R v Rakiba Rakiba
[2014] ACTSC 373
•25 February 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Rakiba Rakiba |
Citation: | [2014] ACTSC 373 |
Hearing Date(s): | 25 February 2014 |
DecisionDate: | 25 February 2014 |
Before: | Refshauge J |
Decision: | 1. Rakiba Rakiba be convicted of people smuggling. 2. Rakiba Rakiba be sentenced to two years and two months’ imprisonment to commence on 12 June 2012. 3. Rakiba Rakiba be released forthwith on a Recognizance Release Order for a period of two years with a security in the sum of $600. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Judgment and Punishment – Sentencing – People smuggling |
Legislation Cited: | Crimes Act 1914 (Cth), Pt 1B Migration Act 1958 (Cth), s 233A |
Cases Cited: | DPP (Cth) v El Karhani (1990) 21 NSWLR 370 Jopar v The Queen (2013) 275 FLR 454 |
Parties: | The Queen (Crown) Rakiba Rakiba (Offender) |
Representation: | Counsel Ms K Haigh (Crown) Mr J Lawton (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Rachel Bird and Co (Offender) | |
File Number(s): | SCC 243 of 2012 |
Refshauge J:
The way in which those fleeing persecution should be treated is an emotive issue which divides the community. The trade in people smuggling, however, whereby the lives of such people is put at risk by persons who take large sums of money from those desperate people, is a matter in which there is a more unified community voice.
Rakiba Rakiba has been found guilty of the offence of people smuggling. This is an offence under s 233A of the Migration Act 1958 (Cth), which provides for a maximum penalty of ten years’ imprisonment, or a fine of 1,000 penalty units, or both.
The facts
The facts are that Mr Minaz Uddin, who was born in Bangladesh, left Bangladesh in order to avoid persecution from the demands of the political parties there who threatened him with dire consequences if he did not join one or the other. He fled to Malaysia and then to Indonesia, where he embarked on a boat to go to Australia.
The boat, after two days, got into difficulties and, despite the work of the crew and the passengers, ultimately sank, and they were marooned on an isolated island in the sea. Sometime later, they were collected by a second boat, which was, it appears, in the charge of the accused, Rakiba Rakiba. He steered the boat to Ashmore Island.
The conditions on the boat were of a very sad circumstance. There was no cabin, just a tarpaulin to protect from the sun and the run. There were no lifejackets, which, of course, made a precarious journey in an open boat through open seas life‑threatening. There were no toilet facilities and the cooking and sleeping facilities were obviously of a very substandard level.
At Ashmore Reef, where the boat ultimately arrived, the boat was intercepted by Customs and then by the Royal Australian Navy, which took the passengers and the crew, including Mr Rakiba, into custody on 12 June 2012. Mr Rakiba has remained in custody since that time.
Mr Rakiba was promised money, not a large amount of money in Australian terms but, for him, a substantial amount of money, to participate in this enterprise. He was, as rightly described by his counsel, a patsy because he received very little, if any, money from the person who organised this enterprise but who had himself received a substantial sum of money from Mr Uddin and apparently substantial money from the other twenty-eight or so persons who were on the boat.
Mr Rakiba has been in detention since he was arrested on 12 June 2012 and, in my view, that period of detention must be taken into account in determining how to sentence him. That period is, as at today, one year, eight months and fourteen days.
Personal circumstances
I know little of Mr Rakiba's personal circumstances.
He indicated, and I have to say, he looks about seventy years old, although he was not sure when he was born.
He obviously has a poor education. He has been a fisherman all his life and he earns a small amount of money, certainly a pittance in Australian terms, but which he says is just enough to feed himself. I have no details of his family.
Consideration
People smuggling has been described by Higgins CJ in R v Basirun (Unreported, ACTSC, Higgins CJ, 11 July 2013) as “a reckless and, at times, deadly trade relying on simple folks”. The simple folks are both those who are fleeing persecution but also the crew who assist them to take people to Australia in breach of the rules and laws about borders. Nevertheless, those who participate, even at a lower level, are guilty and certainly are guilty of offences as enacted by the Australian legislature.
Under Pt 1B of the Crimes Act 1914 (Cth), I am required to have regard to appropriate factors in relation to sentencing of offenders for Commonwealth offences for which, of course, this is one. Those factors are outlined in s 16A.
It has been held, in DPP (Cth) v El Karhani (1990) 21 NSWLR 370 at 377, that a consideration of general deterrence is also relevant in this matter. I have been referred to and rely on what was said by Muir JA in R v Karabi (2012) 220 A Crim R 338 at 343; [21] in the Court of Appeal of the Supreme Court of Queensland, where his Honour said:
The role of general deterrence in cases of this kind cannot be doubted. People smuggling: threatens the orderly administration of immigration laws; imposes a financial burden on the Australian public; necessitates the deployment of military, customs and other governmental resources; encourages official corruption in other nations and exploits and imperils the health and lives of those carried, or attempted to be carried, into Australia.
The crew, even though hapless and ill‑educated persons under enormous pressure of offers of substantial funds, must, nevertheless, be deterred from engaging in this as they remain, as was submitted by the Crown in this case, are vital, although a low part in the process.
There is also a role for general deterrence because of the prevalence of these offences and I had, in the submissions of the Crown, information about the number of arrivals of such suspected irregular entry vessels since the arrival of that which was steered by the accused. I have regard to what Weinberg JA said in Jopar v The Queen (2013) 275 FLR 454 in comments which appeared to be in accord with those of the other members of the Court. His Honour said (at 458; [16])
I should nonetheless make it clear that, in my view, it is quite wrong to say in absolute terms that an offender dealt with under s 233A(1) must be sentenced to a term of actual imprisonment. The very fact that the legislature has allowed for a fine to be imposed for an offence under that section, as an alternative to imprisonment, makes that obvious. It may be that, in a particular case, a combination of mitigating factors, which might, hypothetically, include youth, possible Verdins considerations, and perhaps a willingness on the part of the offender to give evidence against others, could justify a non‑custodial disposition. That would be so despite the practical difficulties associated with such an outcome.
(Footnotes omitted)
There are, in this case, no particular considerations of the kind referred to by his Honour. His Honour then continued (at 458-9; [18]-[19])
In my opinion, it will ordinarily be necessary, in a case such as the present, to impose an actual custodial term. Without making too much of the point, people smuggling is a serious matter, and must be dealt with as such. General deterrence is important, and cannot realistically be achieved without at least some measure of imprisonment.
That is true of both the aggravated form of people smuggling under s 233C(1) and the lesser form under s 233A(1). Given the circumstances that normally surround offenders who are charged in such cases, it will ordinarily be necessary to imprison them, rather than to consider some form of inapt non‑custodial disposition. That should not, however, be viewed as an absolute rule.
I take into account the nature and circumstances of the offending, which I have briefly referred to above. The smuggling enterprise was clearly organised and sophisticated because not only was Mr Uddin able to move through the lines to the boat and then to Australia with one payment of money, but, when the first boat on which he embarked sank, it was able to be communicated to the original people smuggler operative who arranged for another boat to pick them up and deliver them.
I note that Mr Rakiba has no previous criminal history in Australia and it is not alleged that he has any criminal history in Indonesia. It seems to me that it is unlikely he has any criminal history in Indonesia.
It appears to me that there is some requirement for personal deterrence in this case, although Mr Rakiba’s age means that if he is returned to Indonesia, as seems likely, shortly after completing any sentence here, it will be very unlikely that he will be able to repeat the offence. As I have no information about his family, the impact of the offence on his family is unknown.
Mr Rakiba pleaded not guilty and was found guilty by a jury at trial.
There were two other crew members involved in this enterprise, and they were sentenced on 25 June 2013 (R v Kaubulan (Unreported, ACTSC, Higgins CJ, 25 June 2013)), and 11 July 2013 (R v Basirun). In both cases, they were sentenced to a period of one year and nine months’ imprisonment, which was imposed after a deduction of ten percent discount for the plea of guilty, making the head sentence twenty-four months had they pleaded not guilty. They were then released forthwith, having served a little over twelve months of their sentence.
It seems to me that there are two matters that distinguish Mr Rakiba from those persons. The first is that he seems to have been the master of the vessel and his involvement with Mr Uddin showed that he had some degree of control over the arrangements. He also pleaded not guilty and, therefore, is not eligible for a discount for a plea of guilty that the others were entitled to benefit from in their sentencing.
I had a conspectus of comparative sentences or sentences for matters under s 233A of the Migration Act. The head sentences ranges in those cases widely from one year and six months through to three years. There is no what might be called a “tariff” and all of those offences were ones where the offender was sentenced following a plea of guilty. There appears to be no case where the offender has pleaded not guilty and been sentenced in circumstances. I have had regard to the circumstances of those various offences and the penalties imposed and have regard to that in the sentence that I propose to impose.
Mr Rakiba, please stand:
4. I convict you of people smuggling.
5. I sentence you to serve two years and two months’ imprisonment to commence on 12 June 2012.
6. I release you forthwith on a Recognizance Release Order for a period of two years with a security in the sum of $600.
[His Honour then spoke directly to Mr Rakiba]
Mr Rakiba, what that means is that I have said that the seriousness of the offence deserves a period of imprisonment for two years and two months. I have taken into account the period you have already spent in custody, that is, from 12 June 2012, and that amounts to serving that period of the imprisonment that I have set. I do not require you to serve any more time in prison; I am releasing you from prison custody now.
The law requires me to impose a security amount, which I have set at $600. You do not have to pay that money unless you breach the conditions of the release, and the conditions of the release is that you be of good behaviour and not commit any further offences for a period of two years. I imagine, and I will be corrected if I am wrong, that you will, however, be taken into immigration detention but likely to be deported soon back to Indonesia.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Refshauge. Associate: Date: 27 January 2015 |
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