outside a police station. They both managed to run away and escape before once again returning to Jakarta.

44. On the way to Jakarta, they telephoned the offender, who told them to return to Surabaya and stay at a safe house in a nearby town called 'Malang'. They stayed at the villa for approximately two or three days.

45. On 22 July 2012 a Facebook conversation occurred between the offender and an Arash Gharavi:

Arash Gharavi: Hello Mr Karimi. I hope you are fine. God willing all the problems will be sorted out and very soon you will return with lots of money. Here everything is under control. There is no news except for people's misery which is getting worse.

46. One night during their stay at the villa, BOUSHEHRI-NEJAD and KOTOKI were picked up and taken to a beach where they boarded a boat. BOUSHEHRI-NEJAD recalled there were other people comprising of mainly Iranians and Iraqis (not the offender's clients).

47. Between 2:33am and 2:50am Jakarta time on 24 July 2012 a Facebook conversation occurred between the offender and an Abbas Karim:

Abbas Karim: I have 5 or possibly more passengers for you, but this time I will help them to get visa in Iran

The offender: I have sent the kids they're gone

Abbas Karim: I have heard that you are sending them the long way around, is that correct?

The offender: Yes

Abbas Karim: How many days will take for them to get there?

The offender: 3 or 4 days

48. Sometime that evening the boat departed, however the following day the engine broke down and they were stranded for several days before the boat finally sunk near an island. BOUSHEHRI-NEJAD and KOTOKI managed to swim to shore and seek refuge on the island before eventually being picked up by police and brought back to Surabaya.

49. Upon being brought back to Surabaya, BOUSHEHRI-NEJAD and KOTOKI managed to escape from the police and eventually returned to Jakarta by bus organised by the offender. Back in Jakarta, the offender arranged for them to stay at the 'Gardiniaz Apartments' where they stayed for a period of time.

BOUSHEHRI NEJAD, KOTOKI and the BOZORGMEHR family are reunited and SIEV 422 departs

50. By early August 2012, BOUSHEHRI- NEJAD, KOTOKI and the BOZORGMEHR family had all returned to Jakarta or in a nearby area in Cisarua, Bogor. Throughout August 2012, all of them maintained contact with the offender to seek updates.

51. On 21 August 2012, BOUSHEHRI-NEJAD, KOTOKI and the BOZORGMEHR family were all instructed to remain in Jakarta at their apartments, as he (the offender) was going to 'move' them.

52. About 7:00pm on the evening of 22 August 2012, the offender contacted BOUSHEHRI-NEJAD, KOTOKI and the BOZORGMEHR family and arranged vans for them and to be collected. The vans then drove them for three hours to a beach in a small bay. At the beach they boarded small boats which took them to a bigger boat, herein referred to as SIEV 422.

53. About 10:30pm or 11:00pm that evening, SIEV 422 departed for Christmas Island, taking about 54 hours.

54. At 7:13am (Christmas Island time) on 24 August 2012, SIEV 422 was boarded by HMAS MELVILLE 128 NM from Christmas Island in the vicinity of Tg Layar, West Java, Indonesia, after responding to a request for assistance. At the time the vessel was carrying 2 Indonesian crew and 82 passengers including BOUSHEHRI-NEJAD, KOTOKI and the BOZORGMEHR family.

55. Upon interception, RAN personnel from HMAS MELVILLE observed SIEV 422 was overcrowded, structurally unsound and taking on water. RAN personnel also determined SIEV 422 was unseaworthy and slowly sinking. A short time later, the passengers from SIEV 422 were then conveyed to Christmas Island.

56. Upon arriving into Christmas Island, the AFP took a number of photographs of property found in possession of passengers on board SIEV422. These photographs included several items belonging to BOZORGMEHR, one of which was notepaper which had a written phone number: '021131701735'. BOZORGMEHR indicated this was the telephone number he knew for 'Naghi Karimi' (the offender).

57. When providing a witness statement to the AFP, BOUSHEHRI-NEJAD, KOTOKI and BOZORGMEHR participated in a photo board procedure where they positively identified the photograph of the offender whom they knew as 'Naghi Karimi'.

58. At no stage were any of the six passengers from SIEV 422, who are all unlawful non-citizens, asked by the offender if they had a valid visa authorising them to travel to, enter or stay in Australia. None of these persons had ever applied for (nor in the case of the children, was an application made on their behalf) a valid visa authorising them to travel to, enter or stay in Australia.

Count 2 - SIEV 510

Morteza VAGHOBZADE MOUSA

Maryam MOHABATPOOR

Mehrdad MOBARAKI

Melika MOBARAKI

Ali TAKHIFI

Zohreh HADELI

Fatemeh HASSANI

Negin ALIZADEH

Rahmattaleh HAKIMI

Taweba HAVATI

Sara HAKIMI

Mohammad Medhi REZAEI

Hussain PARAKHAMI

Aghil Ibrahim JADERI

The arrival of Morteza YAGHOBZADE ERDE MOUSA into Indonesia

59. In March 2012, Morteza YAGHOBZADE ERDE MOUSA (MOUSA), born 7 September 1981, based in Iran, telephoned the offender, whom he knew as 'Arnau', 'Naghi Karimi' and 'Amou Karimi' after hearing from a friend he was someone who lived in Indonesia and could provide advice about travelling to other countries and make arrangements.

60. During the conversation MOUSA informed the offender he wanted to travel to Australia. The offender told him he could make arrangements for a fee between USD $8,000 and USD $10,000, which included all expenses from Iran. The offender explained to MOUSA about the trip which included travelling to Indonesia and boarding a boat that would sail to Australia. MOUSA and the offender agreed on a price of around USD $7,000 which MOUSA later paid directly to an associate of the offender in Iran. Between March and August 2012, the offender and MOUSA had approximately nine telephone conversations discussing arrangements. On each occasion MOUSA observed the offender spoke Farsi with a Turkish accent, had a soft or gentle male voice and spoke in a manner that was polite.

61. Around mid-August 2012, MOUSA departed Iran to Jakarta, Indonesia. Upon arriving at the airport, he contacted the offender on the telephone who then provided instructions to a taxi driver to take him to the 'Gading Icon' Apartments. At these apartments, MOUSA met FAYAZI, known to him as 'Sam' or 'Saman'. FAYAZI informed MOUSA he would be departing in around a week's time and then showed him to his room.

62. About two days after arriving, MOUSA received a call from the offender who informed him that he would be leaving soon. The offender also stated that he was arranging for him to travel on a good boat and was waiting for the right time to take him to Australia. The offender instructed MOUSA not to make problems that would attract police attention and to not tell anyone he was a smuggler as information may be leaked. MOUSA was to later stay in the apartments for a further month until being moved to the Mediterranean Apartments with others.

The arrival of the MOBARAKI family into Indonesia

63. Sometime around March or April 2012, Maryam MOHABATPOOR (MOHABATPOOR), born 28 May 1983, and Mehrdad MOBARAKI (MOBARAKI), born 30 July 1981, both decided to leave Iran with their daughter Melika MOBARAKI, born 5 March 2010, with the intention of travelling to Australia to seek asylum.

64. Prior to leaving, MOBARAKI obtained a telephone number for a male person in Iran who worked for a people smuggler in Indonesia. MOBARAKI negotiated with the male person who informed him he would be going to Jakarta via Malaysia and Bali for one night. The male person then provided MOBARAKI with the details of a travel agency in Tehran where he was to buy his own tickets to Bali and Jakarta.

65. Several days later MOBARAKI purchased airline tickets which included him, his wife MOHABATPOOR and their child, Melika Mobaraki. He was provided with the hotel details in Bali as well as banking details and a phone number for the smuggler associate, named 'Saman' (FAYAZI). The male person informed MOBARAKI that 'Saman' would take over and organise everything upon arrival.

66. Around the beginning of September 2012, MOBARAKI and his family departed Iran to Bali via Malaysia. The following morning they travelled onto Jakarta. Around 3 September 2012, they arrived into Jakarta airport. MOBARAKI then bought a SIM card at the airport and contacted FAYAZI. FAYAZI instructed MOBARAKI to find a taxi and pass the phone to the driver who he would provide directions to. MOBARAKI and his family then found a taxi driver who FAYAZI directed to an apartment. Upon arrival, MOBARAKI and his family met FAYAZI who directed them to several rooms.

67. A day after arriving, FAYAZI came to MOBARAKl's room and had a conversation with him. FAYAZI asked MOBARAKI for the remaining USD $9,000 which was payment for being smuggled by boat from Indonesia to Australia. MOBARAKI then paid FAYAZI the USD $9,000 in cash. FAYAZI took the money and informed the family they would be staying in the apartment for a further week.

68. Approximately one or two weeks later, FAYAZI returned to the apartments and asked them to pack their belongings. FAYAZI told them to get a taxi and go to the 'Vismagadin' Apartments about 30 minutes’ drive away. Upon arrival at the apartments, MOBARAKI and his family were received by a male person named 'Amir'. 'Amir' then led MOBARAKI and his family to their rooms.

69. 'Amir' and FAYAZI came to visit MOBARAKI and his family on various occasions for about 25 days. During this period, the offender visited their apartment complex with FAYAZI. The offender was known as 'Karimi'.

70. On this occasion, the offender addressed MOBARAKI, his family and others saying: "In this matter, we cannot give you a date and time. When everything is prepared as it is supposed to be, that is the time we will send you, and then you will be intercepted, and then it will continue from there. I am responsible for getting you on the boat, and when you are on the water my responsibility is over."

71. MOBARAKI described the offender as aged approximately 45-47 years old, Mediterranean complexion, medium build, thin receding hairline at the front with short, slightly wavy and dark but greying hair at the back and sides, about 160-165 centimetres high, clean shaven, of Iranian/Turkish (Azari) nationality and wearing a business shirt and jeans with dress shoes and a thick gold chain around his neck.

72. Several days later, FAYAZI provided 100 Indonesia Rupiah for food to each of the families staying at the apartment.

73. At 12:34pm UTC on 22 October 2012, a Facebook conversation occurred between the offender and Parastoo ZAREIE (who is not in Indonesia), a relative of the MOBARAKI family, which included:

Parastoo Zareie: My dear, I have a lot of my family members over there. Let's wait till they get here alright.

The offender: OK but they won't stay here for long. God willing they will be there by next week.

The arrival of the TAKHIFI family into Indonesia

74. On 4 July 2012, Ali TAKHIFI (TAKHIFI), born 29 June 1993, his stepmother Zohreh HADELI (HADELI), born 23 April 1968, his sister Fatemeh HASSANI, born 17 February 1985, and niece, Negin ALIZADEH, born 23 June 2009, travelled together from Iran to Jakarta, Indonesia with the intention of travelling to Australia to seek asylum. Prior to leaving, HADELI spoke with a male person whom they knew as 'Karimi' (the offender), on the phone. The offender gave them instructions to fly to Jakarta, and when they arrived to buy a SIM card and travel to the 'Gardin Niaz' Apartments.

75. Upon arriving in Jakarta, HADELI contacted the offender, who provided instructions to their taxi driver. The TAKHIFI family arrived at the 'Gardin Niaz' Apartments where they were met by 'Navid', an associate of the offender, who led them to their room. A short time later, HADELI and TAKHIFI met the offender who collected the payment of USD $6,000 per person from the family.

76. TAKHIFI described the offender as aged between 53-54 years old, 150-160 centimetres tall, large stomach, clean shaven, with black hair with a salt and pepper look, who was wearing a blue and white business shirt and trousers. TAKHIFI observed the offender spoke Farsi with a Kurdish accent.

77. Approximately two weeks later, the TAKHIFI family were collected by vans and taken to a nearby train station. They boarded the train and travelled to the south of Jakarta for about eight/nine hours before arriving at another station. The TAKHIFI family were then collected by other vans. The TAKHIFI family were told by associates that the vans would take them to the shore where their boat was waiting. However, whilst travelling, the drivers stated they were concerned of the danger of the journey and stopped. Around midnight during the journey, the Indonesian police arrived and took the TAKHIFI family and others to a nearby Police Station. The TAKHIFI family were later moved to an Immigration Detention Centre and several days later, on 20 July 2012 the TAKHIFI family were deported back to Iran where they stayed for about 40 days, making arrangements to return to Indonesia.

78. On 13 August 2012, the offender sent an email from his Hotmail account containing scanned Iranian passport images for TAKHIFI and stepmother Zohreh HADELI to a 'Sayed Kamran Hashemi', [email protected]. This email address ([email protected]) was subsequently located handwritten in Farsi in a small black notebook seized from the offender upon his extradition to Australia on 29 September 2016. The address was next to the name 'Seyed Hashemi email; Casablanca Anjou agency'.

79. By the end of September 2012, the TAKHIFI family had made negotiations to return to Indonesia. On 28 September 2012, TAKHIFI sent an email to the offender with the scanned Iranian passports for his family.

80. On 1 October 2012, the Defendant sent an email using his Hotmail account to 'Bezad ZAHED', [email protected] requesting that he issue 'nominal return tickets' to Bali for Ms TAKHIFI (aka HADELI) and others.

81. 81. On 3 October 2012, the offender forwarded an email containing the TAKHIFI/HADELI/ALIZADETH's scanned passport images to 'Amir' at [email protected]. The email stated: Hi, Amir, in case is required, make and print & give them to Mr Wagiuna.

82. On 9 October 2012, the offender was sent an email from '[email protected]' containing a scanned Emirates Airlines itinerary for TAKHIFl's sister, Fatemah HASSANI and niece Negin ALIZADEH, which showed their departure from Iran on 11 October 2012 arriving into Jakarta on 12 October 2012.

83. On 11 October 2012, the offender forwarded the itinerary and HASSANI and ALIZADEH's scanned passport images to 'Amir' in preparation for their arrival.

84. By 12 October 2012, the TAKHIFI family returned to Jakarta, Indonesia, and returned to the Mediterranean Apartments as organised by the offender and others.

The arrival of the HAKIMI family into Indonesia

85. On 20 August 2012, Rahmattaleh HAKIMI (HAKIMI), born 18 December 1972, his wife Tayyeba HAYATI, born 7 December 1976 and his daughter Sara HAKIMI, born 6 November 1996, left Iran, flying to Indonesia with the intention of seeking asylum in another country.

86. After arriving in Indonesia, HAKIMI was introduced to a male person known to him as 'Saman' (FAYAZI). FAYAZI informed him it would take two or three years if they sought refuge with the United Nations (U.N.) and said he could assist by organising them on a boat leaving for Australia in about 10-12 days. FAYAZI told him his supervisor's name was 'Karimi' (the offender) and that it would cost USD $6,000 to USD $7,000 per person.

87. One or two days later, the offender, introducing himself as 'Karimi' called HAKIMl's wife (HAYATI) and told them a boat was leaving in seven days. The offender continued to call them over the following days, trying to persuade them to get on a boat. During this time FAYAZI also persisted in calling them and came around several times to their hotel.

88. Four or five days later HAKIMI finally accepted the offer put forward by the offender. The offender advised he would relocate them to elsewhere. The following day, FAYAZI moved them to the 'Godijniaz' Apartments in Jakarta. FAYAZI later returned to their apartments where he called the offender and gave HAKIMI the phone. The offender told HAKIMI he wanted to come himself but could not and told HAKIMI to give the money to FAYAZI so he could organise HAKIMl's family to be sent to Australia. HAKIMI told the offender he only had USD $5,000 on him, however the offender advised him to give the USD $5,000 to FAYAZI and he would come and talk to him later. HAKIMI then gave the USD $5,000 to FAYAZI. HAKlMI and his family stayed in the apartments for about 10- 12 days before FAYAZI arrived telling them to move to another apartment.

89. In the beginning of October 2012, HAKIMI and his family moved to another set of apartments. During this time, FAYAZI introduced HAKIMI to 'Karimi' (offender). HAKIMI immediately recognised the offender's voice as the same male person on the telephone he knew as 'Karimi'. HAKIMI described the offender as an Iranian male aged around 54-55 years old, shorter than him and about the same height as his shoulders. HAKIMI estimated him to be around 174-175 centimetres tall, of medium build, short black hair, black eyes, white skin with a moustache and stubble. HAKIMI stated he would recognise him again if he saw him. HAKIMI stated the offender spoke Farsi and appeared to be from Tehran. HAKIMI stated the offender made a few phone calls speaking in Indonesian and then told him he would arrange everything really quickly to send his family.

90. Over the next few days the offender called HAKIMI, asking for a further USD $5,500-$6,000 per person. However, HAKIMI kept telling the offender he only had USD $5,000. The offender didn't believe HAKIMI and they ended up having an argument resulting in HAKIMI demanding his money back. The offender agreed to the request and in return demanded he vacate the apartment. Despite the argument, the offender never returned HAKIMl's money and he and his family remained in the apartments. After several phone calls, the offender accepted that HAKIMI and his family did not have more money. HAKIMI and his family were then moved by the offender and FAYAZI to some other apartments where they waited for a further one month. During that time a number of other passengers staying at the hotel began complaining to the offender about the delay. The offender gave excuses such as the Captain's mother had passed away, or the boat's engines were not working.

The arrival of Mohammad Mehdi REZAEI into Indonesia

91. Around September 2012, Mohammad Mehdi REZAEI, born 29 November 1984, decided to leave Iran to seek asylum in Australia. Prior to leaving, REZAEI started speaking with his friend 'Afshar' who told him about a person named 'Karimi' who smuggled people to Australia. 'Afshar' indicated he would give REZAEl's phone number to ‘Karimi’.

92. The following day REZAEI received a telephone call from the offender using an Indonesian phone number and introduced himself as 'Karimi'. The offender said he was in Indonesia and asked REZAEI if he had decided to go to Indonesia.

93. REZAEI negotiated with the offender a fee of USD $5,000 for the journey. REZAEI agreed he would deposit USD $2,000 into the offender's Iranian bank account and would pay the remaining amount in Indonesia. REZAEI recalled the name of the Iranian bank account which he later deposited money into was 'Naghi Karimi Azar'. The offender then told him to visit a specific travel agent in Tehran and said they would know what to do. REZAEI went to the travel agent who asked him to pay one million Toman (Iranian currency) for the price of the airline ticket.

94. About 24 to 48 hours after visiting the travel agent, REZAEI received a call to collect his tickets. The following day REZAEI collected his tickets and was given a voucher for one week's accommodation in Bali. The travel agent also told REZAEI to buy a SIM card in Bali so he could contact the offender there.

95. Around 20 September 2012, REZAEI flew to Bali, Indonesia transiting through Kuala Lumpur, Malaysia. When REZAEI arrived in Bali he purchased a SIM card and caught a taxi to a cheap hotel.

96. The next morning REZAEI received a phone call from the offender, who was angry that REZAEI had not contacted him earlier. The offender then told him to buy an airline ticket to Jakarta and told REZAEI he would provide more instructions when he arrived.

97. REZAEI then bought an airline ticket and flew to Jakarta, where he contacted the offender. The offender told REZAEI to catch a taxi and hand his phone to the driver so he could provide instructions to take REZAEI to an apartment complex.

98. REZAEI arrived at the apartment complex and went to the 17th of 18 floors where he met the offender just outside the lift. The offender then introduced himself as 'Karimi'. REZAEI described the smuggler as an Iranian male, aged about 40 years old, between 165-170 centimetres tall, slightly overweight, dark olive skin, clean shaven, short black wavy hair, no jewellery or glasses, and wearing shorts and a singlet. REZAEI stated he would recognise that person if he saw him again.

99. The offender let REZAEI inside his unit where he introduced FAYAZI, known to REZAEI as 'Saman'. The offender told REZAEI that FAYAZI would take him to his accommodation. REZAEI then paid the offender the remaining USD $3,000 and left with FAYAZI to new accommodation at a building named 'Goding Niyaz'. REZAEI stayed in these apartments for about three weeks before being moved to the Mediterranean Apartments under the instruction of FAYAZI.

The arrival of Hussain PANAHKHANI into Indonesia

100. On 16 September 2012, Hussain PANAHKHANI (PANAHKHANI), born 27 April 1977, departed Iran to Jakarta, Indonesia attempting to travel to Australia to claim asylum. Whilst on the flight to Jakarta, PANAHKHANI met two other Iranian males also intending to claim asylum in Australia. Both men had phone numbers for a people smuggler called 'Naghi Karimi (the offender)'.

101. Upon arriving at the airport PANAHKHANI followed the two males into a taxi which took them to the 'Godingnias' Apartments. Upon arrival PANAHKHANI met FAYAZI, known to him as 'Saman' who introduced himself as someone who worked for the offender. PANAHKHANI informed FAYAZI that he wanted to travel to Australia. FAYAZI asked for USD $7,000, however PANAHKHANI negotiated FAYAZI to USD $5,000 which included the apartment and safe travel to Australia. PANAHKHANI paid FAYAZI the money and was allocated a room. PANAHKHANI stayed in the accommodation for several weeks until he was moved to the Mediterranean Apartments.

The arrival of Aqhil Ibrahim JADERI into Indonesia

102. Sometime during September 2012, Aghil Ibrahim JADERI (JADERI), born 11 November 1970, met with a people smuggler in Iran named Mojtaba EBADI (EBADI). EBADI stated he was able to send people to Australia. Through EBADI, JADERI was able to get in contact with another agent in Iran named Abu Ahmad SHAMMARI. After paying SHAMMARI money he obtained a fraudulent passport and an airline ticket to Malaysia.

103. JADERI then flew to Malaysia and went to a hotel where he met EBADI. JADERI stayed in the hotel for about 5 days. In the hotel JADERI paid EBADI USD $3,500. EBADI gave him a contact number for a 'Heydar' and told him to contact 'Heydar' when he arrived in Indonesia.

104. One day in September 2012, JADERI was smuggled by EBADI to Sumatra, Indonesia by boat. Once in Sumatra, JADERI flew to Jakarta where he contacted 'Heydar'. 'Heydar' instructed him to go to Bogor. JADERI travelled to Bogor picking up 'Heydar' on the way. Once in Bogor, JADERI stayed in a villa for about 35 days.

105. In early October 2012, 'Heydar' gave JADERI a telephone number for the offender, known to him as 'Naghi Karimi', who 'Heydar' said would take him to Australia. JADERI telephoned the number and spoke to the offender who introduced himself as 'Karimi'. JADERI told the offender he was 'Heydar's' and 'EBADl's' passenger. The offender then instructed him to return from Bogor and stay at the 'Mediterranean' Apartments in Jakarta.

106. During JADERl's stay at the Mediterranean Apartments, JADERI met the offender on two occasions. On the first occasion the offender introduced himself as 'Naghi Karimi'. The offender told him they had arrived in Jakarta late so he would have to wait some time before they left for Australia. The offender also told him he had received the money paid in Iran by JADERI but he could have it returned if he did not want to wait.

107. JADERI met the offender a second time on 12 days into his stay at the Mediterranean Apartments. On that day, the offender came to his apartment and told him start packing soon as they were moving. JADERI noticed the offender always had two men with him, one being FAYAZI, known to him as 'Saman' (FAYAZI) and another male who he didn't know.

108. JADERI described the smuggler as a male person of Iranian appearance aged around 45-47 years old, about 170-175 centimetres tall, fat with a belly, short black hair, black eyes, clean shaven, olive skin. JADERI recalled the offender spoke Farsi and wore a thick gold necklace and watch. He stated he would recognize him if he saw him again.

The lead up to the departure of SIEV 510

109. On 3 August 2012, the offender received five separate emails on his Hotmail account from 'bian' [email protected] all containing images of Indonesian fishing vessels commonly used as SIEVs.

110. On 13 August 2012, the offender received an email on his Hotmail account from 'bian' containing another image of a fishing vessel commonly used as a SIEV.

111. On 15 August 2012, the offender received two emails on his Hotmail account from 'bian' containing images of a fishing vessel commonly used as a SIEV.

112. Between 6 and 8 October 2012, the offender exchanged several emails from his Hotmail account with a 'Kerman Komatsu' containing a list which included maritime engine parts. The offender then forwarded the list by email to 'Amir'.

113. On 9 October 2012, a Facebook conversation occurred between the offender and 'Arash Gharavi' during which the following was said:

Arash Gharavi: ...I provide Indonesian wooden goods from the grand market for my business. Indonesian wooden goods have a good market, but the biggest problems are lack of capital to provide those good for customer's demands.

The offender: I will earn this money from people who want to go to Australia.

The offender then continued to ask for examples of his work to be sent to his email address, [email protected].

The departure of SIEV 510

114. Around 25 October 2012, FAYAZI came to the 'Mediterranean Apartments' and took REZAEI, ZANGUIE and other passengers’ mobile phones.

115. About 26 October 2012, FAYAZI came to the apartment where PANAHKHANI, MOBARAKI and his family were staying and called a big meeting with the passengers. FAYAZI informed everyone they would be leaving that day and to pack their things and be ready. FAYAZI instructed them to pack light because the captain would throw any excess items overboard. FAYAZI also stated to wrap essentials in plastics and to throw their passports in the ocean once on the high seas, as if they arrived in Australia with passports they may be deported to Iran. FAYAZI then took a number of mobile phones belonging to the passengers and left the apartment.

116. Around 27 October 2012, 'Amir' came to the apartments where MOBARAKI and his family were staying and guided a number of the passengers to vehicles waiting in the car park.

117. That same morning, FAYAZI called the TAKHIFI family, JADERI, REZAEI, PANAHKHANI, all of whom were staying at the same apartments, and instructed them to go to the same car park. In the car park, all of the singles and families were divided into different cars driven by Indonesian drivers.

118. The vehicles departed from the 'Vismagadin' and 'Mediterranean' Apartments and elsewhere and drove for about 10 hours, passing through Bandung before arriving at a village.

119. At the village, all of the passengers began walking on a track through muddy jungle up a steep hill which led to the shore. Upon arriving at the shore, seven or eight small boats then took all the passengers to a larger boat, herein referred to as SIEV 510.

120. About three or four hours later SIEV 510 departed. SIEV 510 was crowded and did not have enough life jackets for the number of persons on board. There were two Indonesian crew on-board, being the captain and his son.

121. At 3:24am (Christmas Island time) on Tuesday 30 October 2012, a Facebook conversation occurred between the offender and Parastoo ZAREIE discussing the TAKHIFI family.

The offender: Hi beautiful Samira and the rest are on the water right now they will be there by Wednesday morning God willing let us know ASAP lots of kisses.

122. SIEV 510 then continued for about 36 hours,= until about 2:00am one morning; the Indonesian captain approached a passenger and asked him to call the Australian authorities using a satellite phone. The passenger told the Indonesian captain he didn't have a phone. The Indonesian captain told the passenger that the offender had informed him that there was a satellite phone held with the offender's cousin who was on board the boat. It was given to him by one of the people smuggling agents shortly before departure.

123. During the day on 30 October 2012, SIEV 510 passed an American flagged boat that happened to be passing by. Several of the passengers jumped into the ocean in an attempt to swim to the other boat. The American flagged boat then contacted Australian authorities.

SIEV 510 is intercepted by the Royal Australian Navy and arrives in Australia

124. About 4:00pm that afternoon (Christmas Island time), HMAS MARYBOROUGH was informed by the Rescue Coordination Centre (RCC) of a vessel in distress, being SIEV 510.

125. At 4:06pm that afternoon (Christmas Island time) a Facebook conversation occurred between the offender and Parastoo ZAREIE, further discussing the TAKHIFI family:

The offender: Hi Samira will reach Christmas within four hours respond urgently

126. At 8:48am (Christmas Island time) that same morning, RAN personnel from HMAS MARYBOROUGH gained visual contact of SIEV 510, 121 NM from Christmas Island. RAN personnel observed SIEV 510 was stopped and drifting.

127. At 9:51am (Christmas Island time) that morning, HMAS MARYBOROUGH boarded SIEV 510 and identified a number of passengers and 2 crew on board. Upon boarding, RAN personnel observed the vessel was in very poor condition, overcrowded with insufficient numbers of lifejackets, no navigational equipment, the engine unserviceable and no fuel left or battery power to restart. RAN personnel also observed SIEV 510 taking on water at 5-10 litres per minute from the stern engine shaft. A number of the passengers were observed to be suffering from exposure and had little food or water.

128. At 2:05pm (Christmas Island time) that morning, all passengers from SIEV 510 were transported onto HMAS MARYBOROUGH.

129. At 2:41pm (Christmas Island time) that afternoon, HMAS MARYBOROUGH arrived on Christmas Island with the passengers from SIEV 510.

130. At 3:43pm (Christmas Island time) that afternoon, a Facebook conversation occurred between the offender and Parastoo ZAREIE after referencing the TAKHIFI family:

Parastoo ZAREIE: Thanks my lovely they all arrived safe and sound.

131. Upon arriving into Christmas Island, the AFP took a number of photographs of property found in possession of passengers on board SIEV 510. These photographs included a piece of paper containing Farsi handwriting of the name 'Karimi' next to the number '02131701735' (offender); and a piece of paper containing Farsi handwriting of the number '00622192605717' (the offender) in the possession of Zohreh HADELI from the TAKHIFI family.

132. At 4:16am UTC on 23 November 2012 a Facebook conversation occurred between the offender and Alex Amirabad, which included:

The offender: Right now I am in Indonesia and I send people to Australia.

133. Between 2:34pm and 3:06pm UTC on 23 November 2012, a Facebook conversation occurred between the offender and a Hassan ERFAVIAN which included:

Offender: I sent you a photo of the last boat. God willing I will send another boat next week

ERFAVIAN: Thank God hopefully this one will get here safe and sound too.

134. During the taking of witness statements, HAKIMI, TAKHIFI and PANAHKHANI participated in a photo board procedure where they positively identified the picture of the offender as their people smuggler, 'Naghi Karimi'.

135. At no stage were any of the passengers named above in respect of SIEV 510, who are all unlawful non­citizens, asked by the offender if they had a valid visa authorising them to travel to, enter or stay in Australia or had ever applied for a valid visa authorising them to travel to, enter or stay in Australia.

Schedule 16BA passengers

(First entry)

Mehdi SAMIEE - SIEV 276

136. On 12 October 2011, Mehdi SAMIEE (SAMIEE), born 28 June 1980, departed Iran travelling to Jakarta, Indonesia. with the intention of travelling to Australia to claim asylum.

137. In Jakarta, SAMIEE spoke to a friend and asked him to contact him if he was able to find a people smuggler. About two to three days later his friend rang him and told him that a 'Mr Karimi' (the offender) wanted to see him if he had the money and could pay.

138. SAMIEE then had a telephone conversation with the offender who told him to "take a taxi and go to Jakarta". The offender text messaged SAMIEE (in Indonesian) an address which he showed the taxi driver. SAMIEE travelled in a taxi to a place in Jakarta which he recalled was a cross street with traffic lights where he waited.

139. Between 7:00 and 8:00pm that evening, SAMIEE was approached by the offender who introduced himself as 'Mr Karimi'. The offender said: "Give me the money, tomorrow morning I will send you to Christmas Island".

140. The offender then took SAMIEE to the Mediterranean Hotel where he saw other people whom he described as travelling to Australia. SAMIEE observed they were ready to go and their luggage had already been taken. SAMIEE was told by the others (not connected with offender) they were going that night or tomorrow.

141. Upon seeing the others ready to leave, SAMIEE decided to pay the offender. SAMIEE stayed overnight at the hotel and the following morning paid the offender between USD $4500 - $5000 cash. The offender counted the money in front of SAMIEE and didn't say anything. At no stage did the offender ask if SAMIEE had a passport or valid visa to enter or remain in Australia. SAMIEE did not see the offender again.

142. SAMIEE described the offender as an Iranian male. He stated the offender spoke Farsi with a Turkish accent and he would recognize him if he saw him again. SAMIEE also recalled the offender was also known as 'Naghi Karimi', had telephone contacts as '2193189521' and '8128682572', had an email address '[email protected]' and a website ' which he recorded and kept on a piece of paper.

143. About half an hour after paying the offender SAMIEE went to the lobby where he and others were then picked up in taxis and driven to a national park in Jakarta. In the park they boarded two big buses with Indonesian drivers who took them on 12 hours driving before arriving at a beach. At the beach, SAMIEE boarded a small boat which took him to a larger boat, herein referred to as SIEV 276, with three Indonesian crew members on board. SAMIEE had his mobile phone taken by agents of the offender before departing. SIEV 276 then left and travelled for about 32 hours.

144. About 8:55am (Christmas Island time) on 8 November 2011, HMAS PIRIE was notified of a Contact of Interest (COI), being SIEV 276, 8 NM away and travelling towards Christmas Island.

145. At 1:20pm (Christmas Island time) on 8 November 2011, SIEV 276, a wooden Indonesian fishing vessel, was boarded by HMAS PIRIE. At the time the vessel was carrying 3 Indonesian crew and 54 passengers including SAMIEE.

146. Upon arriving into Christmas Island, the AFP photographed property found in the possession of passengers. The AFP took three photographs of pieces of paper found in possession of SAMIEE, one of which had written on it the offender's email address: '[email protected]' and website '

147. SAMIEE later provided two witness statements and positively identified the photograph of the offender on a photo board as the person whom he knew as 'Mr Karimi' or 'Naghi Karimi'.

148. At no stage was SAMIEE, who was an unlawful non-citizen, asked by the offender if he had a valid visa authorising him to travel to, enter or stay in Australia.

Koorosh TAHERABADI - SIEV 299

149. On 13 December 2011, Koorosh TAHERABADI (TAHERABADI), born 15 February 1987, left Tehran, Iran, travelling to Jakarta, Indonesia, with the intention of travelling to Australia to claim asylum. Before leaving Iran, he obtained a telephone number from a friend for a person called 'Peyman Rasouli' whom he learnt worked for a 'Haji Hassan and 'Naqi Karimi' also known as 'Karimi'. 'Rasouli' instructed him to buy an airline ticket and gave him a number for a 'Haji Hassan' whom he instructed to call once he arrived in Jakarta.

150. TAHERABADI paid USD $6000 in cash for his cost of travel to Australia which was collected by 'Rasouli' from his brother in Iran after he had left.

151. Upon arrival in Jakarta, TAHERABADI called 'Haji Hassan', who guided his taxi driver to an area called 'Mui'. 'Haji Hassan' advised he would give his number to 'Karimi' (the offender). The offender then contacted TAHERABADI and organised for him to be taken to an apartment.

152. On the first night at the apartment, TAHERABADI met the offender. The offender asked TAHERABADI who his people smuggler was. TAHERABADI informed the offender that he was 'Peyman Rasouli's' passenger. The offender told him to go to his room and rest and advised he would tell him when it was time to leave.

153. TAHERABADI stayed at the apartment for about 34 to 35 days. It was his understanding the accommodation was paid for by the offender. During this time the offender every three days or so advised TAHERABADI that they would be leaving, however each time the departure was postponed with the offender saying the situation was not good and he would have to wait. The offender would come to the apartment once or twice a week during the delay. Usually he would come with a person called 'Hamid'.

154. During this time, on 15, 22 and 26 December 2011, the offender was recorded sending money via Western Union Money Transfers from locations in Jakarta, Indonesia. On these occasions, the offender provided Western Union with a contact number, being 622193189521, and an address of Kelapa Gading, Jakarta, Indonesia.

149. On 4 January 2012, the offender messaged a friend 'Kamyar Kazemi' on Facebook stating he was in Jakarta and contactable on 622193189521.

150. The day before he left for Australia, the offender and 'Hamid' came and collected his mobile phone and SIM card.

151. About midday on 17 January 2012, a taxi collected TAHERABADI and others and took him to a bus. He then boarded the bus and travelled for 12-13 hours. The offender followed the bus in a van but TAHERBADI did not see him again after he got off the bus.

152. Upon getting off the bus, TAHERABADI walked for about two hours through jungle before boarding the boat to Australia, herein referred to as SIEV 299.

153. At 10:05am (Christmas Island time) on 19 January 2012, HMAS MAITLAND was informed of SIEV 299 heading towards Christmas Island.

154. At 12:12pm (Christmas Island time) on 19 January 2012, HMAS MAITLAND intercepted and boarded SIEV 299 18.78 NM from Christmas Island. At the time, SIEV 299, a wooden Indonesian fishing vessel, was carrying 57 passengers including TAHERABADI.

155. The hull condition of SIEV 299 was described as having sturdy planking with superficial weathering on unpainted wood and one diesel engine with hazardous levels of carbon monoxide in the engine compartment. SIEV 299 had 20 lifejackets on board and one life ring in the wheel house.

156. TAHERABADI subsequently provided two witness statements and positively identified the photograph of the offender on a photo board as the person described in his statement as 'Karimi'.

157. At no stage was TAHERABADI, who was an unlawful non-citizen, asked by the offender if he had a passport or valid visa authorising him to travel to, enter or stay in Australia.

Omar Hatem Mahdi ALDAFAI - SIEV 402

Bahar GHOLAMPOUR - SIEV 402

The arrival of Omar ALDAFAI into Indonesia

164. In December 2011, Omar ALDAFAI (ALDAFAI), born 13 January 1984, travelled from Iraq to Malaysia with the intention of going to Australia to claim asylum. Whilst in Malaysia, he met Fadhil Raghib Khana ZANGANA (ZANGANA), born 20 February 1975, an Australian citizen who resided in Sydney.

165. ALDAFAI met ZANGANA, at a restaurant in Kuala Lumpur. ALDAFAI discussed with him at the restaurant about the options on how to register with the United Nations (UN) and get to Australia. ZANGANA told him the quickest way was by boat and that he could arrange the travel if they paid him.

166. ALDAFAI eventually agreed to pay ZANGANA USD $10,000 for the journey, USD $5,000 in cash which was paid at the restaurant in Malaysia that day, and the remaining USD $5,000 in cash paid upon arrival in Indonesia. ALDAFAI gave ZANGANA his Iraqi passport which he handed back to him just before he flew to Indonesia.

167. On 30 December 2011, ALDAFAI travelled on an AIR ASIA flight from Malaysia to Indonesia. Upon arrival at the airport in Jakarta, Indonesia, ZANGANA arranged a taxi for him and was met by ZANGANA's wife at a hotel. A short time later he met ZANGANA at a restaurant where he paid him the remaining USD $5,000.

168. After paying the money to ZANGANA, ALOAFAI travelled in a taxi directed by ZANGANA to a residential complex called 'Moy'. Just before leaving in the taxi, ALOAFI was given back USD $5,000 and told to give it to 'Karimi' (the offender) upon arrival.

169. At the 'Moy' complex he met the offender who identified himself as 'Karimi' and gave him USD $5,000.

The arrival of Bahar GHOLAMPOUR into Indonesia

170. In January 2012, Bahar GHOLAMPOUR (GHOLAMPOUR), born 21 March 1976, made preparations to leave Iran. Her intention was to travel to Australia to claim asylum. Just prior to this time she had obtained a phone number for a people smuggler in Iran known to her as 'Abollfazl', the brother of a man whom she knows as 'Karimi' (the offender). 'Abollfazl' told her on the phone it would be USD $10,000 and she would need to book her own air tickets to Malaysia and onwards to Indonesia.

171. GHOLAMPOUR booked her tickets on Air Asia flying from Tehran to Kuala Lumpur, Malaysia, for the 16th January 2012. She also booked a ticket departing Kuala Lumpur to Jakarta, Indonesia, departing the following day on 17 January 2012.

172. After booking the tickets she contacted 'Abollfazl' again on the phone. 'Abollfazl' told her to take USD $7,000 in cash to an office under 'Gisha's bridge' in Tehran on the day of her flight and she should call to get the address on that day. 'Abollfazl' indicated she should bring USD $3,000 for the final payment in Indonesia and USD $1,000 for her own personal expenses. He told her the USD $10,000 would cover accommodation in Indonesia as well as her 'departure' to Australia, but not her food.

173. On the morning of 16 January 2012, she contacted 'Abollfazl' and got the address to deliver the USD $7,000. She went to the office address and paid the money where she got a receipt before calling the smuggler again. GHOLAMPOUR spoke to 'Abollfazl' on the phone and told him her flight details and that she had paid the USD $7,000. 'Abollfazl' assured her someone would meet her at Jakarta airport and confirmed 'they' would be sending her to Australia by boat.

174. 20 minutes after speaking with 'Abollfazl', she received a phone call from ZANGANA introducing himself as 'FazeI from Indonesia'.

175. ZANGANA thanked her for the USD $7,000 deposit, and told her they would talk about the remaining USD $3,000 when she arrived. GHOLAMPOUR told ZANGANA about her flight details and that she would arrive in Jakarta at 4:30pm on 17 January 2012. ZANGANA said she may need to change to an earlier flight but he would speak to her in Kuala Lumpur.

176. GHOLAMPOUR then flew to Kuala Lumpur using her legitimate Iranian passport in the name of Bahareh Gholampour TIZHOUSH. At 10:30am on 17 January 2012 she arrived in Kuala Lumpur, Malaysia, and contacted ZANGANA who told her to arrange an earlier flight to Jakarta as the bus to the 'ship' would be leaving later that day. GHOLAMPOUR changed her flight to arrive in Jakarta at 12:30pm and told ZANGANA when she was arriving.

177. GHOLAMPOUR arrived at Jakarta Airport and after passing through immigration, waited outside on the street of terminal. She was then approached by a male person who identified himself as ZANGANA. ZANGANA directed her into a taxi and they started driving into the city. During the taxi journey, ZANGANA received a phone call and had a conversation. After the conversation ZANGANA informed her she had missed the boat and that he would take her to a hotel. ZANGANA then dropped her off at a hotel, where she stayed.

178. Towards the end of January 2012, ZANGANA called GHOLAMPOUR, saying that he was going on vacation. ZANGANA then gave her an Indonesian phone number for a male person whom he referred to as 'Karimi' (the offender). ZANGANA instructed her to call the offender and tell him she was 'Fazel’s passenger so she wouldn't miss the next 'transfer'. He told her the offender knew all about her.

179. The following morning she received a phone call from a male person using an Indonesian number who introduced himself as 'Karimi' (the offender). GHOLAMPOUR described his voice as that of a Farsi speaking older male person aged between 50-60 years old with a Turkish accent. The offender asked if her name was 'Bahar' and told her he would be in contact with her soon. She asked him when she would be leaving but the offender told her not to talk about that stuff on the phone.

180. Another week passed before the offender called her again from the Indonesian number given to her by ZANGANA. On this occasion GHOLAMPOUR asked the offender when she would be moving, but he again told her not to talk about it on the phone.

181. A few days later, ZANGANA contacted GHOLAMPOUR, told her to collect all her belongings and go to the nearby shopping centre, 'ITC', where the offender would meet her and collect her bag. ZANGANA told her the offender always collects people's bags two days before a departure and would know what she looks like.

182. GHOLAMPOUR then went to the shopping centre where she met the offender who arrived in a blue taxi. The offender then asked if she had any jewellery in the bag and said he would be putting the bag in the ship, which was far away. She immediately recognised his voice as the same male person she had spoken to on the telephone who introduced himself as 'Karimi'. Several days later on 3 February 2012, the offender contacted her again instructing GHOLAMPOUR to catch a taxi at 8:00am the following morning to 'Anchol', being 'Ancol Dreamland Park' in Jakarta.

183. That evening, GHOLAMPOUR received a phone call from ZANGANA who instructed GHOLAMPOUR to go to the nearby McDonalds and meet up with an Indonesian woman called 'Victoria'. ZANGANA instructed her to follow 'Victoria' into the bathroom in the McDonalds and leave in one of the toilet stalls the remaining USD $3,000 in cash she owed. ZANGANA stated she could deduct the extra money she had paid to undertake the earlier flight between Kuala Lumpur and Jakarta.

184. GHOLAMPOUR then went to the McDonalds where she saw 'Victoria' and left USD $2,800 in one of the bathroom stalls before calling ZANGANA and telling him she had paid the money.

The meeting of Omar ALDAFAI and Bahar GHOLAMPOUR and their first departure attempt to Australia and the 7asikmalaya disruption.’

185. On 4 February 2012, GHOLAMPOUR caught a taxi towards 'Ancol'. Whilst in transit she made telephone contact with the offender who gave instructions to the driver. An hour later she arrived at a car parking area where two buses were waiting.

186. In front of the first bus were standing two Indonesian drivers who started yelling 'Karimi, Karimi' as she exited the taxi.

187. During the next two hours other persons, mainly Iranians (not connected to offender) boarded the bus as well as ALDAFAI, who sat next to GHOLAMPOUR.

188. The bus then left, travelling for about 10-12 hours with the offender following behind in a van. The bus then arrived outside a straw hut where they were instructed to get off and walk through the hut. After walking through the hut they boarded a second bus. This bus then started driving slowly, stopping occasionally to let off several people at a time to board another van.

189. Eventually the bus containing GHOLAMPOUR and ALDAFAI stopped outside a police checkpoint and all the passengers, including the offender in his van, were detained and eventually brought back to Tasikmalaya Police Station. At the police station, they were questioned by police. The offender remained undetected during the whole time and acted as one of the passengers. An Indonesian male named 'Armando', working with the offender, was also with them during their initial detention.

190. The following day, on 6 February 2012, they were all sent to another camp nearby where they stayed for two weeks. During this time members from Indonesian Immigration, the United Nations and two Federal Agents from the Australian Federal Police visited and spoke with the disrupted passengers including GHOLAMPOUR.

The return of Omar ALDAFAI and Bahar GHOLAMPOUR to Jakarta.

191. About three or four days later, GHOLAMPOUR and ALDAFAI were transported back to an Immigration Detention Facility in Jakarta. ALDAFAI was then separated from GHOLAMPOUR and eventually taken by plane to an immigration camp on an unknown island.

192. GHOLAMPOUR and ALDAFAI each secured their respective release and remained in Jakarta awaiting further instructions from ZANGANA and the offender, as described below.

The release of Bahar GHOLAMPOUR and ALADAFAI from detention.

193. Around mid-February 2012, GHOLAMPOUR was able to negotiate her release from immigration detention in Jakarta. Upon being released, she arranged with the offender via telephone to be picked up by a Pakistani people smuggler known as 'Hassan'. 'Hassan' collected GHOLAMPOUR and took her to the offender's apartment complex in Jakarta. It was there the offender stated that he would "send her away soon".

194. At the offender's apartment she met his associate 'Matin'. GHOLAMPOUR stayed at his apartment until the following morning. During the morning, the offender called ZANGANA in front of her and they both had a conversation with him. At the end of the conversation the offender gave her USD $100 and organized a taxi for her to leave to travel to other apartments.

195. About 10 days later, being towards the end of February 2012, GHOLAMPOUR received a phone call from the offender saying he was in Malaysia and would be sending her in the next few days. After speaking with the offender, GHOLAMPOUR contacted 'Matin' who assisted her in getting a USD $500 money transfer from Iran.

196. Sometime in March 2012, GHOLAMPOUR received a phone call from ZANGANA who instructed her to go to the 'Moi' Apartments where 'Matin' would make arrangements to send her to Cisarua. GHOLAMPOUR was transferred to a villa in Bogor/Cisarua. GHOLAMPOUR heard from 'Matin' that ZANGANA had been arrested in Sydney and she was no longer his passenger. GHOLAMPOUR returned to Jakarta. In mid-2012 GHOLAMPOUR sought assistance from other people smugglers.

197. Upon her return sometime in late July - early August 2012, GHOLAMPOUR stayed with the offender at his apartment for a few nights. During her stay there the offender kept assuring her he would send her sometime soon with either 'Hassan', or 'Abbas'. GHOLAMPOUR ran into 'Hassan', who said he was no longer sending the offender's passengers and agreed to take her for US$1,000. GHOLAMPOUR paid this to Hassan. She stayed in the offender's apartment until 6 August 2012 when she was contacted by 'Hassan'. 'Hassan' told her to go to Cisarua, Java. By this time, ALDAFAI had also been released from Immigration detention and had made his way back to Java and near Jakarta.

198. GHOLAMPOUR then travelled to Cisarua where she met up with other passengers including ALDAFAI. A short time later they were conveyed to a coastal area where passengers were then led to a beach and eventually to a boat, herein referred to as SIEV 402 which had been organized by 'Hassan'.

199. Approximately 6:40am (Christmas Island time) on 9 August 2012, HMAS ARARAT and LARRAKIA rendered assistance to SIEV 402 as a vessel in distress approximately 128 nautical miles north-east of Christmas Island. The passengers including GHOLAMPOUR and ALDAFAI were then transferred to the Navy vessels and taken to Christmas Island. SIEV 402 contained 209 passengers and 2 crew.

200. At 3:50am (Jakarta time) on 11 August 2012, the offender corresponded on Facebook with a friend 'Abbas Karim' during which time he stated:

The offender: Armando is out, we are working now send passengers. Have sent Bahar (GHOLAMPOUR) and Omar (ALDAFAI)

Abbas Karim: Did Bahar (GHOLAMPOUR) and the rest arrive?

The offender: Yes

201. At 10:08pm (Jakarta time) on 11 August 2012, the offender corresponded on Facebook with a friend Arash Gharavi:

Arash Gharavi: Why don't you have any photos?

The offender: I am a smuggler. I should not add my photos. I will add some photos later on

202. Between 9:55pm and 10:53pm (Jakarta time) on 31 August 2012, the offender had a Facebook conversation with a Hassan Erfavian (ERFAVIAN) who later arrived on SIEV 422 on 24 August 2014 which included:

The offender: How is the situation, may I come too?

Erfavian: Not bad they separated me from my wife. That felt very bad. Do you seriously want to come?

The offender: If they are not going to bother me I'll come. I have heard that they will put the people smugglers in the jail... I want you to be happy there and forget what you have been through in Indonesia.

Erfavian: They have separated Bahar (GHOLAMPOUR) and Omar (ALDAFAI), and also the same with Solmaz and his boyfriend.

203. ALDAFAI and GHOLAMPOUR provided a witness statement and positively identified the photograph of the offender on a photo board as the person they described in their statements as 'Mr Karimi'.

204. At no stage were ALDAFAI or GHOLAMPOUR asked by the offender, 'Matin' or ZANGANA if they had a valid visa authorising them to travel to, enter or stay in Australia.

(Second entry)

Vahid Amou Ramzan ZADEH-FARO - SIEV 558

The arrival of Vahid Amou Ramzan ZADEH-FARD into Indonesia

205. During October 2012, Vahid Amou Ramzan ZADEH-FARD, born 15 August 1975, an Iranian national, departed Cyprus with the intention of travelling to Australia to seek asylum. Before leaving Cyprus, ZADEH-FARD was given a telephone number for the offender known as 'Naghi Karimi'. ZADEH-FARD had been told he should speak with this person who would be able to help him get from Indonesia to Australia.

206. From Cyprus he travelled to Turkey, however due to an issue with his Cypriot documentation, he was deported back to Iran. Once back in Iran, he called the offender, who told him to fly to Indonesia. About two weeks later he travelled to Jakarta Airport, Indonesia, where he telephoned the offender, however there was no answer.

207. ZADEH-FARD then caught a taxi to an apartment where there were a number of Iranians. From talking with the Iranians there he got in contact with a people smuggling agent named 'Saman' (FAYAZI).

208. ZADEH-FARD met up with FAYAZI, who told ZADEH-FARD he worked for the offender. FAYAZI called the offender in front of ZADEH-FARD and gave him the phone. ZADEH-FARD then spoke to the offender on the phone, who instructed him he would have to pay USD $7,000 in order to get from Indonesia to Australia. ZADEH-FARD told the offender he only had 3000 Euros and was told to pay it to FAYAZI and sort out the rest from Iran later. ZADEH-FARD paid FAYAZI the money and then returned to the Mediterranean Apartments.

209. The following day ZADEH-FARD called the offender and told him he could only pay a further 200 Euros. After some further negotiations the offender agreed. ZADEH-FARD paid the 200 Euros to FAYAZI.

210. One day FAYAZI called ZADEH-FARD and told him to meet outside the apartments. When ZADEH­FARD met with FAYAZI he saw a male person who he now knows to be the offender. ZADEH-FARD noticed when this male person spoke to FAYAZI, it was the offender's voice, the same person he had spoken to on the phone.

211. ZADEH-FARD described the offender as short, about 160 - 165 centimetres tall, fat, thick auburn hair but coloured black, black eyes, round face, tanned skin, always wore a baseball cap, had a gold bracelet and an expensive watch and spoke Farsi with a Turkish accent. He stated he would recognize the offender if he saw him again.

212. In late November 2012, FAYAZI came to the Mediterranean Apartments and started collecting people's phones. ZADEH-FARD refused to give it to FAYAZI, who then contacted the offender, telling him of ZADEH-FARD's refusal. The offender then spoke to ZADEH-FARD and agreed for ZADEH-FARD just to give his SIM card to FAYAZI.

The lead up to the departure of SIEV 558 to Australia

213. On 23 November 2012, the offender had a Facebook conversation with an Alex Amirabad during which time he made the following comment:

The offender: Right now I am in Indonesia and I send people to Australia.

214. Around the same time, FAYAZI returned to the apartments and told ZADEH-FARD they would be departing soon, December 2012. FAYAZI handed ZADEH-FARD an airline ticket with ZADEH-FARD's name on it. ZADEH-FARD then went outside and got into a taxi that was waiting.

215. ZADEH-FARD then travelled to Jakarta Airport and caught a flight to Makassar on the Indonesian island of Sulawesi. Upon arrival he met an Indonesian male person who was on the phone to a person who he called 'Uncle Naghi', who ZADEH-FARD thought was 'Karimi'. ZADEH-FARD overheard the Indonesian male telling 'Uncle Naghi' that he worked for 'Sayed Jamal' and was under instructions to call 'Uncle Naghi' when his passenger arrived.

216. ZADEH-FARD then went to a hotel where he stayed for several nights.

The departure of SIEV 558 to Australia

217. About midnight on the evening of 6 December 2012, ZADEH-FARD, was instructed to wait outside with his belongings. A taxi then appeared and drove him for about 30-40 minutes to a place near the ocean.

218. All of the passengers at that location walked onto a jetty where they were instructed to hand over their phones and passports. ZADEH-FARD boarded a large wooden fishing boat, herein referred to as SIEV 558, which had Indonesian crew members. There were about 57 people on board; mainly Iranian, Iraqis and Burmese.

292. Sometime in 2011, the offender entered into Malaysia from Indonesia by boat after reportedly losing his Iranian passport number E10825328. The offender later met with Senior Advisor Hassan AKBARI at the Iranian Embassy in Kuala Lumpur, Malaysia, and requested a new Iranian passport.

Police Investigation and arrest

294. On 14 December 2013, FAYAZI arrived on Christmas Island on board SIEV 871.

295. On 20 February 2014, FAYAZI was arrested at Villawood Immigration Detention Centre by the AFP and charged with people smuggling offences.

296. The AFP also searched property belonging to FAYAZI, locating a Universal Serial Bus (USB) which contained an image of the offender.

297. Also that date, FAYAZI participated in a digital recorded interview with the AFP where he made partial admissions to working with the offender.

298. On 28 October 2014, the offender was arrested by the INP pursuant to extradition request by the Australian authorities relating to this matter.The offender's extradition was later approved by Indonesian authorities.

299. On 28 September 2016, the offender was surrendered to the AFP at Soekarno-Hatta, Jakarta International Airport where he was extradited to Australia. Prior to being extradited, Indonesian authorities presented the AFP several identification property items including a photocopy of the offender's Iranian passport number: X95384549.

300. Upon arrival into Australia, at 6:40am on 29 September 2016, the offender was arrested by the AFP at Sydney Kingsford Smith International Airport pursuant to two New South Wales (NSW) arrest warrants relating to the charges before the court. The offender was searched and found in possession of a number of items including a business card in his name identical to the business card found in the possession of passengers on board SIEV 276, several SIM cards, note books and telephone diaries containing identified references to people smuggling associates such as FAYAZI and a 'Farmani'.

301. The offender was then later conveyed to the New South Wales Police, Sydney Police Centre (SPC) for processing.

302. On 5 October 2016, the AFP offered the offender an opportunity to participate in a digital record of interview which he later declined through his solicitor.

12. The offending encompassed, in relation to the two counts for sentence, a period between 1 September 2011 and 1 November 2012, being a period of approximately 14 months, when taking into account the two matters on the s 16BA form. The total period was from 1 September 2011 to 25 March 2013, being a period of approximately 19 months. The total number of passengers relating to the two counts for sentence is 20 passengers, being six passengers in Count 1 in relation to SIEV 422, and 14 passengers in relation to Count 2, in respect of SIEV 510. In addition to those 20 passengers, in respect of each of the matters on the Form 1, there are an additional four passengers, giving a total of eight and otherwise a total of 28 passengers.

13. I indicated before dealing with the agreed facts that there was an issue. That issue is in relation to par (11)4 above, and references by the Crown to the offender as: “communicating with others as the principal of a people-smuggling syndicate”, and “... the offender worked as a primary organiser with a number of subordinate people-smuggling agents”. In particular, objections were taken to the description of the offender’s role as being a principal, a primary organiser and a person with subordinates as an accurate interpretation of the role he played in respect of the offending. As I have indicated, across all of the counts including those contained on the s 16BA form, there were a total of 28 passengers in eight boats over a period of approximately 19 months. In one message, located on the offender’s mobile phone, he describes himself as “a people-smuggler”. It is evidenced from the facts that he had agents in Iran who provided his contact mobile number in Indonesia, and quoted costs in US dollars to prospective passengers seeking assistance.

14. The fees varied but in general were in the range of $1,000 US for the agent and $5,000 for the offender per passenger. On occasion, the offender when contacted by the prospective passenger required a deposit into a nominated bank account in Iran. Prospective passengers were advised by him as to when to travel from Iran to Indonesia and how to do so, and in general he undertook to collect them on arrival at their point of entry. When they arrived, he or others assisting him provided details via a mobile phone to taxi drivers then engaged by the arriving passengers to transport the passengers from the point of entry to accommodation already arranged by the offender, where they were to wait for an available voyage on a SIEV vessel.

15. He or his associates advised the passengers of transport to any embarkation point, when available. All balances of money to be paid to the offender for his assistance were paid either to him or persons designated to receive it for him. The offender and his associates on his behalf arranged for changes in accommodation as necessary for the passengers. The offender on occasions placated passengers about delays and gave reasons for delay such as the weather, or there had been a recent loss of lives at sea. Eventually the offender directly or through his associates indicated that a vessel was available, and that the passengers should prepare to be transported to the embarkation point.

16. On one occasion, when a particular passenger was frustrated by the lengthy delay between having arrived in Indonesia and being taken to an embarkation point, he complained to one of the offender’s associates. After he had done so, the offender arrived together with seven or eight armed Indonesians in his company. I would infer beyond reasonable doubt that that was to intimidate the frustrated passenger into accepting any further delay. During the course of the conversation between the offender and the frustrated passenger, the offender informed the passenger that he worked with three named persons in Iran and that he had five named agents working for him in Indonesia. I find beyond reasonable doubt that the offender was a significant or primary organiser in his own extensive international network for the purposes of people-smuggling from Indonesia to Australia.

17. Although there may have been other people-smuggling networks operating simultaneously and even cooperatively in relation to obtaining vessels to provide transport in general to any passengers then seeking to enter Australian territory, it is clear that the offender was intimately aware of any such arrangements and made decisions in respect of those passengers he acted for as to the timing and transport of them to any embarkation point.

18. There is no evidence that he purchased or obtained by any means any of the vessels eventually used, but he was clearly aware of when they were available and able to place his client passengers on board and provide transport to them from their accommodation to the embarkation point.

19. In my opinion, the material contained in the facts, inevitably and beyond reasonable doubt puts the offender as being “a principal” ... “the primary organiser” who operated his people-smuggling network with a number of subordinates. Whether there is any other person with a more senior role in this people-smuggling network will be a matter known to the offender, but he has not given evidence of any such persons. I find that the Crown’s description in the written submissions of the offender playing a vital and integral role in people-smuggling represented by these charges is an accurate description, whether or not one wishes to describe him a principal or something else.

20. The offences committed by the offender are objectively serious as indicated by the period of time over which they occurred, the number of passengers, the number of boats, the international nature of the network and the significant financial reward for providing the service. The offender was aware that the boats may be unseaworthy, and that there was a risk to the lives of the passengers, including on occasions women and children. His actions threatened and breached Australian border control, and imposed significant costs on the Australian public in trying to stop the dangerous and unlawful trade. The offender preyed upon the desperate and vulnerable who in general wished to leave a repressive theocracy and improve their lives or the lives of their family. The fact that at times the operation may have been “haphazard” because buses en route to embarkation were stopped by police and passengers and/or the offender detained, that there were failed embarkations, that there were bus breakdowns, does not in any way reduce the offender’s moral culpability in respect of the offending.

21. As to subjective matters, the offender did not give evidence on sentence. There is no Sentence Assessment Report. There is no other documentation relevant to subjective matters. Tendered on the offender’s behalf was an affidavit by him, dated 13 March 2020 and sworn and witnessed by the offender’s legal representative, Mr Dehsabzi. The Crown did not require the offender for cross-examination on his affidavit. It states as follows:

“1. I was born on 27 August 1960 in Bijar, a town in Kurdistan, Iran. I am now 59 years old. I have four brothers and three sisters. I was the second child and the first son. My father had a grocery shop. My father died about 25 years ago. My mother is still alive. She is 82 years old. I am fluent in Persian, Turkish and Kurdish.

2. I finished primary school. When I was about 11-12 years old, I went to high school until about 1pm. I then did soccer training and from about 4-11pm worked, making bags and shoes at a market. When I was about 13 or 14 years old, I left school to work full-time. I had to work full-time to help my family. When I was about 19-20 years old, I did two years’ compulsory military service. For about five to six years after military service, I did the same kind of work again, making shoes and bags. From about 25 or 26 years old, I started making and selling carpets. I ended up travelling and living overseas for a number of years in this business.

3. When I was about 20 years old, I married my wife, Soraya. We have two children, my daughter Hedyeh, who is 24 years old, and my son Eilya, who is 14 years old. They live in Tehran. Soraya never lived overseas with me, although she occasionally came to visit.

4. Between October 2014 and September 2016, I was in gaols in Indonesia. They were not like the gaols in Australia. They were overcrowded, with about 18-20 people in each sleeping room. The food was bad and I had to buy it myself. There were no hot showers. The gaols were unclean.

5. I had never been to Australia before being extradited here between September and November 2016. I was in gaol at the MRRC and since then at Long Bay Hospital. Early on, I asked the staff at the gaol about English classes and to work. I was told there would be English classes from January 2017, but this has never happened. I started to improve my English myself just by conversations with inmates, staff at the gaol and reading. I can now have detailed conversations in English, and clearly more complicated ones such as with my lawyers and reading novels. There are only a few inmate jobs at Long Bay Hospital, for example sweepers, but I have never been offered work. I spend my time in gaol praying, reading, exercising and playing sports, especially soccer.

6. I speak on the telephone to my children about twice a month and to my mother about every two months. Corrective Services records show that in May and August 2018, I was visited by Himan Rostami, and in June 2008 by Seul Lee. Mr Rostami was an old cell mate. Although two visits are recorded, he was not permitted to see me the first time but was the second. Ms Lee was the daughter of my then cellmate. I have not otherwise had any personal visits and do not expect to have any.

7. I have had no disciplinary problems in gaol. Annexed and marked (a) are two pages from Corrective Services OIMS notes about me.”

22. I note that the offender is described in part, in relation to the annexed pages, as always smiling and saying good morning or good evening and never causing any trouble, although he is said to have been frustrated at the length of time and the process of the legal system. He was referred to see a psychologist which he accepted. There are further entries indicating that he is an older inmate who is a polite inmate. He spends his day on the oval training and also taking younger inmates under his wing. It is said in one of the entries that the person making the entry never witnessed a negative interaction between the offender and centre staff.

23. A further entry by Julius Grant, a Corrections officer, is as follows:

“Inmate Karimi consistently conducts himself compliant to the gaol routine and regulation, is respectful to staff and looks after his health well. He has been living in Long Bay Hospital for around 18 months. He gets along well with other inmates, and being a middle-aged person, many younger inmates come to and get some tips/advice on how to cope with being incarcerated from him”.

24. I have no difficulty in accepting the contents of the offender’s affidavit as an accurate summary of his life and I accept that while in custody in Australia he has not been in breach of any prison regulations and conducts himself well. There is no information before me as to why he has been resident in the Long Bay Hospital. I infer from that, that it is not for any reason particularly significant to sentence, as I anticipate such information would have been put before me.

25. As to his criminal history, the offender had never been to Australia before the extradition. He accordingly has no record of criminal offending in Australia and there is no information available to the Court as to his offending in any other country. However, I note that of course this was a course of conduct comprising continued criminal offending during the time period covered by the counts for sentence and those to be taken into account. I should indicate I accept that his time of approximately two years in custody in Indonesia was in harder circumstances than would have been custody in Australia.

26. Of note, however, there is no reference in his affidavit to remorse or contrition in relation to the offending conduct, nor even regret. As to his family, while one can be sympathetic for someone in custody in Australia for what is now a lengthy period, being separated from their native home and family, he had already separated himself from them by being in effect resident for the purposes of his criminal conduct in Indonesia, and only having apparently the occasional visit from his wife. Any further contact with his wife or children while in Indonesia must have been only by telephone, or perhaps occasionally returning to Iran by air. There is nothing significant in those circumstances about his isolation from his family. At least while in custody he has made a deliberate effort to increase his skills in the English language, already apparently being fluent in Persian, Turkish and Kurdish. As a result, he is not isolated from other prisoners within the system, at least those that can speak Persian, Turkish, Kurdish or English.

27. In written submissions, it has been submitted by Ms Avenell on behalf of the offender that the Court can find that the offender is remorseful and contrite. As I have indicated, there is in fact no information before the Court upon which such a finding could be made. It is the case that sometimes a plea of guilty can be in itself evidence of remorse or contrition, particularly when coupled with an early plea and/or a record of interview in which the offender is frank to the interviewing officers about the conduct relevant to the charges. A plea of guilty in itself does not necessarily reflect remorse or contrition and considering the significant delay in this matter, and what appears to be a reasonably strong Crown case, judged on the agreed facts, in my view the eventual plea of guilty cannot be perceived as evidence of remorse or contrition.

28. The strength of the Crown case is relevant to the concept of facilitation of justice in relation to a Commonwealth matter. The timing of the plea is relevant to the utility discount as referred to in Xiouv R [2018] NSWCCA 4. I accept that there is at least some minor degree of facilitation of justice, the extensive delay and the plea of guilty being entered being caused by what appeared to have been protracted negotiations between the Crown and the defence, in order to resolve what were originally 43 counts down to the number that are now presently before the Court.

29. The offender was extradited to Australia on 29 September 2016. The plea of guilty was indicated shortly before the date set for the commencement of the second trial. The period between those dates was approximately two years and nine months since extradition, and of course the offender had been aware from his arrest in Indonesia that it was for the purpose of extradition proceedings to bring him to Australia to face these charges. The period between his arrest in Indonesia and the entering of the plea is approximately four years and eight months. That, in my view can reasonably be described as an extremely belated plea of guilty. There is no evidence before me of any early offer by the offender to plead to anything. Indeed, as I have already referred to in dealing with the history taken by me from the continuation sheets that are part of the Court file, the indication prior to Ms Avenell coming into the matter from his then legal representative was that there would in effect never be a plea of guilty. No doubt Ms Avenell, barrister, becoming the legal representative for the offender resulted in a sensible resolution, and, in my view, an appropriate resolution of the issues, enabling the offender to then enter the pleas of guilty.

30. I have noted from the continuation sheets that the estimates for the trial on various occasions were eight weeks or ten weeks. In my view, although it was a very belated plea, the offender is still entitled to some discount for the utility of the plea, and I intend to provide a discount which I will refer to as a discount for the facilitation of justice/utility of the plea, as the community has been saved from the cost of an anticipated extensive trial and of course the witnesses have been saved from the discomfort and inconvenience and the stress of being witnesses. Accordingly, I have provided a discount on sentence which for the sake of transparency, although not required to be stated in relation to a Commonwealth matter, I will indicate is ten per cent.

31. I intend to proceed by way of an aggregate sentence and in those circumstances I will in due course deal with the sentences in the way they would be dealt with if they were sentences under the New South Wales legislation, that is, I will provide an indicative term and an indicative non-parole period as each of the offences has a minimum non-parole period to be taken into account.

32. I note in respect of the s 16BA form that there is some, in my view, difficulty in relation to the legislative terminology as to whether matters on a s 16BA form can be taken into account in respect of one or more of the offences before the Court for sentence. Having raised this issue with the parties, they have agreed that it is appropriate that the Court should take the matters contained on the s 16BA form into account only in respect of Count 2 on the indictment, and I will do so.

33. I should note, in addition to the discount provided, I have otherwise rounded down, to the benefit of the offender, the indicative sentences to the nearest lower full year. However, the matters contained on the s 16BA form mean that there must necessarily be some increase in the sentence imposed in respect of Count 2, while of course always allowing for the concept of totality in respect of the aggregate sentence.

24. There have been a number of previous decisions in relation to people-smuggling which it is relevant to refer to. In R v Udin Nursia and Ors (Supreme Court of the Northern Territory Bailey J, 12 January 2000), in relation to general deterrence being crucial, in relation to matters of this type:

“General deterrence must play an important role in determining the appropriate sentences in the present circumstances. A clear message must be sent to others who are minded to engage in bringing non-citizens to this country. Upon apprehension they can expect to face a very substantial penalty ... I am satisfied that the situation is such that general deterrence must, at least for the present, be given greater emphasis than other sentencing objectives, such as rehabilitation”.

35. Although that case was dealt with before the implementation of the statutory mandatory minimum sentences, it remains as an accurate reflection of the seriousness of the offending. Further relevant sentencing considerations were identified in Cita and Lamaha v R (2001) WASCA 5:

• Frustration by people-trafficking of Australia’s legislative and administrative system for seeking to deal in a fair and orderly way with non-citizens wishing to enter and remain here, including and especially refugees.

• Great administrative burden and expense imposed on Australia both before and following protection.

• Diversion of funds from dealing with the needs of others who have not found the opportunity or money to affect the clandestine entry into Australia.

• Significant health and quarantine risks associated with people-trafficking.

• Effect on the exploitation of non-citizens attempting to enter Australia illegally.

36. In R v Petersen [1984] WAR 329, in relation to the then increase in the prevalence of a particular type of offending Bird CJ stated:

“The prevalence of a particular offence in a particular locality or in the community generally as at the date of the commission of the offence for which a sentence is to be imposed should be reflected in the sentence by giving a greater relative weight to the achievement of that purpose. That is not done by imposing an ‘exemplary’ sentence, so called, which is more severe than the nature of the offence and the circumstances of its commission in justice calls for, but by giving less weight to - which is not to ignore - mitigating factors which may be found within the antecedents of the prisoner. That results in a ‘firming up’ of the sentence for such an offence and results in a sentence which more closely fits the crime and a sentence which, if the offender thinks about it in advance, is in reason predictable and certain, each of those qualities being central to the idea of deterrence.”

37. The NSW Court of Criminal Appeal in Feng Lin (2001) NSWCCA 7 at 195 in a matter involving s 233(1)(a) of the Migration Act observed:

“Smuggling of non-citizens into Australia presents obvious social problems to the fabric of Australian society. It undermines the attempted equities of an organised immigration and refugee system. It exposes the participants to exploitation and risk to health and life and it imposes significant costs upon the Australian public. The need for deterrent penalties is manifest given the difficulties of detection and the exposure of Australia through its vast coastline”.

38. Although in more recent times, there has been a significant cessation in the business of smuggling unlawful non-citizens from Indonesia to any Australian territory, there is always a significant risk that any change in the government’s policies which are so far being effective in achieving that result will result in the immediate resumption of people-smuggling from Indonesia to Australia which has all of the adverse effects to which I have already referred, as well as significantly putting at risk the lives of those who would embark on such dangerous journeys at sea in ill-equipped, ill-provisioned vessels, overloaded with passengers, many of whom, at times, are incapable of swimming to save themselves and where there is insufficient safety equipment such as life jackets or life boats to assist them should the vessel be so unseaworthy as to commence to sink, or incapable of resisting the impact of weather changes and the effects of hostile seas. In that sense the comments that I have referred to remain entirely apposite.

39. As to the prospects of the offender being rehabilitated, or his risk of re-offending, it is extremely difficult for the Court to make any assessment in the circumstances where the information before the Court is as limited as I have referred to. At least his good conduct while in custody now for a lengthy period in Australia holds out some hope of rehabilitation. The same cannot be said in respect of the prospect of reoffending in circumstances where the offender carried on his criminal conduct for profit and by preying upon the vulnerable, indicating very little concern or empathy towards those who embarked on the journeys, on occasion together with their very young children. Of course, I anticipate in this matter, the offender not being an Australian citizen and only present in Australia because of extradition, that on completion of his sentence he will be immediately deported from Australia, presumably to Iran, whatever the then circumstances are in relation to Iran and deportation.

40. He is 59 years of age now and will turn 60 in August this year. I accept that at his age, and considering the time he has already spent in custody and will spend in custody in completion of the sentence to be imposed, that that in itself may significantly decrease the risk of him reoffending and increase the prospect of rehabilitation.

41. Mr Karimi Azar, you are convicted in relation to each of the two offences contrary to s 233C of the Migration Act, being Count 1 and Count 2 on the indictment you previously pleaded guilty to. In sentencing you in respect of Count 2, I will take into account the two matters contained on the s 16BA form, being in each case offences contrary to s 233A of the Migration Act.

42. I intend to proceed by way of an aggregate sentence.

43. I have already indicated the discount in relation to each of the indicative sentences, and for greater transparency I will indicate the starting point to which the discount was applied.

44. I have also taken into account the maximum term of imprisonment provided by the legislation and the relevant minimum term of imprisonment and minimum non-parole figures as provided by s 236B of the Migration Act 1958.

45. In respect of Count 1, the starting point was a sentence of nine years. After applying ten per cent discount and some rounding down in the accused’s favour, the indicative sentence is eight years with a non-parole of five years and three months.

46. In relation to Count 2, the indicative sentence is 11 and a half years, which, after application of the ten per cent discount and some rounding down, comes to a term of imprisonment of ten years with a six and a half year non-parole period.

47. The aggregate sentence will be a term of imprisonment of 12 years with a non-parole period of eight years. As the offender has been in custody since being apprehended in Indonesia on 28 October 2014, the sentence will be taken to have commenced on that day. Accordingly, the sentence of 12 years’ imprisonment commences on 28 October 2014, the non-parole period is eight years, and I will make an order that he will be released on parole on the expiry of the non-parole period, which is 27 October 2022. The balance of term is four years and the total term of 12 years will expire on 27 October 2026.

Mr Karimi Azar, that means that you’ll be remaining in custody in Australia subject to that sentence until, at the earliest, 27 October 2022, which will then complete the non-parole period.

Mr Crown, I cannot see any utility in explaining to him what might happen to him if he breaches the parole period because of my expectation that he will be deported shortly after.

CLARKE: I think that must be right.

HIS HONOUR: Ms Avenell, do you--

AVENELL: I don’t have anything to say, your Honour.

HIS HONOUR: Alright, I don’t believe I’ve missed anything of significance. Is there anything, Mr Crown, or any errors etcetera?

CLARKE: Not that I can see, your Honour.

HIS HONOUR: Ms Avenell.

AVENELL: Not that your Honour has missed anything, no.

HIS HONOUR: Alright, thank you. I’ll adjourn. Mr Karimi Azar, is there anything that you couldn’t understand in that process or what I said that you would like some further explanation of while we have the availability of an interpreter here, or will you wait until such time as Ms Avenell can consult with you?

AVENELL: Your Honour, we can call Mr Karimi Azar now and Mr Dehsabzi if needed can interpret as well, my instructing solicitor.

HIS HONOUR: Alright, we can arrange for the Court sound equipment to be turned off and for you to talk directly to him now. I’ll vacate the Court. The Crown doesn’t need to remain and you can talk to him while on the screen. The Court officers will also leave the Court room.

AVENELL: Your Honour, we can call him from the conference room and talk to him.

HIS HONOUR: Then you’ve got the problem of trying to make contact with him. You might be better to take the opportunity of him being available on the screen now but it’s a matter for you.

AVENELL: Okay.

HIS HONOUR: You can do so. I’ll ask the interpreter to remain to assist you in that process.

AVENELL: Thank you, your Honour.

HIS HONOUR: If necessary. Is that alright with you, Madam?

INTERPRETER: Yes, your Honour.

HIS HONOUR: Alright, thank you. Alright then, I’ll adjourn and we’ll turn off the sound and vacate the Court room so that you can have some privacy to do that.

RECORDING EQUIPMENT SWITCHED OFF AT HIS HONOUR’S DIRECTION

ADJOURNED

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