R v Vinayagamoorthy
[2010] VSC 148
•31 March 2010
| IN THE SUPREME COURT OF VICTORIA | (Revised) | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1628 of 2007
| THE QUEEN |
| v |
| ARURAN VINAYAGAMOORTHY ARUMUNGAN RAJEEVAN SIVARAJAH YATHAVAN |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 2, 3, 4 & 5 February 2010 | |
DATE OF SENTENCE: | 31 March 2010 | |
CASE MAY BE CITED AS: | R v Vinayagamoorthy & Ors | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 148 | Revised 20 April 2010 |
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CRIMINAL LAW – Make asset available to a proscribed entity – Guilty plea – Nature of the asset – Section 21 of the Charter of the United Nations Act 1945 (Cth) – Subjective knowledge or belief capable of treatment as aggravating factor – R v De Simoni (1981) 147 CLR 383 - Offending in middle range of seriousness – Sentencing principles – General deterrence.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Dean SC with Mr K. Armstrong | Commonwealth Director of Public Prosecutions |
| For Accused Vinayagamoorthy For Accused Yathavan For Accused Rajeevan | Mr N. Papas SC Mr M. O'Connell SC Mr P. Boulten SC | Robert Stary Lawyers Robert Stary Lawyers Robert Stary Lawyers |
HIS HONOUR:
On 24 December 2009 you each pleaded guilty before me. You, Aruran Vinayagamoorthy, pleaded guilty to two counts contrary to the provisions of the United Nations Act 1945 (‘The Act”). You, Sivarajah Yathavan, and you, Armugan Rajeevan, pleaded guilty to one count of breaching the same provision.
In your case, Vinayagamoorthy, the first count involved you directly or indirectly making monies available to Liberation Tigers of Tamil Eelam, the LTTE, otherwise than in accordance with a notice under s 22 of the Act. The offence was said to have been committed between 13 December 2002 and 23 November 2005. The second count related to the making available of electronic components to the LTTE without the relevant notice in the period 4 December 2003 to 12 October 2004.
In the case of you, Yathavan, and you, Rajeevan, a single count to which you each pleaded guilty related to monies being made directly or indirectly available to the LTTE. In your case, Yathavan, for the same dates as Vinayagamoorthy and in your case, Rajeevan, for the extended period from 13 December 2002 to 30 March 2006.
Section 21 of the Act is in the following terms:
Offence for individuals
(1) An individual commits an offence if:
(a) the individual, directly or indirectly, makes an asset available to a person or entity; and
(b) the person or entity to whom the asset is made available is a proscribed person or entity; and
(c) the making available of the asset is not in accordance with a notice under section 22.
(2) Strict liability applies to the circumstance that the making available of the asset is not in accordance with a notice under section 22.
Note: For strict liability , see section 6.1 of the Criminal Code .
Penalty for individuals
(2A) An offence under subsection (1) is punishable on conviction by imprisonment for not more than 10 years or a fine not exceeding the amount worked out under subsection (2B), or both.
(2B) For the purposes of subsection (2A), the amount is:
(a) if the contravention involves a transaction or transactions the value of which the court can determine--whichever is the greater of the following:
(i) 3 times the value of the transaction or transactions;
(ii) 2,500 penalty units; or
(b) otherwise--2,500 penalty units.
Offence for bodies corporate
(2C) A body corporate commits an offence if:
(a) the body corporate, directly or indirectly, makes an asset available to a person or entity; and
(b) the person or entity to whom the asset is made available is a proscribed person or entity; and
(c) the making available of the asset is not in accordance with a notice under section 22.
(2D) An offence under subsection (2C) is an offence of strict liability.
Note: For strict liability , see section 6.1 of the Criminal Code .
(2E) It is a defence if the body corporate proves that it took reasonable precautions, and exercised due diligence, to avoid contravening subsection (2C).
Note: The body corporate bears a legal burden in relation to a matter in subsection (2E) (see section 13.4 of the Criminal Code ).
Penalty for bodies corporate
(2F) An offence under subsection (2C) is punishable on conviction by a fine not exceeding:
(a) if the contravention involves a transaction or transactions the value of which the court can determine--whichever is the greater of the following:
(i) 3 times the value of the transaction or transactions;
(ii) 10,000 penalty units; or
(b) otherwise--10,000 penalty units.
(3) Section 15.1 of the Criminal Code (extended geographical jurisdiction--category A) applies to an offence against subsection (1) or (2C).
The LTTE is a proscribed organisation following from a series of regulatory and statutory provisions which in turn follow the adoption by the United Nations of resolution 1373 of 2001. That resolution was passed following the terrorist attacks in the United States on 11 September 2001. The purpose of the resolution was to prohibit citizens of member states of the United Nations making assets available to nominated terrorist organisations. The resolution became part of the domestic law of Australia, eventually in the form of the present provision. The list of organisations which have been proscribed was not part of that original resolution and the list is one chosen and settled by the Australian Government.
The basic elements of the offence are clear enough. The offence occurs when assets are made available, directly or indirectly, to a proscribed organisation and not in accordance with notice under s 22. In this case, no application was ever made for a notice under s 22 and no issue has ever arisen in the case as to the fact that the LTTE is a proscribed organisation. The fault element of the provision is recklessness and that applies to the question of knowledge of whether or not an accused knew that the LTTE was a proscribed organisation. It follows that it is sufficient for the prosecution to show that any accused was aware of a substantial risk of proscription and that such a risk was unjustifiable.
It was contended on behalf of the prosecution that I could be satisfied that each of you did know of the proscription. It was submitted on behalf of each of you that the evidence was insufficient for me to so conclude. Apart from finding that by the time of your arrest you, Rajeevan, plainly knew of the state of affairs, I am not satisfied that you did know, although I would strongly suspect that to be the case. But in circumstances such as these, on the question of moral culpability, the difference between actual knowledge and recklessness is not all that significant. When choosing to deal with a particular organisation, the line between awareness of a substantial and unjustifiable risk of proscription and actual knowledge of proscription is a very fine one indeed.
There are some matters of general application that will also be noted here. The first is that funds provided were funds collected in Australia from the Tamil community and even though the LTTE had been proscribed, local Tamils continued to provide funds. The second but related matter is that as a consequence of the regulation passed in December 2001, conduct which had previously been lawful became unlawful. Although it related to events in Sri Lanka, there had been no change in the prevailing circumstances.
An unusual feature of this offence is that it makes criminal in Australia, conduct which has its effect in places outside Australia. Although it is an unusual feature, it can have little bearing on the law the offending is designed to deal with. The present provisions are a direct response to Australia’s international responsibilities. It should, however, be observed that the LTTE has never actually been declared a terrorist organisation in Australia, although that was a matter within the power of the Government.
The case of each of the accused has a substantial history. Originally, these accused had been charged with offences contrary to the Criminal Code Act 1993. Those offences involved membership, support and provision of resources to the LTTE as a terrorist organisation in addition to charges similar to the present charges. Had those charges remained, it would have been necessary for the prosecution to prove that the LTTE was in fact a terrorist organisation during the relevant period within the definition of the Code.
That would have necessitated the prosecution undertaking the complex task of demonstrating that terrorist acts had occurred and that the LTTE had performed those terrorist acts and was hence a terrorist organisation. In part, as happened in the case to some degree regardless, it would have involved the calling of expert evidence to show the history and structure of the LTTE. That material was available to me in any event.
The Crown decided not to proceed with those offences and to instead proceed with the offences, or offences very similar, to those presently before me. There had been substantial preliminary argument in relation to those earlier charges which are now not proceeded with. It was argued on behalf of the prosecution that the present offending was aggravated by virtue of the fact that each of you knew that the LTTE was a proscribed organisation and knew the terrorist nature of the organisation, particularly as it related to the use of child soldiers and suicide bombers. It would follow, or so the argument would run, that you knew or believed what would be made of the assets being provided.
It was argued that such a submission was supported by evidence of the complex structuring which was used to transmit funds. I accept that structuring supports the proposition that you knew or at least there was a substantial risk that the LTTE was a proscribed organisation. It is not possible to truly distinguish between one above the other, particularly when reference is made to my earlier remarks as to what true distinction might exist in any event.
It is accepted that it is not necessary for me to make actual findings as to whether or not the LTTE was, at relevant times, a terrorist organisation. What is urged on me is that it would be an aggravating circumstance if the accused were members of and supported an organisation about which their subjective knowledge or belief was that it was a terrorist organisation or that it had features of a terrorist organisation. When the argument is stated in that way, it is somewhat illusory.
That submission gave rise to a separate argument. It was argued on behalf of the accused that a finding of aggravation in that way would offend the principle in R v De Simoni. It was submitted that if this offending was to be aggravated by findings that the accused knew or believed that the LTTE was a terrorist organisation of which they were members and who acted on behalf of the LTTE in Australia, it would be the equivalent of dealing with them as though charged with the offences which had now not been proceeded with. The situation is a difficult one and it is possible to see the argument on each side. Ultimately, I do not decide the issue as such because of the findings which I will make.
I do not find one way or another whether the accused knew or believed that the LTTE was a terrorist organisation or find one way or another whether or not the LTTE was a terrorist organisation on the material before me. I am satisfied that the accused knew that it was alleged that the LTTE was a terrorist organisation. I am satisfied that they knew that the organisation had been declared such in other countries. I am satisfied that they were active in trying to prevent such a declaration being made in Australia. I am satisfied that their subject belief however was that the LTTE was not, insofar as they were concerned, a terrorist organisation.
One of the difficulties in looking at organisations such as the LTTE is that they are not static. The LTTE operated between 1976 and 2009. It operated differently at different times, used different tactics at different times, and it is very difficult to describe it as one unitary organisation. It is one of the difficulties that arose when strict proof of whether or not the LTTE was a terrorist organisation was required for the purposes of the proposed trial.
In the period of the indictment, or at least for most of it, there was a cease-fire in Sri Lanka between the LTTE and the government of Sri Lanka. Dr Smith in his reports and evidence at the committal has said much about the development of the LTTE. Many, if not most of the supporters of the LTTE, would have regarded themselves as having been involved in a civil war and from the period 1990 to 1994, the structure of the LTTE was somewhat like a military force.
I will set out in my reasons a long passage of the evidence from Dr Smith which was included in the defence submissions provided to me on the plea contained in paragraph 45 of those submissions:
The fact of the matter is that there is in reality, a very well established government infrastructure in the uncleared areas; isn’t that right?---The government continue to provide utilities and education I believe, but as I said before, I’ve not visited the uncleared areas. But there is a semblance and the problem for the government is if they withdraw those utilities and facilities and services from the uncleared areas, then they give up totally the – any notion of having control over the entire state of Sri Lanka. So my understanding is that the services and so on; electricity, water and education don’t amount to very much. But for example, they continue to pay teachers and provide water resources and so on. But they are – they’re not very efficient, they don’t amount to very much.
The government does not provide medical facilities or hospitals, do they?
---I’m not sure about medical facilities and hospitals. Certainly I mean the LTTE provides a good deal of the welfare supports – a good deal of the welfare requirements for the people within the uncleared areas. I mean, I think that’s fairly accepted as well.There is in effect a de facto state in existence in the north of Sri Lanka, is there not?---The LTTE, particularly since the ceasefire in 2002, has put a tremendous effort into building a state within a state. I mean in Kilinochi I understand there is – the civil service is operating, a police force is operating, a tax collection system is operating. I mean basically yes, they are trying to kind of touch all the bases required to build a state within the state in the event that some kind of confederal or independent homeland will be achieved. They wish to be seen to be a state in waiting.
Indeed, this state in waiting has its own police force, as you just mentioned, does it not?---It does, yes.
It has its own court system, does it not?---It does.
It has its own banking system, does it not?---It does.
It has a series of hospitals, does it not?---I am not entirely sure about hospitals, but I would imagine so, yes.
Orphanages?---Yes.
A form of social security?---Social security? Not in the terms that we would, I suppose, understand it in the west. There is support for the families of martyrs and people who have been killed in battle. There are – for example, I was made aware the other day of a – I would guess a facility, a home, that has been set up for individuals who have post-traumatic stress syndrome, I mean that type of thing. I mean, in terms of, say, unemployment benefit, then no. I would doubt that that doesn’t exist in Sri Lanka anywhere but there have been conscious attempts to set up a welfare system and many of the other facilities that one would associate with state-building.
There are education facilities in this area, are there not?---I think so, yes.
Including colleges to teach technical skills?---Yes. It would be unsurprising if there weren’t to a certain extent because the Tamil commitment to education – in fact the commitment to education across Sri Lanka is phenomenal and one would expect the LTTE in the areas that it controls to set up these education systems. It would be extremely surprising if they didn’t.
In large measure there is effectively a blockade on this area, is there not?
---It’s a blockade that certainly during the peace process the A-9 was opened up to allow commerce between the north and the south and I mean I was in Jaffna, for example, just before the ceasefire and then just after and the difference in the way in which the urban areas operated before and after were quite phenomenal and now it’s gone back to status quo and the A-9 has been shut so commerce is difficult, there are shortages, there are medical shortages up in the Jaffna Peninsula, food shortages to a certain extent I believe, so yes, I mean there is a system or there is a kind of blockade but it is of both sides’ making. I mean, it’s not just the government that has created the situation, not at all.Nevertheless, if one was minded to provide aid to the uncleared areas, to send it through the Sri Lankan government channels, would involve a great degree of trust that it would finally get there, and a real chance that it would never reach its intended objective; correct?---I think that’s – I think that’s a fair comment, and the tsunami was the humanitarian relief that came to Sri Lanka following the tsunami was a very good test case and unfortunately a good deal of aid that should have gone to the uncleared areas, particularly around Mulaitivu actually didn’t get there or was badly administered or was held back. It – the post tsunami example indicates the difficulties that would be involved in channelling humanitarian aid through to an uncleared area via the government.
The level of trust amongst the Tamil Diaspora, of official Sri Lankan channels is low; correct?---It is low now I mean after the tsunami I understand that a lot of Tamils donated to Sri Lanka in the expectation that the – the size, the scale of the emergency would overcome any – would overcome any problems between the government and the – the LTTE, the Singhalese and the Tamils. Certainly from interviews I’ve conducted, outside of Sri Lanka amongst Tamils was incredible disappointment in the way in which this aid was administered and it’s not surprising therefore that more focus was on governmental organisation sector.
Yesterday you talked about the existence of basically a proto state in Kilinochi, are there members of the police force in the Kilinochi members of the LTTE?---I would say there are.
Why do you say that?---Because they would be under the – they would be line managed by the LTTE, they would be – their resources, their training, their day to day activities would be – they would be answerable to – and therefore line managed by the LTTE commanders.
If there is a proto state, the commanders are in essence the governors of the state, are they not?---They are – they are in control of it, I mean, it’s well known and you will be extremely aware yourself that the uncleared areas constitute areas of territory that are under the – particularly in the north, not so necessarily in the south – in the east rather, but in the north, the uncleared areas are sharply delineated as areas that are not under the control of the Sri Lanka state but are under the control of the LTTE, and from there has followed efforts to build a state within a state within Sri Lanka.
Basically any person carrying out a function of government in the uncleared areas is line managed, to use your term as officials of the LTTE; correct?
---Yes, I would say so.But there not all members of the LTTE surely?---Well – no, not necessarily, that’s not necessarily the case, one case of one individual who worked in the LTTE bank, who to my knowledge was not an LTTE member, but was nevertheless line managed by one of the financial controllers in the LTTE and I regret that I cannot give you any further in terms of sourcing because it was an expert witness report from an asylum seeker.
There must be literally thousands of people carrying out civil duties and welfare duties in those uncleared areas, correct?---Yes, quite correct.
They don’t have cards or membership tickets or any insignia that suggests that they are part of the decision making process which manages the area; correct?---Yes they would just be – they would just be individuals being paid by working to the LTTE within the uncleared areas. Yes, I can’t see that they would necessarily have anything whether it be a cyanide capsule or a card identifying them. What they also wouldn’t have I think is relevant to say, is probably an ID card that is mandated to be carried by the Sri Lankan Government; they don’t have access to them.
Nor would they have the capacity to participate in decisions about what should happen; right?---Sorry, sorry, could you repeat that?
They would not have the capacity to contribute towards policy making decisions would they?---No, no.
Do you agree with that?---No, I mean the LTTE is authoritarian hierarchical – there isn’t much bottom buck decision making, if any.
One of the major features described by Dr Smith is that during the relevant period, the LTTE operated largely as the de facto government in the northern part of Sri Lanka. The role that might be played by the LTTE and to be played by the LTTE and how it is to be viewed and viewed in the Tamil community, particularly the Tamil community outside Sri Lanka, can also be observed in the evidence in particular of Dr Whitehall and of Dr Selanayagam, and Mr Sivakumar.
Although it is likely that the ceasefire would have broken down by the end of 2004, political events were overtaken by the Boxing Day tsunami. The effect of the tsunami in Sri Lanka was devastating and no lesser in the north. The situation politically was unstable but the ceasefire continued until it ultimately collapsed towards the end of 2005. These offences have to be viewed in that context and go through the whole of the period the LTTE was proscribed in Australia under this legislation. It was operating openly in Sri Lanka in the northern part of Sri Lanka. So although there was a change in the law, which made your conduct unlawful, you were dealing with those who had control of the northern part of Sri Lanka.
The pleas of guilty in this case came after the matter had proceeded for a substantial period. It is none the less true to say that the pleas have a significant utilitarian value and have avoided a trial of six to eight weeks. It is also true to say that at least insofar as the money trail went, there were live issues in the trial.
Time does not sensibly allow me to go through the whole of the details of the prosecution opening which was filed for the purposes of this plea but I may in summary, deal with the matter as follows.
Prosecution submissions on sentence
In the prosecution submissions on sentence, matters were put in the following way. It submitted that considering the circumstances of the offence, it is relevant for the court to have regard to the nature of the asset made available by the accused and to the accuseds' role in making the asset available.
As to the nature of the asset, each of the accused made that most flexible of assets, money, available to the LTTE. It is the prosecution case that for the purposes of sentencing on Counts 1, 3 and 4, the total amount of money made available for the LTTE by the accused, was $1,030,259. This occured over a period between 13 December 2002 and 23 November 2005, as detailed by the financial analyst Carmel Murphy. This amount does not include the ‘tsunami monies’ described by Ms Murphy.
The accuseds' role was such that they presided over the Australian branch of the LTTE as part of a sophisticated, well organized and international operation to collect and transmit monies over a period of three years as charged. The Tamil coordinating committee, the TCCE, was used as a vehicle to covertly collect donations from the Tamil Diaspora in Australia and provide them to the LTTE under the appearance of legitimacy. Vinayagamoorthy provided $97,000 worth of electronic components to the LTTE over a period of about two years. At least 500 encoded transmitters and receivers capable of remotely detonating an improvised explosive device, could be made from the components provided by Vinayagamoorthy to the LTTE. The LTTE routinely used such electronic components in terrorist acts and on the evidence, there was no other reasonable use of them.
It follows that in that opening the prosecution casts the accused in the role of members and controllers of the LTTE in Australia. I accept that submission. I do not do so in a way that goes so far as saying that they were members of a terrorist organization, but in sending funds to the LTTE they took the risk that the funds were being used inappropriately, whatever their belief and desire was. There is ample material from which it can be concluded that the accused knew of the military activities of the LTTE and of their military preparedness even during the period of ceasefire.
Carmel Murphy, the financial analyst referred to earlier, was called on the plea. The actual financial transactions are reasonably complicated however two major issues arose. It was submitted on behalf of each of you that the cost of the radiometric components which were the subject of Count 2, had been included in the total amount and there were also some issues as to just what had been included and excluded in relation to the funds available otherwise for tsunami relief.
It should be noted that it never was part of the prosecution case that any funds forwarded to Sri Lanka for tsunami relief would be the subject of anything to do with these counts. In any event, the amounts forwarded do not, on any analysis, fall below $700,000. So it is clear that very significant funds are in question.
It is true to say that it is not possible to identify with any particularity, apart from some relatively small transactions, what the funds were made available for, but it may have been open for the LTTE to apply funds as they wished.
I am prepared to accept as a general proposition that you were each motivated by a desire to assist the Tamil community in Sri Lanka. I would not go so far as saying that your aims were entirely humanitarian. But I do accept that they were not purposely to assist terrorist activity.
I will deal with the matters put on each plea. Although the pleas were conducted in a different order, I will deal with them in the way that you each appear on the indictment.
Aruran Vinayagamoorthy
You, Vinayagamoorthy, are 35 years of age, having been born in Jaffna, Sri Lanka on 11 May 1974. You grew up in difficult circumstances because of the internal strife and your family, particularly your father, suffered as a result of the dislocation. Your own education was interrupted and your personal freedom restricted by curfew and other conditions imposed in Jaffna. You observed the result of Government gunfire in the streets of Jaffna where people known to you were killed. You were able to come to Australia in 1996 as a refugee, relying upon your position as a Tamil in Jaffna and your support for the LTTE. You were accepted and you became an Australian citizen in January 1998.
You qualified in accounting at Preston TAFE. You were able to return to Jaffna to see your family. Your brother has settled in Australia and you being charged with serious criminal offences has caused difficulty for other members for your family.
You are single and are now working as a courier. Since the raid on your premises in 2005 you have been waiting for these matters to be resolved. Through your counsel it has been put that your involvement in Tamil politics is at an end. Just where Tamil politics will go from here is by no means clear. But Dr Smith, in the most recent material he provided to assist the court, cannot say with any certainty what will happen. Just now though, to say that the military defeat of the LTTE is anything less than utter would appear to understate the proposition.
You have no prior convictions and you have spent 78 days in custody. I do not regard that period as being insignificant. I regard the nature of the earlier charges which you were to face as important and the fact that you might have been seen and publicly held up as a member and supporter of a terrorist organisation was something that each of you had to bear up until February of last year. You were very active in the Tamil coordinating community in Australia and you were, to a large degree, doing the bidding of the LTTE, as of course were a large number of organisations around the world.
In relation to the radiometric devices, the subject of Count 2, you did arrange for the sending of those devices and at least one of them finished up in a landmine. I am satisfied that the material before me is sufficient to establish that fact. It does not follow, however, that you intended that to occur. I accept that there are other uses to which such devices may be put. You said in your own record of interview that you thought they were to be provided for the police. I do not accept that the evidence would take me so far as saying that you had an expectation that the devices would be used for a hostile purpose in the way that is submitted to me by the Crown. You did use your own name when making these purchases, although the funds surrounding the transaction were largely concealed.
One feature of the case is that the AFP knew about at least part of the transactions involving the components and photographed them. They allowed the components to be sent. I would not want this observation to be taken too far but I assume that if the immediate assumption was made that the components were to be used in explosive devices, there might at least have been some reticence about allowing the components to be shipped.
What is clear to me is that the transaction does demonstrate the risk of doing the bidding of others from afar, and does demonstrate how little control you have over how such items are to be used; whether for good on the one hand or for evil on the other. When enthusiasm for the cause overcomes careful judgment, then the risks are high. Of all the charges on the indictment, this is the one which has caused me the most anguish, for obvious reasons.
I do not regard you as being particularly remorseful, but I do accept that you have learnt your lesson and your counsel has asked me to give you the opportunity of getting on with your life.
You did return to Sri Lanka during the ceasefire period. You did meet Mr Prabhakaran and you were able to see the military strength of the LTTE. By that time, there had been an armed struggle going on for many years and those items were not of themselves of any great surprise. It does indicate to me that your work was valued by the LTTE and that you knew it. I accept that many expatriates did take the opportunity to visit Sri Lanka in 2003. Much the same remarks may be made with regard to the visits to Sri Lanka by both you Yathavan and you Rajeevan; your handling of firearms in Sri Lanka has to be seen in that context.
I am satisfied that these matters have to be viewed differently because of the position in Sri Lanka at that time. There is a certain bravado involved with the show of arms in such circumstances, even though hope is still held for the success of a ceasefire. I will take into account that these matters have been pending for a long time.
A character reference from Dr Nagarajah was tendered on your behalf and he gave evidence before me. He spoke well of your contribution to the Sri Lankan community, particularly for the young. He said that you had become isolated from many parts of the community because of these charges. I also received a written reference from Dr Tharamarajah who spoke well of you.
Sivarajah Yathavan
I turn now to you Sivarajah Yathavan. You are 39 years of age and married with a young daughter and a baby son. You have no prior convictions. You were born in Jaffna and your parents were both teachers, your father being principal of the Vimanhaman Secondary College. You have a younger sister who lives in Sydney.
Up until 1993 your upbringing was largely unremarkable. Your family were not politically active. Between 1983 and 1987, you saw and experienced firsthand the result of the internal strife in Sri Lanka. You observed the plight of refugees and life in Jaffna was difficult with properties being frequently shelled and your family was regularly displaced. Your general lifestyle was disrupted. When you were 15, one of your school friends was killed by the authorities and his body dumped near your home. You were not politically active at that time.
In 1987, your father was shot and died from injuries some three days later. The best medical facilities were not available. Your father had been no more than seeking to secure the school records for which he was responsible. The circumstances of his death have never been satisfactorily investigated or explained.
Your aunt sponsored your remaining family to come to Australia in 1988 and you arrived here in September of that year. You had completed Year 11 in Sri Lanka and eventually obtained your VCE in Australia. Although you started a computer science course, you did not complete it. You worked to support your mother and sister. You became an Australian citizen in 1990. You returned to Sri Lanka for a visit in 1993. Among other things, you did some volunteer work for an artificial limb institute in northern Sri Lanka.
After you returned to Australia you moved to Sydney where you started the Ilamarasi Newspaper, a Tamil language newspaper in 1999 and you returned to Melbourne in the year 2000. You first met your wife in 1998 and you married in 2001. Your wife has a commerce degree and has pursued her own career. You worked for the tax office from 2000 to 2003 and remained active in the newspaper and in Tamil affairs. In late 2003 you got the opportunity to learn about property development and you have more recently pursued work as a builder/developer. That business appears to be reasonably successful.
In relation to the general matters on the plea, a number of witnesses were called. Dr Whitehall to whom I have previously referred, gave evidence of his visits to Sri Lanka in December 2004 both before and after the tsunami and his return to Sri Lanka in September 2005. No one could help but be moved by his evidence concerning the general circumstances as he found them. His evidence demonstrated both the positive medical assistance in the Tamil areas of Sri Lanka and the need for support. He gave evidence that the LTTE did provide a de facto government which was highly organised. He was also able to say that in physical development terms, children in the north of Sri Lanka were at the very lowest end of the spectrum internationally.
Mr Sivakumar gave evidence on your behalf. He was secretary and president of the Eelam Tamil Association, which runs about eight weekend Tamil schools and conducts other Tamil cultural and sporting activities for young people and other general community activities. The association has assisted settlement of Tamil refugees in Australia and is active politically as a lobby group, as was the Australian Tamil Association, of which Mr Sivakumar is an executive member. He had contact with you in 2003 in particular, to use your skills in computer design and the written Tamil language, producing posters and tickets et cetera. You were a willing helper and you had particular assistance at a cultural event in the Moorabbin Town Hall, particularly with cooking and cleaning. You assisted Mr Sivakumar with the translation of material into Tamil and in making community broadcasts. Mr Sivakumar said that he had a great deal to do with you since 2003 and regarded you as a calm, dedicated family man. He observed that the presence of these charges put great pressure on you and your family.
He also gave evidence of the wish of the general Tamil community in the period of the ceasefire, to assist the re-establishment of infrastructure in the north of Sri Lanka and I have indicated what the significance of such evidence is. References from Dr Senathirajah and Mr Arumughasamy were tendered on your behalf.
Aramugam Rajeevan
Arumugan Rajeevan, you are 44 years of age. You are the youngest of four children, you have two sisters and a brother. You were born near Kandi, your father died of illness when you were about 17. You have the support of your family.
You grew up in Jaffna and from about 1981 onwards, saw the consequences of civil unrest. In particular, you were moved by the burning of the historically very significant Jaffna library. Your schooling was disrupted, particularly when your family had to move from Jaffna in 1983. Your sister had moved to Australia and you and your mother were able to join her in 1986. You became an Australian citizen in 1988, you attended school and later RMIT, where you obtained a BA in business. You worked as a financial planner and obtained a graduate diploma in international banking and finance.
In 2005, you moved to Sydney for work. You became self-employed in 2007. Dr Sevangegam gave evidence on your behalf. He regards you as a responsible person of quiet disposition. He said that during the late 1980s and early 1990s, he observed your humanitarian work for Tamils in Sri Lanka and that you were later involved in similar work during the tsunami. He did not regard you as having views supporting any terrorist activity and drew a comparison between those in Sri Lanka and those outside Sri Lanka. He also said that you had been very withdrawn since your arrest. He now regarded the LTTE, at least, as being defunct.
Ms Cahill also gave evidence on your behalf. You had worked together between 1992 and 2001, when you were an investment portfolio manager for a company of which she was a director. She regarded you as a man of high integrity, you were highly regarded by your colleagues as loyal and hardworking. She noted your strong interest in the welfare of people within the Tamil community.
In relation to your self-employment, you appear to have some skill in that regard and your business appears to be successful. You married in 1993. You'd met your wife, who is also Tamil, while you were at school, when you first came to Australia. You have two girls together who are at school. You have been dedicated to the Tamil cause in Australia. I may have omitted to note that I received a detailed reference from your wife, who expressed great care for you, and set out the effect that these matters have had on the family.
Sentence
I come now to consider sentence. I have had regard to a vast volume of material which has been tendered, but in particular on the plea, I received the following written material which I have considered in detail. I received a summary of prosecution opening, prosecution submissions on sentence, defence submissions on sentence, submissions on sentence for each of the accused and written references to which reference has already been made.
In the final analysis, my principal findings are these: I am satisfied that each of you were directly connected to and knew that you were dealing with the LTTE. You knew that the LTTE had, at various times during its existence, the reputation of a terrorist organisation. I accept that you did not necessarily accept that characterisation.
I accept that your motivation was to assist the Tamil community in Sri Lanka and thought that the only real vehicle to do so was by dealing with the LTTE. I am satisfied that the general motivation, although having a humanitarian bent, was not solely confined to humanitarian work. I am satisfied that you did not intend to support any activity which you would have regarded as terrorist.
I am satisfied that the seriousness of the offending must, to a large degree, be judged by reference to the prevailing circumstances in Sri Lanka at the time of the offending. It is a peculiar feature of this case that during all, or at least most of the time of the offending, there was a ceasefire in place in Sri Lanka and at that time the LTTE was not a proscribed organisation in Sri Lanka. I accept that the LTTE was for many purposes the de facto Government in the North, while keeping and maintaining its military capability.
When dealing with Counts 1, 3 and 4, it is true to say that large amounts of money were made available. It is not possible to say precisely how much, but large amounts, and to what purpose the funds were put. I have already observed that there is substantial evidence in the case which describes the relationship between the Tamil Diaspora and the LTTE itself, that is, the view of the Diaspora may well have been more reserved and less terrorist-related than the view held by people in Sri Lanka itself.
The situation in Sri Lanka was complicated and driven in part by the proposition that there was really no one else to deal with in the North. The conduct you engaged in is prohibited by Australian Law. I regard this as an instance of offending, dealing with Counts 1, 3 and 4 at the moment, somewhere in the middle of the range. I take that view because of the amounts involved and because, in particular, the inherent risk of providing funds in the way that they were.
There are some matters that are relevant to you all. You are previously of good character. I regard your prospects of re-offending as extremely low and your positive prospects of rehabilitation to be high. You have had these matters hanging over your head in one way or another since November 2005. You, Vinayagamoorthy, and you, Yathavan, have served 78 days imprisonment and you, Rajeevan, have served eight days. You reported on bail for a significant period of time. I do not regard the extended period relating to you, Rajeevan, as being of any significance for the purpose of the sentence which I will impose.
The prosecution submissions on sentence were clear. They were that each of you should be imprisoned and some portion of that imprisonment should be served immediately. I have had regard to those submissions. I was referred to a sentence imposed in the Central Criminal Court in England by Saunders J. The case was R v Chrisantha Kumar. The major offence which that accused was convicted was not dissimilar on its facts from these offences. It did, however, have a major difference, that is, that it was a breach of the actual Terrorist Act in the United Kingdom because the LTTE is, in England, a proscribed organisation for the purposes of that Act. It followed that the offence was a significantly more serious offence and carried a substantially higher maximum term. In that case, His Honour imposed an actual sentence of two years. The accused had served 95 days and was required, “To serve, in all, a year.” That case does point up the real tension involved in sentencing exercises of this kind.
It is important to recognise Australia's International responsibilities in relation to preventing and containing terrorism. One means of doing so is to prohibit here, support being given to terrorist organisations overseas. It is not, however, as simple as that. The particular circumstances of each case and each accused fall to be considered. I have had regard to those matters pursuant to the provisions of the Crimes Act 1914 to which I am required to have regard. In particular, I have had regard to the need for specific deterrence, general deterrence and just punishment.
In relation to general deterrence, there are two distinct features of it. General deterrence has to be viewed as deterring other persons engaging in conduct of this kind. The sub-feature of that is that it would no longer be of quite the same importance, given the events in Sri Lanka, as it might be to persons who would choose to support the LTTE. I have taken all those matters into account.
You Yathavan and you Rajeevan, I sentence you to be imprisoned for one year. I am satisfied, however, that in all the circumstances of the case, you should not be required to serve that sentence immediately, and I direct for each of you that you be released on a recognizance release order in the sum of $1000 to be of good behaviour for three years.
I may not have noted previously, but I note now the maximum term of imprisonment for this offence is five years. It was, at the time of the commission, five years. In that context it probably falls at the lower end of seriousness of offences of this kind at that time.
Your position, Vinayagamoorthy, is more complicated. You face two charges, one of which relates to material which I am satisfied was put to a direct military purpose, if not a terrorist purpose. I have concluded though, in your case, that although a longer period of imprisonment including cumulation is necessary, I have decided that the interests of justice can be satisfied by also releasing you on a recognizance release order.
On Count 1, I order that you be imprisoned for one year.
On Count 2, I order that you be imprisoned for 18 months.
I direct that you commence the service of Count 2 today and order that you commence to serve the sentence on Count 1 12 months from this day. That is, I intend that six months of that sentence be cumulative.
I direct that you be released on a recognizance release order in the sum of $1000 to be of good behaviour for four years.
I have, in each of the cases, fixed what I would ordinarily regard as a relatively long period of time for you to be of good behaviour and you need to understand it. You need to understand with the greatest care that if you come back before me, not having been of good behaviour in the meantime, I will imprison you. I will imprison you for the times that I have set out.
You just need to understand, I suppose, what the effect of the sentences are, and it is this. Although you have each been sentenced to a term of imprisonment, you do not have to serve that term immediately and you will be released. You will be released on you undertaking to be of good behaviour for a period. In the case of you Yathavan, and you Rajeevan, of three years, and in the case of you, Mr Vinayagamoorthy, for four years.
I make a declaration pursuant to the relevant provisions that, in relation to Mr Vinayagamoorthy and in relation to Mr Yathavan, that I declare 78 days as having been served pursuant to this sentence. And direct that my declaration in this regard be recorded in the records of the Court. In relation to you Mr Rajeevan, I order that eight days be reckoned as already served under this sentence and order that my declaration be recorded in the records of the Court.
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