R v Pulendren

[2010] NSWDC 335

CITATION:	R v Pulendren [2010] NSWDC 335
HEARING DATE(S):	02/09/10, 03/09/10, 10/09/10
JUDGMENT DATE:	20 September 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Tupman DCJ
DECISION:	Sentenced to a term of imprisonment of five and a half years commencing on 24 November 2009 and expiring on 23 April 2015 with a non-parole period of three years commencing on 24 November 2009 and expiring on 23 November 2012
CATCHWORDS:	CRIMINAL LAW - Commonwealth sentence - people smuggling Sri Lanka Tamil asylum seekers - S232A(1) Migration Act - mandatory prison term - early plea of guilty - disclosing offence to authorities - acting as local agent for broader people smuggling syndicate in Sri Lanka, Malaysia and Indonesia - financial gain motive - considering comparable people smuggling sentences - applying Commonwealth sentencing principles
LEGISLATION CITED:	Crimes Act 1914 Migration Act
CASES CITED:	Cita v R (2001) 120 A Crim R 307 R v Daoed (2005) 158 A Crim R 381 R v Disun (2003) 27 WAR 146 R v Al Jenabi [2004] NTSC 44
PARTIES:	Commonwealth DPP Pathmendra PULENDREN
FILE NUMBER(S):	2009/00056107
COUNSEL:	Mr P McGuire (CDPP)
SOLICITORS:	Mr M Cavanagh (for offender)

SENTENCE

HER HONOUR:
1. The offender is before me for sentence following his plea of guilty in the Local Court on 24 November 2009 to one count contrary to s 232A(1) of the Migration Act, which was then in force, namely, that between 1 February 2009 and 28 June 2009 at Pendle Hill, he facilitated the bringing or coming to Australia of a group of five or more people who had no lawful visa to enter Australia, he being reckless as to whether or not they had a lawful right to do so. It is the offence known as people smuggling.

2. Brought under these provisions of the Migration Act, there is a maximum penalty of twenty years imprisonment. Further, the legislature has seen fit to enact mandatory sentencing provisions for this offence. Section 233C of the Migration Act provides that, for a person in this offender’s position, there is a mandatory term of imprisonment of five years with a mandatory minimum non-parole period of three years. Further, s 233B of the Act prevents a judge from dealing with this offence pursuant to s 19B; namely without conviction. So, for any adult person who pleads guilty to this offence, or is convicted of it, notwithstanding his or her role in the offence, notwithstanding their own personal circumstances, or any other matter, a sentencing judge has no discretion but must impose a sentence of at least five years with a minimum non-parole period of at least three years.

3. Because he is being sentenced as a Commonwealth offender, I am required to have regard to the matters set out in Part 1B of the Crimes Act 1914, in particular s 16A. I accept that, in applying these provisions, a sentencing judge should herself operate under the governing principle in s 16A(1), which provides that “a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence”.

4. The discretion to consider all of the circumstances for this particular offence, unlike the vast bulk of equally serious Commonwealth offences, is curtailed by the mandatory sentencing provisions. The legislature has decreed that in all cases, full-time custody is appropriate and has set a minimum period. There is nothing in these mandatory sentencing provisions however, it seems to me, to suggest that these amounts or lengths are meant to operate as a starting point, applying only to the least serious factual cases, committed by an offender with the most impressive subjective case.

5. It is then necessary, pursuant to s 16A, to consider the nature and the circumstances of the offence, including the factual circumstances surrounding the offence, the role of the offender in it, and his motive, if any. A further matter for consideration under this section are the character, antecedents, age, means and physical or mental condition of the person. To an extent, it seems to me, it is necessary to consider these matters together in this case to understand properly how this offender came to commit this offence.

6. There is a lengthy statement of agreed facts tendered, and the offender has given evidence. He also made a lengthy record of interview with the Australian Federal Police on 18 June 2009. His evidence in this Court, in large part at the very least, adopted that lengthy interview, although he also went further in relation to his role.

7. From that combination of evidence, I accept that the offender is a thirty-six year old Sri Lankan Tamil. He completed his final secondary studies in Sri Lanka in 1993, then went to work in Colombo in 1994 at a telecommunications centre. He then worked in Colombo from 1995 to 1997 in a travel agency. He married in 1997, but his wife went to India because of the political situation facing Tamils in Sri Lanka. The offender followed her to India in 1998. They lived there together until 2002 in Madras. They had a son born in India in 1999.

8. The offender was working in a plastics company in India and, when he came back to Sri Lanka in 2002, he continued to work in the plastics industry. That company sent him to work as an area manager in Jaffna in Sri Lanka. It is essentially a Tamil area of Sri Lanka. I accept that it was an area of frequent conflict in the ongoing civil unrest which had been occurring in Sri Lanka since the 1980s. The majority of the population in that area were Tamils. There were frequent episodes where terrorists threw bombs at the government Sinhalese troops.

9. The offender witnessed one of these episodes one evening on his way home from work. He is able to speak Sinhalese as well as his native Tamil language. Government troops asked him to assist by interpreting and asking questions of Tamils who were present at this event, which he did.

10. At that time, it was necessary for the offender to travel regularly to Colombo for his work and to do that required him to travel through two areas, one controlled by government troops and the other by the Tamil Tigers. It became obvious to him on these trips to Colombo that the Tamil Tigers believed he had become a government informer because he had assisted in interpreting during the incident in Jaffna and he was threatened during these trips to Colombo, so he decided to leave Jaffna and went to live and work in Colombo. Whilst working there in a company, his boss, also a Tamil, and with whom he was in business, was shot and killed. He believed that he would be next and he assumed that this was connected with the political situation in Sri Lanka and would be an ongoing risk for him.

11. So, in 2006, he left and went to China lawfully. He only had a three month visa, however, and was then supposed to return to Sri Lanka. He feared for his safety there. He had a visa to return via Singapore, but did not do so. Instead, he went to Malaysia. He stayed in Malaysia for ten months. When there, he met a friend he knew from Sri Lanka, who offered him an opportunity to join a boat which was taking a group of asylum seekers towards Australia. He agreed to pay $US15,000 to do so, and also agreed to assist translating for Tamil speakers on the boat once they were intercepted. He expected that the boat would be intercepted by Australian authorities. This in fact occurred, and he claimed asylum as a refugee.

12. He arrived at Christmas Island in March 2007 as one of eighty-three male Tamils on this boat. He stayed on Christmas Island for eleven months and was then granted refugee status and went to Brisbane. From there, he was sent to Perth in January 2008, where he stayed for three months in facilities organised by immigration authorities.

13. In April 2008, he came to live in Sydney, effectively with resident status on a protection visa. It was with this background that he started work full time in Sydney as a cleaner and also enrolled to do accounting at TAFE. He was living with his wife and son. He was not able to continue to do the course because of the expenses of studying and the need to support his family on the fairly modest income he earned as a cleaner.

14. On 29 March 2009, he bought a spice shop in Pendle Hill for $40,000, of which he borrowed $30,000 from his wife’s family in London. He still, as I understand it, owes that money. The person from whom he bought the shop was another Sri Lankan person whom he knew. He also still owed money to the organisers of his own trip to Australia, a little less than $US15,000, and also to family and friends who supported him financially whilst he was living in China and Malaysia before he left to come to Australia. In all, as I understand the evidence, he had debts of about $50,000.

15. This offence for sentence involves the offender’s role in organising twenty Sri Lankan Tamils to come to Australia without visas in much the same way as the offender did in 2007. These twenty were part of a larger group of 194 Sri Lankan Tamil males who were all found to be on board a vessel known in these proceedings as the SIEV 46. They left Malaysia on about 13 June 2009 and were intercepted on 26 June 2009.

16. He was the agent in Sydney who organised for twenty of these 194 males to be on board that boat. This occurred in circumstances where members of the Sri Lankan community in Australia made contact with the offender in Sydney seeking his assistance to arrange for people to come from Sri Lanka to Australia in this way without lawful visas. Some of these people were probably family members of those who were already in Australia who sought his assistance. In some cases, the offender had been sought out to provide this assistance because it was assumed he would have contacts because of the way he came to Australia and, for some of them, this contact was arranged by the person from whom he bought the spice shop. But the offender, in his evidence, has also agreed that some sought his assistance because he made it known throughout the Tamil community in Sydney that he was able to provide this service.

17. In effect, he acted as the Sydney agent for this broader people-smuggling enterprise operating in Sri Lanka, Malaysia and Indonesia. He knew that what he was doing was contrary to law and that, if apprehended, he would be arrested and receive a gaol term, and possibly, in due course, be deported. He went ahead, nonetheless I accept, for financial gain. Each of the twenty people whom he organised on board this boat were to pay $US15,000 just like he had paid.

18. Whilst the evidence is a little uncertain about this, in the end I accept from the admissions he ultimately made, that he expected personally to receive $2,000 per passenger of this amount, so he expected to receive $US40,000 for himself once all of these twenty passengers had arrived in Australia. Each of the passengers was required to pay an initial boarding fee of $US500 to the organisers in Colombo or Malaysia, and the balance was then to be collected once they arrived in Australia.

19. As I understand the evidence, some paid this initial $500 directly in Sri Lanka or Malaysia, and some was given to the offender in Sydney from those contacts who had sought his assistance, so that he could transfer it. He did so by regular international money transfer with Western Union to the people who were otherwise organising this people smuggling enterprise in Sri Lanka or Malaysia. He sent about $3,000 or $4,000 that way.

20. This boarding fee component was to provide for food, fuel, lifejackets and the like. The balance was to be paid on behalf of these asylum seekers once they arrived in Australia and I accept that the offender would have played a part in collecting and passing on that money for most, if not all of the twenty he organised. That never occurred. The money was never collected. He never received any of it, and apart from the $500 per person it was never passed on for the reasons that I will now come to.

21. On 17 June 2009, after the boat had left Malaysia, he went to Merrylands Police Station and there gave New South Wales police a brief statement, which was recorded in a notebook. He told them that he was involved in organising twenty people on a boat containing what, at that stage, he thought was 197 Sri Lankan asylum seekers. He told police that it was on its way to Australia. He gave them the details of the point of departure, the intended destination, details of the people who had organised the venture and details of his own involvement, at least at that stage. He told police that he believed that the vessel was overcrowded and feared for the safety of the people on board, and that was the reason why he had come forward.

22. The following day, no doubt after the New South Wales Police had contacted the relevant authorities, namely the Australian Federal Police, he was interviewed by the AFP and gave them a very lengthy record of interview, which is before me in evidence. I accept that this was the first time that the AFP was aware of the existence of this boat, which was by then well on its way to Australia, although, as has become clear, it appears that another federal agency, which has not been identified throughout these sentencing proceedings, had in fact been monitoring three telephones of the offender since at least 24 April 2009, and was aware of all the planning for launching this boatload of asylum seekers, the number likely to be on board and the fact that by then it was on its way to Australia.

23. There has been no evidence on this sentence to explain what, if anything, was done to prevent this boat from leaving Malaysia so that these people were not put at risk, nor has there been any evidence to explain why it was that the AFP was not made aware of the offender’s role in this enterprise within Australia before the boat left. The offender, it seems to me, had in fact committed this offence, which is now before the court for sentence, on the basis of the intercepted telephone calls, before the boat left Malaysia, and he could have been arrested and charged before the boat left and therefore before these 194 asylum seekers actually arrived in Australian waters. However, it would appear that that information was not made available to the AFP, and as a result the AFP knew nothing about this offence or this offender in Australia, or his role in this offence until after he went to the police station on 19 June and told the New South Wales Police, and then gave the AFP a very full record of interview on 18 June.

24. It is the case that two of the telephones he used were not in his name, which would have made identifying him somewhat more difficult, but one of them was registered to him in his correct name, at his correct address, and at least some of the calls intercepted were made on that phone. The other two phones were being used in the Wentworthville/Pendle Hill area, and I accept from the evidence that the offender gave, whilst registered to other people, were in fact bought by him from telephone shops in the Pendle Hill area and in which he used other SIM cards.

25. He agrees that he used at least two of these phones in part in an effort to avoid detection. It equally appears that it would not have been terribly difficult to identify him even from these two phones, let alone from the one registered in his own name. It appears that despite this, the federal authorities did not know the offender’s identity until he went to the police station on 17 June and confessed his involvement in this offence.

26. I accept the reason he went to the police, and then involved himself in the record of interview, was because of a genuine fear for the safety of the people on the boat. He knew that he would be arrested and charged. He knew that as a result of going he would never recover any of the money he was to make for his involvement in this offence. His concern for the safety of the people, it is fair to say, was a little belated because he had become aware, at the latest a few days beforehand, of exactly the number of people on the ship overall. He always knew that his twenty people would only be part of a larger whole, but I accept from his own evidence and the intercepted telephone conversations that he did not initially think that the boat on which his twenty people would travel would be dangerously overcrowded.

27. I accept that he thought it would be full and that there would be a large number of passengers for a relatively small fishing vessel, but I accept that initially he thought it would be much like the boat on which he arrived in Australia in 2007. He became aware before the boat set sail that it was more than that, more like about 100 or 125, and then later on that it was 194. He initially did not do anything about this to prevent the boat leaving, because he wanted to make the money that he was due to make out of his involvement in this offence.

28. It seems to me that the offender was very frank in the evidence he gave to the court and in the record of interview. He frankly conceded that when he became aware of the actual number, he initially did not do anything about it because he thought that his twenty people might somehow be taken off the boat if he complained and therefore he would not make his money. He conceded that he thought about his own interests first, but then decided that he needed to go to the authorities because he became more and more concerned about the safety of all on board. There was nothing for him to gain from doing this and everything to lose. I accept the submissions made on his behalf that eventually, after some delay, his better nature overtook his prior poor judgment and he acted correctly and morally.

29. Following his interview with the AFP, investigations followed. The vessel, the SIEV 46, was sighted by the Royal Australian Airforce on 26 June 2009, 236 nautical miles from Christmas Island. The navy started surveillance of the boat from 27 June. It was intercepted by the HMAS Pirie on 28 June 2009 after it entered the Australian contiguous zone, adjacent to Christmas Island. They escorted it to Christmas Island, but by its own motors, where the passengers disembarked and were processed. There were discovered to be 194 Tamil Sri Lankan males, none of whom had lawful visas to enter Australia, all of whom claimed asylum status.

30. I accept from other evidence tendered on sentence that apparently the captain and other crew members of this boat had left the boat some time just before it entered Australian waters, so as not to be apprehended. They left the steering of it towards Australian waters in the hands of some of the asylum seekers.

31. Since that time, 180 of these 194 people have been granted refugee status. There are still apparently fourteen whose status has not yet been determined. I have been informed and accept that these fourteen include those who played a greater supervisory or leadership role on board amongst the asylum seekers, and there may well yet be charges laid against some of them. However, it seems to me that any cases against them cannot be very strong, if charges have not yet been laid some fifteen months after they landed on Christmas Island and sought asylum in Australia.

32. The offender himself was arrested and charged on 30 June 2009. He was initially granted bail, but following his plea of guilty in the Local Court on 24 November 2009, he was refused bail and has been in custody, bail refused, ever since.

33. From all of these facts and findings I accept that the offender’s role in this offence was significant. This is conceded on his behalf. He played a pivotal role in the smuggling of these twenty people to Australia. Paragraph 19 of the agreed statement of facts sets out in more detail what he did, and in the evidence he gave to the court he agreed that that sets out his role properly. I do not propose to repeat that fairly lengthy paragraph in these remarks on sentence. This was a role, he conceded, larger than that which he originally told police during the interview on 18 June 2009.

34. Even during that interview he confessed to all of the necessary elements to make up this offence and since then, it seems to me, has provided more detail, including inculpating himself to a greater degree and, including the names of many involved in this enterprise.

35. One of the factors to take into account when determining the objective seriousness of an offence such as this, is the role played by the offender. When assessing the role played by an offender in people-smuggling, there are various people playing various roles at various levels as appears from those cases that have been reported. Amongst those are the people towards the bottom such as poor fisherman, who are prevailed on to ferry people to the coastline of Australia with the lure of what are in relative terms small amounts of money but, because of their own financial circumstances, they are prepared to take the risk. At another level are people, like Male B referred to in this case, who is obviously the principal of this particular people smuggling enterprise, who oversee individual vessels and journeys and who do it on an ongoing basis.

36. There are others like this offender who operate as agents of those like Male B who arrange a group of individuals to join one of these vessels coming to Australia. That is the role that he played as an agent arranging for these twenty people to be able to join this vessel and come to Australia. His role was pivotal to those twenty people being able to do so. It seems to me however it is something of a semantic argument to refer to him as the principal in relation to those twenty people. It is accurate as far as it goes, but it seems to me appropriate to see those twenty people in the broader context of this overall people smuggling enterprise involving 194.

37. Nonetheless within this pivotal role he organised for these twenty Sri Lankan Tamils to be provided with passage on a boat from Malaysia to Australia knowing that none of them had a visa to enter Australia. For some of them he had to arrange for them to leave Sri Lanka and come by air to Malaysia and for some who were already in Malaysia, he had to arrange for them to meet the boat from there. He did so by using contacts in Sri Lanka, Malaysia and Thailand, all of whom he has named. One contact was in Colombo. For those of his twenty who needed to leave Sri Lanka he placed them in touch with this person in Colombo who would then quote the cost of travelling to Australia, assist with travel documentation where required and arrange for travel to Malaysia from Colombo where necessary. For those who travelled from Colombo this person used the services of a corrupt airport official in Kuala Lumpur because none of these people anticipated having the appropriate visa which would allow them entry to Malaysia from Sri Lanka.

38. The offender knew that this was occurring and from the intercepted calls it is clear that amongst those tasks he undertook in organising his twenty people, was to ensure that they caught flights to Kuala Lumpur which were timed so that the particular corrupt official would be there to assist their passage through.

39. Once they entered Malaysia or, if they were already in Malaysia, their food and accommodation was arranged by another member of this organisation, a person who he also named to authorities. The offender was in regular contact with him by telephone to ensure that this occurred. The asylum seekers then waited in Malaysia for varying lengths of time until a vessel was made ready to sail for Australia. This was organised by Male B in this particular instance. He organised and had control of the vessel. In this particular instance the asylum seekers, including the twenty who this offender had organised, were assembled on the Malaysian coast in early to mid-June 2009 and it was Male B who then decided whether or not they were allowed entry to the ship which he had organised. The offender’s twenty were allowed and ultimately were amongst the 194 which were intercepted and taken to Christmas Island.

40. The offender was part of this larger criminal enterprise operating in Sri Lanka, Malaysia and other places which had as it’s primary objective the movement of people between Sri Lanka, Indonesia, Malaysia and Australia. On the evidence before me on this sentence these were all Sri Lankan Tamils who wished to claim asylum in Australia. This overall larger criminal enterprise had been in operation for some time according to the evidence of the offender and at least, clearly enough, from 2007 when the offender himself was brought to Australia by the same people. There is no evidence however that the offender himself had been involved in this enterprise before this occasion in 2009 and whilst within the intercepted telephone conversations there is some suggestion of the possibility of future involvement by the offender, he elected to end his involvement in this particular offence and any future offences when he went to the police and gave himself up knowing that he would be arrested and this particular people smuggling enterprise on this occasion would come to an end.

41. The overall larger criminal enterprise was involved in people smuggling into Australia but not people trafficking. The evidence surrounding this particular offence would appear to be clear enough that it was always the intention of those involved in this particular vessel, including the offender, that it would be apprehended once in Australian waters, detained and then the people would seek asylum and be processed. The evidence, including an assessment of the offender’s own personal circumstances, indicates that the opportunity for these asylum seekers to engage in an orderly application for asylum in Australia from within Sri Lanka was unlikely if not impossible. For varying reasons, including the difficulty in obtaining visas, none of these 194 people or perhaps the twenty people of those 194 for which this offender stands to be sentenced, was able to become an unlawful non-citizen seeking asylum in Australia in the more traditional way, namely entering on a tourist visa by air intending to overstay that visa and then to claim asylum. This was not a people smuggling enterprise that intended to land a large number of people somewhere on the coast of Australia so that they could thereafter disappear undetected into the community. On the evidence before me, it was always expected and intended, that they be detected and then their claims for asylum processed.

42. In assessing his motive, as I have said, he did it for financial gain. I accept that he was being pursued by those who organised his trip to Australia in 2007 to repay what he owed. That was not the only debt that he had. He also had a debt for the business he had bought and to repay those from whom he had borrowed money when he was living in China and Malaysia. I accept however that he was coming under some pressure to repay the money to those who had assisted him to come to Australia in 2007. That much is clear it seems to me from some of the intercepted telephone calls before me in evidence. That was amongst the reasons why he allowed himself to become involved in this offence because of the pressure being applied to him. It is not an excuse and he does not put it forward as an excuse. It does however provide some context or explanation for his decision to become involved.

43. He does not claim to have been involved in this offence for any altruistic purposes and it seems to me, somewhat frankly, conceded that his reason for involvement was to make money, to clear his debts and to pay for the needs of his family.

44. In summary then, in terms of assessing the nature and circumstances of this offence, in other words, the objective seriousness, this is very clearly a very serious offence.

45. There have been a number of cases reported, to which I have been referred, in which others have been sentenced for offences contrary to this section, that is for people smuggling offences. I accept that this sentence must carry a strong message of general deterrence and in fact it may be that that is one of the primary motives for the provisions surrounding this particular offence. I have read all of those judgments in relation to these offences.

46. It is clear that the sentence must carry a message of general deterrence. It is not however, it seems to me, helpful to allow the sentencing process to become involved in the political debate about these issues, and with respect it seems to me that from time to time this has occurred. It may be, and I accept is the case, that in some cases people-smuggling raises issues of national security and the potential for that is certainly clear, thus the seriousness of the offence. However, in this case, that does not seem to be the situation, as is evidenced by the fact that just on ninety-three per cent of those on board this boat were granted protection visas as asylum seekers and thus, in effect, residency in Australia.

47. It may also be that sentences for offences under this section should send a message that those who wish to migrate to Australia should do so in an orderly fashion, although the evidence that this is in fact possible from certain parts of the world is far from clear.

48. This offence clearly does affect the issue of sovereignty but even that consideration would appear to ignore the very large number of asylum seekers who come through initially lawful means by air but who then later seek asylum status.

49. The sentence should clearly send a message of general deterrence for all of these reasons but it seems to me particularly so because of the risk that people-smuggling undertaken in this way puts desperate people at risk of harm. There have been notorious cases, some of which I am referred to as comparable sentences, in which asylum seekers in large numbers have died when ships exploded or capsized and people were drowned. That, it seems to me, is the overwhelmingly serious nature of this offence because of the potential of serious risk to which desperate people are put.

50. Fortunately however, in considering this matter, that was not the case. Reports from the naval vessel that intercepted this boat have been tendered. There seems to be some discrepancy between the initial and subsequent reports. Ultimately the view would appear to be that the SIEV 46 was unseaworthy. I also have the benefit of a DVD showing the process of boarding the vessel and the search process.

51. There is no evidence, however, that the offender here either knew or thought that this would be the case. I accept that he thought it would be much like the boat that he was on when he travelled to Australia in 2007, certainly not the pinnacle of seaworthiness and certainly with a degree of danger, but I accept there is no evidence that he thought that the boat on which he placed his twenty people would be unseaworthy to the extent that they would be put at risk.

52. I do accept that on this particular boat there were some holes and gaps and some water coming in to the boat, however it had been sailing for about ten days and when intercepted the motor worked, albeit it seems that at some stage during the voyage it had had to call into Indonesia for repairs. When it was escorted to Christmas Island by the Australian Navy it did so under its own steam, with motors that worked. There was food on board and fuel. I accept that there had been life jackets for each of the asylum seekers on board but that the passengers had discarded them overboard once they got to Australian waters in the belief that they were to be intercepted, because of a perception they had that, if intercepted by authorities when in possession of life jackets and thus apparently relatively safe, they would be towed back out into open waters and would thus not be able to claim asylum.

53. When looking at those authorities to which I have been referred, it seems to me that, whilst his role is significantly higher than those who are fishermen, captain and crew members or the like, his role is very similar to the role of Daoed, as reported in the Queensland Court of Appeal decision, R v Daoed (2005) 158 A Crim R 381.

54. Daoed was described by the Queensland Court of Appeal as being engaged in all phases of a people-smuggling scheme but his role was subordinate to the main organiser. That, it seems to me, is similar if not identical to the role of the offender in this case.

55. The facts, fortunately, are not identical. The Daoed case was a very tragic case, which has come to be known as the SIEV X case, in which the boat, as known to Mr Daoed, was very over-crowded, capsized, and 300 passengers lost their lives. As well as the surrounding circumstances, including the number of passengers with which Mr Daoed was involved being different, Mr Daoed was convicted after trial, does not have the benefit of having disclosed the offence to authorities and did not provide any other assistance to authorities.

56. In that case, he was sentenced under the same section as that which this offender faces, to an overall term of nine years imprisonment with a non-parole period of four and a half years. That sentence was thought to be appropriate by the Queensland Court of Appeal.

57. Significantly, that Court, in the reported decision on p 383, made it clear that whilst the offender Mr Daoed was not being sentenced for causing the deaths of hundreds of desperate people, but rather for “aiding in the organisation of their proposed entry into Australia, it cannot be denied, however, that the dangerous overcrowding of the vessel attributable to greed rendered the applicant’s offence one of the more serious cases of the contravention of 232A of the Act”.

58. The case before me, on its own facts, notwithstanding the relatively similar involvement of this offender to Mr Daoed, is a less serious example of an offence pursuant to s 232A, and as such, the penalty, in comparative terms, all other things being equal, should be lower.

59. Further, in this case, the offender has provided assistance to the authorities, another factor which I am required to take into account under s 16A of the Crimes Act. The details are before the court, included both in the AFP letters which comprise exhibit B, and also in the evidence given by the offender in closed court in relation to this issue. I do not propose to canvas any of the details of that evidence in open court.

60. One part of his assistance, however, which I have already canvassed, is the assistance he provided in the interview he gave with the AFP on 18 June 2009. I assess that assistance as being relatively valuable, notwithstanding the somewhat contrary opinion held by the AFP in their letter of 15 July 2010. It is the case that he did not provide police with full details of his involvement in the enterprise, and that did not become clear until the AFP were provided with the telephone intercepts by the other federal agency.

61. However, most significantly, he disclosed to them a people smuggling enterprise that they knew nothing of at the time. He disclosed to them the fact that the boat had left, that it was on its way, and that he had a role in organising twenty people on board. He disclosed to them that there were 194 people on board that boat. None of this was anything known to the AFP before he provided that assistance. He made it possible for the boat to be identified and sighted, and ultimately safely brought to land. It seems to me that that is assistance of relatively significant value.

62. He later had an interview with police in August 2010. It is set out in a supplementary letter of assistance. He provided names of some people in Australia relevant to his involvement in this people smuggling. He has given evidence in closed court about these people.

63. He was not originally prepared to undertake to give evidence in any proceedings that might have been taken against any of these people, but agreed to do so in his evidence in court. However, there have been no other people actually charged at all in relation to this whole enterprise, and I am told that is not likely to change. In any event, those who he named, if anything, are well below him in terms of any role they may have played in relation to the twenty asylum seekers brought to Australia, and further, I accept that it is in reality unlikely that any of them will be charged. Further, once the other agency had made the existence of the telephone intercepts known to the AFP, it became clear that much of the information he provided was already known to federal authorities. This information I assess as being at a low level, and in reality only past assistance. It is unlikely that he will ever be called on to honour an agreement to give evidence in court. However, he did provide assistance. It was valuable in the way that I have outlined, and he should receive a lower sentence because of that. It is a matter which I am required to take into account pursuant to s 16A, and I will do so.

64. I also take into account the fact that he pleaded guilty at what is effectively the earliest available opportunity. It indicates on his part a willingness to facilitate the interests of justice. With the benefit of the telephone intercepts, it is a relatively strong Crown case against him, but not overwhelmingly so. Without his admissions to police, it would involve an understanding of the telephone intercepts, but what’s more, involve all of those being played in a trial in Sri Lankan and interpreted. The fact that he pleaded guilty indicates not only his genuine remorse and contrition for having committed these offences, but also his willingness to facilitate the interests of justice. I accept that he is genuinely remorseful and contrite for having committed this offence.

65. There will no doubt be an impact upon his family, another matter which I am required to take into account. There is little evidence in relation to that. His wife and child remain living in Sydney and, as I understand it, rely on family to assist. His business was sold in June 2009 for $65,000. In terms of assessing the impact of the sentence on his family, I accept that his sentence may mean that they are never able to live together again as a family because he may be deported and his wife may not be in a position to return to Sri Lanka. However, this impact on his family is not of the exceptional type which would lead to a lower sentence than may otherwise be necessary.

66. In assessing his more general subjective circumstances, in addition to the background which I have already recited, I accept that he is a person who comes to court with no prior criminal convictions either here or in Sri Lanka. From a recitation of his own background as an adult in Sri Lanka and now in Australia, I accept that he has had a fairly difficult adult life. He is genuinely remorseful and contrite. His commission of this offence, it seems to me, represented a serious lapse in judgment motivated by a desire for financial gain, and his actions in going to the police represented his return to his normal good character and return to good judgment.

67. I have been referred, as I have said, to a number of cases decided in similar circumstances, including the decision of Cita v R (2001) 120 A Crim R 207, R v Disun (2003) 27 WAR 146 and R v Al Jenabi [2004] NTSC 44 and others. As I have already said, it seems to me that the most similar is R v Daoed except, the significance difference being, that this is a plea of guilty in which assistance has been given in circumstances where this offender is being sentenced for his involvement in the people smuggling of only twenty people and in which, fortunately, the ultimate circumstances were nowhere near as tragic as that which occurred in the SIEV X.

68. For all those reasons, I have come to the conclusion that an overall term of imprisonment of five and a half years is called for in this case.

69. Had it not been for the mandatory sentencing provisions, I would have set a non-parole period of two years and nine months, that is, fifty per cent of the overall term. Although the normal division for Commonwealth offences a non-parole period between sixty to sixty-six per cent of the overall term, it seems to me that for a variety of reasons a lower non-parole period would have been appropriate. They are that this is his first time in gaol, and the fact that ultimately he will need a longer than normal period of supervision, hopefully in the community, to allow his reintegration. I am constrained, however, as a result of the mandatory sentencing provisions to a non-parole period of no less than three years. For that reason I make the following formal orders:

70. The prisoner is convicted. He is sentenced to a term of imprisonment of five and a half years commencing on 24 November 2009 and expiring on 23 April 2015. There will be a non-parole period of three years commencing on 24 November 2009 and expiring on 23 November 2012.

71. There will be a further order that there be no publication of the evidence given by the offender in closed court, nor any publication of the names of any persons mentioned by the offender during his evidence generally.

oOo