Regina v Mohammad Reza Fayazi

[2017] NSWDC 362

District Court

New South Wales

Medium Neutral Citation:

Regina v Mohammad Reza Fayazi [2017] NSWDC 362

Hearing dates:

13 October 2017

Date of orders:

19 October 2017

Decision date:

19 October 2017

Jurisdiction:

Criminal

Before:

Judge AC Scotting

Decision:

1. The offender is sentenced to a term of imprisonment of eight years to date from 10 December 2013 and expire on the 9 December 2021.

 2. I fix a non‑parole period of four years to expire on 9 December 2017.

Catchwords:

CRIMINAL LAW – Commonwealth offence - plea of guilty – people smuggling – circumstances of aggravation – role of offender

 

SENTENCE – mitigating factors – aggravating factors – circumstances – objective seriousness – specific deterrence – general deterrence – appropriate penalty

 

SENTENCE PRINCIPLES – parity – totality – community values – remorse – contrition

  OFFENDER – background – foreign national

Legislation Cited:

Crimes Act 1914 (Cth)
Migration Act 1958 s.233C

Cases Cited:

R v El Karhani (1990) 21 NSWLR 370
Johnson v The Queen (2004) 78 ALJR 616
Ilam v Dando (1999) 109 A Crim R 47
Feng Lin (2001) 119 A Crim R 194
Cita & Lamha (2001) 120 A Crim R 307
Cameron v The Queen (2002) 209 CLR 339
Danial v R [2008] NSWCCA 15
Lee v R [2012] NSWCCA 123
Bahar v The Queen [2011] WASCA 249

Category:

Sentence

Parties:

Regina (The crown)
Mohammad Reza Fayazi (The Offender)

Representation:

Counsel:
Mr P Hogan (The Crown)
Mr M Shaw (The Offender)

  Solicitors:
Commonwealth Director of Public Prosecutions (The Crown)
Jeffreys Lawyers (The Offender)

File Number(s):

2014/00054493

Publication restriction:

None

sentence

1. Mohammad Reza Fayazi appears for sentence after pleading guilty in the District Court to one count of aggravated people smuggling contrary to s 233C of the Migration Act 1958.

2. The maximum penalty for the offence is 20 years imprisonment and/or a fine of $420,000 or both.

3. The offender has asked the Court to take into account five counts of people smuggling pursuant to s 16BA of the Crimes Act 1914.

Facts

4. The parties presented a statement of facts that can be summarised as follows.

5. At about 6.22pm on 6 February 2013 the Royal Australian Navy attached to HMAS Maitland boarded a vessel designated SAEV586. The vessel was situated at approximately 11 nautical miles east-south-east of Christmas Island when it was intercepted and escorted to Christmas Island. The vessel was carrying one Indonesian crew member and 88 Iranian passengers who were intent on claiming asylum in Australia.

6. Of the 88 people on board, 13 provided information to the Australian Federal Police regarding the offender’s role in facilitating their passage to Australia. The offender was known to them as Saman, an Iranian who spoke Farsi and some Indonesian.

7. The following information was obtained from the relevant passengers;

Tahmoures Vafaie

8. Mr Vafaie and his family contacted the people smuggling in Iran known as Farmani to arrange passage to Australia.

9. Mr Vafaie and his family travelled to Jakarta from Iran on 29 December 2012. He went to a hotel where a number of other Iranians were also staying. These other Iranians were using the services of Farmani to travel to Australia. One of the other people told Mr Vafaie that he had been given the number of a man named Amoui, an Indonesian based people smuggler by Farmani.

10. On 30 December 2012 one of the other Iranians phoned Amoui who provided a phone number for a man named Saman. Amoui gave instructions to meet at the Britannia Markets in Cisarua.

11. Mr Vafaie the other Iranian went to the Britannia Markets and met with Saman.

12. During the meeting Mr Vafaie was standing with a number of other Iranians. Saman led them to taxis and gave them instructions to follow him to another location. Saman told Mr Vafaie and the other Iranians that he was there on Amoui’s behalf and that they would stay at the villas for a while. Saman told them not to go outside very much especially at night time.

13. Mr Vafaie stayed at the villas for approximately 25 days. During this time Saman visited about five or six times. Saman assured Mr Vafaie and the other Iranians that they would be leaving shortly.

14. On the morning of 3 February 2013 Saman arrived at the villa and instructed Mr Vafaie and the other Iranians to get into waiting vehicles. They were then taken to the vessel which was to bring them to Australia. Mr Vafaie took part in an identification procedure. He was not able to identify any person.

Hossein Salehi-Farismaneh

15. Before he left Iran Mr Salehi-Farismaneh made arrangements with a friend named Mustafa to deposit 20 million Toman into the account of the people smuggler known as Farmani. The payment of the funds was to facilitate his travel to Australia.

16. On arrival in Jakarta in late December 2012, Mr Salehi-Farismaneh went to a hotel where he stayed with a number of other Iranians. The next day a group of the Iranians hired a mini-van and went to a villa in Cisarua. There they met a man named Saman.

17. Mr Salehi‑Farismaneh stayed at the villa for about one month and then a second villa for about ten days. He was then taken and stayed in a third villa with about 30 other people. Several hours later he was picked up along with the other people and taken by vehicle to a beach. It was at this beach that he boarded the vessel for travel to Australia.

18. On 6 March 2014 he took part in an identification procedure but was unable to identify any person.

Hamidreza Rasuolizadeh

19. Mr Rasuolizadeh left Iran in about 2012 travelling from Tehran to Jakarta via Bali. He did so with the use of a false passport under the name of Hassan Mohammad Forooghi.

20. In Jakarta Mr Rasuolizadeh stayed at the Mediterranean Apartments. A number of other Iranians were also staying there. Whilst at the apartments he decided to travel via boat to Australia. He enquired about contacting a people smuggler and was given the name of a man Naghi Karimi. He contacted Karimi and told him that he wanted to go to Australia. Karimi informed him that it would cost $5,000 US dollars up front.

21. Some days later Mr Rasuolizadeh met Karimi at a bar in Taman Rassula. He paid Karimi sum of $5,000 US dollars. Karimi told him that someone would contact him to organise the trip to Australia.

22. About four or five days later he was contacted by a person known as Saman. Saman told him that he was representing Karimi. He later met Saman at his apartment and Saman facilitated the move to another apartment.

23. The next day Saman organised for Mr Rasuolizadeh and five other Iranians to go via taxi to a villa called Julia in Cisarua. Saman travelled in a separate taxi to this villa. On arrival Mr Rasuolizadeh saw about 30 other Iranian males. He was then instructed to go with the other Iranians to a number of vans that were waiting nearby. He entered one of the other vans and travelled about ten hours to Surabaya.

24. At about 1am he exited the van and walked through the jungle to the beach. He boarded a speed boat and was taken to a larger boat for the journey to Australia.

25. On 12 March 2014 he participated in an identification procedure but could not identify any person.

Navid Honarkar Ashena

26. Mr Ashena was given the contact number of an Iranian people smuggler known as Behrouz Farmani. Mr Ashena paid Farmani 10 million Tomans. They met in Tehran and Farmani gave Mr Ashena a plane ticket to Jakarta via Dubai. Mr Ashena then paid Farmani another 6 million Tomans.

27. In about late 2012, early 2013 Mr Ashena left Iran travelling on a passport in his own name. Farmani had given Mr Ashena a phone number of the person called Amui to call upon arrival in Jakarta and told him that Amui would make all of the necessary arrangements for travel to Australia.

28. Mr Ashena called Amui once in Jakarta and was given the details of a man named Saman. Mr Ashena met Saman who took him to his accommodation.

29. About three days after arriving in Jakarta Saman arranged for Mr Ashena to go to a villa known as Elsa near Cisarua. Once at the villa Saman took Mr Ashena’s mobile phone and the phones of the others staying with him at the villa.

30. Mr Ashena remained at the villa for about one and a half months. After this time Saman arrived and organised Mr Ashena’s travel to another villa, and then on a boat to take him to Australia.

31. On 5 March 2014 Mr Ashena took part in an identification procedure. He identified a picture of the offender as the person whom he knew as Saman.

Mostafa Abedimpour

32. Mr Abedimpour departed Tehran for Bali on 26 October 2012. He was travelling on an Iranian passport in his own name. He arrived in Jakarta three days later. Once in Jakarta he met a man named Dawood who had been told that they would arrange his transportation to Australia.

33. Mr Abedimpour’s uncle who was in Tehran made a payment of $6,000 US dollars via a person known as Reza to an Iranian people smuggler known as Matin.

34. About three weeks later Mr Abedimpour moved to Cisarua with five other Iranians. By this time Mr Abedimpour believed that Dawood could not assist him. When in Cisarua Mr Abedimpour contacted a person known as Amoee. Amoee told Mr Abedimpour that he could arrange his travel to Australia for $3,200 US dollars.

35. Amoee arranged for Mr Abedimpour to move to another villa where he stayed for another month. Whilst at this villa Mr Abedimpour met a man called Saman. Saman visited the villa six or seven times during this period giving reassurances that the boat was being arranged.

36. On several occasions Mr Abedimpour saw Saman pay the rent for the villa in Indonesian rupiah.

37. Sometime later on a Sunday afternoon Mr Abedimpour left the villa in one of several vehicles. He travelled to a small boat which transferred him to a larger boat. This vessel transported him to Australia.

38. On 5 March 2014 Mr Abedimpour took part in an identification procedure. He identified a photograph of the offender as the person he knew as Saman.

Moshen Foroughmehr

39. Mr Foroughmehr travelled on the 23 October 2012 to Jakarta from Iran. He met a people smuggler named Matin, also known as Mehdi Lutfizadeh. He paid money to Matin in order to be smuggled to Australia. However Matin disappeared without providing any services.

40. He then moved to Cisarua. There he met two people smugglers named Nader Amiri and Saman. He then got a number for Saman’s boss Naghi Karimi who was also known as Amoo. Saman acted as an agent for Karimi.

41. Mr Foroughmehr contacted Karimi and made arrangements to stay in a villa and to pay $3,200 US dollars for travel to Australia by boat. Mr Foroughmehr did not meet Karimi but did meet Saman on at least two occasions and he understood Saman organised the accommodation.

42. At their first meeting he gave Saman $1,300 US dollars which Saman counted and wrote his name down on a piece of paper. Mr Foroughmehr also gave Saman his passport which he took away to photocopy but did not return. Saman told him that he would give the money to Karimi. Five days later Mr Foroughmehr paid the outstanding $1,900 US dollars to an account in Iran which he believed belonged to Karimi.

43. Mr Foroughmehr stayed at the villa for about one month before he was picked up and taken in a van to a boat for his trip to Australia.

44. On 12 March 2014 Mr Foroughmehr took part in a photo board identification procedure. He identified a photograph of the offender as the person he knew as Saman.

Moshen Valadpoor

45. In about October 2012 Mr Valadpoor decided to leave Iran out of fear of religious persecution. At about this time he met a man called Farmani via a friend. Mr Valadpoor believed that Farmani was a people smuggler who could get him out of Iran.

46. Mr Valadpoor met Farmani in about November 2012. Farmani agreed that Valadpoor would pay him 18.5 million Tomans for a plane ticket to Indonesia, rental of a villa in Jakarta and a boat trip to Australia. Mr Valadpoor gave Farmani his passport and then paid the money into his bank account.

47. Three weeks later Mr Valadpoor met with Farmani who returned his passport. Farmani gave him a plane ticket to Jakarta and the telephone number of a person named Saman who would look after him whilst he was in Indonesia. Mr Valadpoor left Iran on or about the 22 December 2012 and arrived in Indonesia on either 23 or 24 December 2012. Whilst on the plane he met five other Iranians who were also trying to get to Australia.

48. In Jakarta Mr Valadpoor met the other Iranian men from the flight. One of them called Saman. They then travelled via taxi to a villa on the outskirts of Jakarta where the other Iranians were staying.

49. About two or three weeks later Mr Valadpoor met Saman who had come to the villa to speak to the occupants.

50. About two weeks later Mr Valadpoor and some other Iranians moved to another villa that was organised by Saman. About two weeks later a number of vans arrived at the villa. Saman said they were to remain at the villa until it was time to leave.

51. About three days later Mr Valadpoor and the other Iranians got into the vans and were driven about seven hours to the ocean. On arrival they were led by locals through the jungle to small boats waiting close to the shoreline. Mr Valadpoor and the others were transferred to a larger boat for the trip to Australia.

Farsahd Alaie Qhiasvand

52. Mr Qhiasvand decided to leave Iran as he was Kurdish and did not have any rights as a citizen in Iran. He met with a man Behrouz Farmani told Mr Qhiasvand that he could get him to Australia for $6,500 US dollars. The price included a fake passport, airline tickets, accommodation and food. Mr Qhiasvand’s father transferred the money into a bank account.

53. At their second meeting Mr Qhiasvand was given a fake passport, the airline tickets to Jakarta and the name and contact number of a person in Indonesia. Mr Qhiasvand flew to Jakarta with four other Iranian men. On arrival in Jakarta he met four more Iranian men and called the phone number he had been given for the person named Naghi Karimi. They spoke and Karimi told him to wait until morning.

54. The next morning Mr Qhiasvand received a call from a man called Saman. Saman told him to take a taxi to Cisarua. When he arrived at Cisarua he phoned Saman and was directed to a nearby house where he met at least ten other people who said they were waiting for a boat.

55. Mr Qhiasvand stayed in Cisarua for about 26 days. During this time he met Saman a number of times. Saman asked if he needed food or blankets. Saman told Mr Qhiasvand to stay inside and not to get caught by the police.

56. About ten days before arriving in Australia, Saman collected Mr Qhiasvand’s mobile phone. On his last day Saman told him to get ready as the vans were coming to collect him and take him to the boat. The vans arrived later that day and Mr Qhiasvand was driven in the van to the jungle where he was met by locals and guided to a small boat. He was taken out to see and transferred to a larger boat for the trip to Australia.

57. On 11 August 2014 Mr Qhiasvand took part in an identification procedure. He identified a photograph of the offender as the person he knew as Saman.

Ghulam Rez Gandom Kar Mohammad Abadi

58. In around December 2012 Mr Abadi decided to leave Iran for Australia. Mr Abadi met the man named Behrouz Farmani in Iran. Farmani told him he could help him to get to Australia for $6,000 US dollars.

59. At their second meeting Mr Abadi paid Farmani the money and gave him his passport and mobile telephone number. About two weeks later Mr Abadi met Farmani again and received his plane tickets and a phone number for a person named Mr Amoei. Mr Abadi flew out of Iran on or about 15 or 16 January 2013 arriving in Jakarta on the same day.

60. In Jakarta Mr Abadi phoned Mr Amoei who told him to take a taxi to a hotel. He checked in for one night only. The next day Mr Abadi phoned Mr Amoei again who said he would take him by taxi to a shop to meet with an Iranian named Saman.

61. The taxi took Mr Abadi to a shop in the Cisarua region of Jakarta. He met with Saman.

62. Saman arranged for Mr Abadi to be taken to a nearby villa where 15 other Iranian men were living. The villa was called Villa Dinar. Saman arrived later that day and introduced him to the other men telling Mr Abadi to stay in the villa and not to get caught by the police.

63. About eight days later Saman returned to the villa. He took Mr Abadi’s mobile phone and told him he would be leaving in a couple of days. Saman returned a couple of days later telling Mr Abadi that the vans would be coming to transport him the next day.

64. Saman arrived the next day with three vans. He told Mr Abadi they would take him to the location where he would get on to small boats and then on to a bigger boat. Mr Abadi got in the van and was driven into the jungle. He was met by locals who guided him and the other Iranian men to the beach where small boats were waiting. The small boats took Mr Abadi and the other men to a larger boat.

65. On 12 August 2014 Mr Abadi took part in an identification procedure, he could not identify any person.

Mojtaba Jahanmehr

66. Mr Jahanmehr decided to leave Iran in about November 2012 due to his interest in Christianity. His uncle knew of a people smuggler named Behrouz Farmani who could help him get to Australia. Mr Jahanmehr met with Mr Farmani who told him that he could arrange him to get to Australia for $6,500 US dollars. Mr Jahanmehr agreed and paid the money and got a phone number to call on his arrival in Jakarta.

67. He was told to get his airline ticket from a particular travel agent in Tehran. The ticket was booked for 28 October 2012 travelling from Tehran to Jakarta.

68. In Jakarta Mr Jahanmehr rang the phone number he had been given, the un-named person who answered told him to take a taxi to Cisarua region of Jakarta. When he arrived he was directed to a villa where about 20 other Iranians were staying.

69. About a week later a man named Saman came to see Mr Jahanmehr and said he would let him know when he could go to Australia.

70. About two and a half weeks later, Saman returned and told Mr Jahanmehr that it was time to leave. He was moved to another house and waited for a few more weeks. During this time Saman told Mr Jahanmehr the journey to Australia was delayed due to high season flooding.

71. One day three vans arrived. Mr Jahanmehr got into one of them. He was driven into the jungle at night. Was met by locals and escorted to the beach. He was taken by small boat to a larger boat. The larger boat had about 80 people on it with one crew member.

72. On 11 August 2014 Mr Jahanmehr took part in an identification procedure. He identified a photograph of the offender as the person he knew as Saman.

Mehdi Ozry

73. Mr Ozry decided to leave Iran towards the end of 2011 as he continually got into trouble for not being religiously observant and was repeatedly arrested for it. In around mid-2012 he began searching for someone who could help him get to Australia.

74. Mr Ozry obtained a phone number for a man Ghorban Farji. They arranged to meet at Farji’s real estate agency. Farji told Mr Ozry that it would cost 5 to $6,000 US dollars to get to Australia. Mr Ozry paid the agreed price which covered tickets to Jakarta, accommodation and a place on a boat to Australia. Mr Ozry handed over his passport to Farji.

75. About 15 days after their meeting Mr Ozry received airline tickets from Farji. His returned passport and a phone number for a person named Mr Farmani in Indonesia.

76. Mr Ozry left Iran on 31 December 2012 and flew to Jakarta. When he arrived he travelled by taxi to a hotel and phoned Farmani who told him to ring a person named Amooyi who could help him. Mr Ozry rang Amooyi who told him to go to Cisarua and that someone named Saman would meet him there.

77. Mr Ozry travelled to Cisarua and met Saman at a local shopping centre.

78. Mr Ozry was taken to a nearby villa by Saman. A number of other Iranian people were staying there. Saman told Mr Ozry that they would be going to Australia within a week. Mr Ozry remained at the villa for about a month and saw Saman on most days as he would bring him food and money and also reassure Mr Ozry that he would be leaving soon.

73. One month passed, Saman told him that the path was clear and he would be going to Christmas Island in Australia. The next day three vehicles arrived at the villa. Saman directed Mr Ozry into one of the vehicles and along with the other Iranians was driven into the jungle area. They were met by locals and taken to small boats where they were transferred to a larger boat.

74. On 6 August 2014 Mr Ozry participated in an identification procedure. He could not identify any person.

75. Sajad Motref Bazghale

76. Mr Bazghale decided to leave Iran in about 2012. He was not a very religious person and this was making his life very difficult. He obtained a phone number for a person named Hamid. He made an appointment to meet Hamid with a friend of his named Mehdi Feizollahi in Tehran.

77. Hamid told the men that it would cost about $5,000 US dollars each to go to Australia via Indonesia. A few days later Hamid provided them with airline tickets.

78. The men flew out of Tehran in late December. They arrived in Jakarta on 25 December 2012 and checked into a hotel. Mr Feizollahi rang Hamid and obtained the number for a man named Amooyi. Mr Bazghale stated he later heard Amooyi’s real name was Naghi Karimi.

79. Mr Feizollahi rang Amooyi who told them to go to Cisarua and to meet at a particular shop. Mr Bazghale and Mr Feizollahi travelled as direct by Amooyi and met with a man named Saman who told them both that he does Amooyi’s work for him. Saman directed them to get into one of two vans and drove them to a villa where between 15 to 20 other Iranians were staying. Mr Bazghale and Mr Feizollahi stayed at the villa for more than 40 days. In this time Saman visited and would bring people money for living expenses.

80. After about a month Saman arrived at the villa. He organised all of the Iranians into three groups directing Mr Bazghale and Feizollahi into one of the vehicles he had with him. They were driven to a village in the jungle where they were met by locals, taken to small boats, and transferred to a larger boat waiting offshore.

81. On 1 August 2014 Mr Bazghale took part in an identification procedure. He identified a photograph of the offender as the person he knew as Saman.

Ali Farjoudi

88. Mr Farjoudi stated that in late 2012 he decided to leave Iran due to experiencing hardship at the hands of the government. He became aware of a man named Farmani through a friend of his named Kanani. Kanani told Mr Farjoudi that Farmani would be able to get him to Australia by Indonesia for $5,000 US dollars. Mr Farjoudi agreed and paid a deposit or Kanani to give to Farmani with the balance to be paid in Indonesia.

89. About three weeks later Kanani rang Mr Farjoudi and told him that his airline ticket was ready. Mr Farjoudi collected the ticket from Kanani who also gave him the phone number of a person in Indonesia Saman who would meet him when he arrived.

90. Mr Farjoudi flew to Jakarta in January 2013. When he arrived he phoned Saman who told him to go to a villa via taxi. Mr Farjoudi did so and stayed at the villa with another 15 Iranians already staying there for about 20 days. In this time Mr Farjoudi arranged for the balance of the $5,000 US dollars to be paid to Kanani.

91. Approximately ten days after arriving Mr Farjoudi met Saman at the villa and they discussed travel to Australia. One day Saman arrived at the villa and told Mr Farjoudi that he would be leaving soon. A number of vans arrived and he was taken to the boat.

92. On 30 July 2014 Mr Farjoudi took part in identification procedure but could not identify any person.

Emails and Facebook conversations

93. Several emails from a Hotmail and Facebook conversations posted by accounts linked to Karimi were tracked by the Australian Federal Police. References made in email dated 28 February 2013 to a vessel, and the names of the passengers including Mr Ashena, Mr Farismaneh, Mr Vafaie and Mr Rasuolizadeh.

94. A series of Facebook conversations posted by Karimi between himself and Babak Zartoshti discussed 6 February 2013, the date of the arrival of the vessel and about calling the vessel on the satellite phone. One of those messages made reference to the offender and his passport number.

95. Karimi and Zartoshti then discussed making payment for Karimi’s wife to travel on the vessel to Australia. Initially it was indicated that the money should be paid to the offender, but later Karimi requested the money be paid to another person in Jakarta.

Matters on the s 16BA certificate, items 1 to 4

96. At about 6pm on the 10 December 2012 the Royal Australian Navy personnel from HMAS Larrakia boarded a vessel designated SIEV558 which was situation in the Australian contiguous zone, approximately 2.5 nautical miles north of the Ashmore Islands.

97. The vessel was carrying two Indonesian crew and 57 passengers consisting of Iranian, Iraqi and Nepalese nationals. All were intending to claim asylum in Australia. Among the passengers, four of them were identified to have been assisted by the offender in attempting to come to Australia. Being Vahid Amou Ramzan Zadeh-Fard born 15 August 1975, Majid Ghafari born 2 January 1979, Vida Masumzadeh born 12 February 1982, the wife of Mr Ghafari and Sam Ghafari born 2 October 2006, the son of Mr Ghafari.

Vahid Amou Ramzan Zadeh-Fard

98. Mr Zadeh-Fard left Cypress in about October 2012 having lived there as a refugee for the past 15 years. He travelled from Cypress to Turkey but was turned away by Turkish authorities due to an issue with his documentation. He was deported back to Iran. Once in Iran he contacted Karimi who instructed him to fly to Indonesia. In Jakarta he attempted to call Karimi without success. He then went by taxi to an apartment where a number of other Iranians were staying and was given the contact details of a man named Saman. Mr Zadeh‑Fard met with Saman who told him that he worked for Karimi. Saman called Karimi while Mr Zadeh‑Fard was present.

99. Mr Zadeh‑Fard spoke with Karimi who told him he would have to pay $7,000 US dollars to go from Indonesia to Australia. Mr Zadeh‑Fard paid Saman 3,000 Euros being all the money he had at the time and said he would sort the rest out later then returned to the apartments.

100. The next day he spoke with Karimi again and after some negotiating Karimi agreed to accept a further €200 Euros which he paid to Saman. Mr Zadeh‑Fard argued with Saman about the money he paid and the lack of food. On one occasion he met Saman outside the apartments when Karimi was present. Mr Zadeh-Fard recognised his voice as the person he had spoken to on the phone. Saman apologised to him for being rude while Karimi was present.

101. On another occasion Saman came to the apartments to collect people’s phones. After some agreement Mr Zadeh‑Fard was allowed to keep his phone but handed over the SIM card.

102. About two days later Saman came to the apartments and told them they would be leaving soon. They were taken to taxis to the airport and caught a flight to Makassar and met a local. The local person’s name was Uncle Naghi.

103. Mr Zadeh‑Fard thought this might have been Karimi. Mr Zadeh‑Fard then stayed in a hotel for two days with some other Iranians. They were then taken to a beach where smaller boats took them to a larger boat. The larger boat sailed from Indonesian waters and travelled for about four days before reaching the Ashmore Islands, and being escorted to Christmas Island.

104. On 5 March 2014 Mr Zadeh‑Fard took part in an identification procedure but could not identify any person.

Majid Ghafari, his wife and son

105. Mr Ghafari left Iran for Indonesia with his wife and son on 6 June 2012. They intended to seek asylum in another country. Before leaving they made arrangements by telephone through a people smuggling agent named Younnus. They paid $16,000 US in total for the three of them. They were directed to the Mediterranean Apartments in Jakarta where they stayed with another family for about a week. They then moved to another room and remained there for about three weeks.

106. They were instructed not to speak to anyone about their travel plans and to avoid going outside.

107. Sometime later Mr Ghafari and his family were collected with other people and driven to the harbour and placed on one of two ferries. After the ferries left they were turned back by the Indonesian Police and arrested. They stayed in immigration detention for about 21 days before being released and then spending the next three months moving between other apartments.

108. Mr Ghafari got in contact with and met another people smuggling agent named Saman who he understood worked for a partnership of smugglers named Naghi Karimi and Mehdi Kurd.

109. Saman moved Mr Ghafari and his family to another apartment within the Mediterranean Apartments building where they had met Karimi. Saman described Karimi to Mr Ghafari as his boss and the main people smuggler. Karimi agreed to pay Mr Ghafari $6,000 US dollars, being a discount for his family after they were ripped off by the other people smuggler. The money was transferred to Karimi’s brother in Iran.

110. About two weeks later Saman called and told Mr Ghafari they were to fly from Jakarta to Makassar and provided them with tickets. Four nights later they were collected in taxis and taken to a jetty, told to hand over their passports and phones. They boarded a large wooden fishing boat with four Indonesian crew and about 57 people, mainly from Iran, Iraq and Burma.

111. On 4 March 2014 Mr Ghafari took part in an identification procedure. He identified a photograph of the offender as the person he knew as Saman.

Item 5

112. At about approximately 6am on 25 March 2013 Royal Australian Navy personnel from HMAS Bundaberg boarded a vessel situated 159 nautical miles north‑west of Christmas Island. They were responding to a request for assistance. The vessel was crewed by three Indonesians and was carrying 102 passengers mainly of Iranian, Afghani and Pakistani nationals who were intent on claiming asylum in Australia.

113. One of the passengers Benham Daniyali was identified as being facilitated by the offender. In late 2012 Mr Daniyali decided to leave Iran and seek asylum in Australia. In about September 2012 he enquired with a friend of his named Hassani. He made enquiries and was told it would cost him 28 million Tomans for a fake Iranian passport, airline costs, accommodation and passage to Australia. Mr Daniyali paid some of the money and received a fake Iranian passport and later collected plane tickets from a travel agency in Iran and flew to Kuala Lumpur, Malaysia before flying to Jakarta.

114. In Jakarta he contacted Hassani who gave him the number of a people smuggler named Amir Salmi. Mr Daniyali spoke with Salmi who told him someone named Hamid would collect him from the airport and take him to a hotel. The next day a person named Saman phoned Mr Daniyali and instructing him to go to the Mediterranean Apartments where he shared a room with about 15 other asylum seekers. He was told not to leave the apartment.

115. Due to some delay in the journey Mr Daniyali and some of the other residents of the apartments became restless demanding that their money be returned and that they be allowed to go back to Iran. Karimi told them that the money could not be returned and sought to calm their concerns by telling them that a boat had been arranged and would sail soon. Before leaving Karimi collected the peoples mobile telephones leaving only one per apartment.

116. About two weeks later Saman contacted the mobile for Mr Daniyali’s room and instructed them to be ready for collection. At about 2am the next morning Mr Daniyali got into a van with nine other Iranians and were driven to a location. When they arrived there was no boat, and after speaking to Saman they were taken back to the apartments.

117. About two months later Mr Daniyali called Saman asking him to come to the apartments as one of the other men was sick. When Saman arrived five of the men grabbed him, tied him to a chair and demanded he call Karimi to ask him to come to the apartments. Karimi arrived with eight Indonesian men. Mr Daniyali was threatened and beaten before being handcuffed and removed to another location for 14 or 15 days before being taken back to the apartments.

118. On 20 March 2013 he was told by another man Esi to take a taxi to a jetty called Angel Park. He did so with four other people and was transferred to a waiting boat before being transferred to a larger boat with 108 passengers.

119. On 6 March 2014 Mr Daniyali participated in an identification procedure and identified a photograph of the offender as the person who he knew as Saman. Mr Daniyali’s name was found on a list within the second email from Karimi to Farmani.

The offender’s evidence in the sentence proceedings

120. The offender tendered a report of Anthony Diment Consultant Psychologist which can be summarised as follows.

121. The report was prepared after Mr Diment interviewed the offender at Parklea Correctional Centre, largely in English, but with the assistance of an interpreter.

122. The offender was born in Tehran and is the eldest of two sons. His father, mother, and brother all reside in Australia on safe haven protection visas. His father is 51 years old and works at a car wash in Sydney. His mother is 46 years old and is studying. His brother is 19 and studying a course in construction management at TAFE. The offender described his family as being very close and supportive. The offender described his custodial visits from his family each week as a blessing.

123. The offender reported doing well at school with English being his best subject. He also took part in sports such as soccer and gymnastics. He described himself as an average student. He was social and would go out on the weekends and had some prior experience with smoking hashish from about the age of 16. He occasionally drank alcohol but not get in trouble for it in Iran.

124. The offender completed High School to year 12 equivalent and then undertook compulsory national service for nine months and two days. He then opened a gift shop for about two years. The gift shop began to lose business to its competitors. In 2010 due to economic sanctions the offender’s father lost his business. They sold alcohol to make money on the black market for a short time. They were raided by the authorities on a number of occasions.

125. A semi-government militia assaulted his mother and father and also pushed the offender through a window. He sustained injuries to his arm. His father moved away in order to avoid further attention from the authorities and the offender, his mother and brother moved in with his grandmother. The offender’s mother returned to the family home at one point to collect some belongings and was confronted by the militia.

126. The family decided to leave Iran and try to come to Australia. They made contact with people smugglers in Iran. The family left Iran on the 27 March 2012 which was the offender’s birthday. The offender had a valid passport but his parents did not. The offender’s father sold land in Iran to pay for the necessary arrangements and the people smugglers and this took some time to finalised.

127. The offender and his family remained in Jakarta for about three months. Their first attempt to reach Australia failed as the boat was full of holes. The people smuggler wanted more money and told them that only three of the family could make the next attempt, and that either the offender or his father would have to stay behind and help him to pay for their passage to Australia.

128. The offender stayed behind in Jakarta. His family and particularly his mother were very distressed. The offender told the psychologist that he worked for the people smuggler in order to pay his way onto another boat. At first the offender cooked and cleaned for the people smuggler but after a short time he was asked to do more, and he did what he was told to do. The offender told the psychologist that when he was arrested his father sent more money to Indonesia.

129. When he got the money in early December 2013 he went on a boat and was taken to Christmas Island over three or four days. His boat was escorted to Christmas Island. He was then sent to Darwin and then to the Immigration Detention Centre at Villawood.

130. The offender has been in custody since that time. The offender said that his only intention was to work off and to be able to pay for another trip to be re-united with his family.

131. The offender accepted that he did help the people smuggler.

132. The offender gave a medical history of experiencing a loss of sensation in his hand as a result of the injuries he incurred in his encounter with the militia. He has received extensive physiotherapy for that problem in the past. He also suffers from bladder problems that require him to urinate frequently. He takes medication for this problem and has had some investigations for it in the past. In custody he has been worried about his future and has lost his ambitions. The psychologist administered psychometric testing. The offender scored in the severe range for depression and as being at a moderate risk for emotional and behavioural difficulties including suicidal ideation.

133. The psychologist concluded that the offender is clinically anxious and depressed and opined that he fits within the diagnostic criteria for major depressive disorder and generalised anxiety disorder. The psychologist recommended that he receive psychological treatment for his condition, including medication and counselling, and that much of his condition will be alleviated by reunion with his family. The psychologist opined that the offender has expressed genuine remorse.

Letter from the Offender

134. The offender expressed remorse and acknowledged the effect of his actions on the Australian community. I have taken the balance of the letter into account but the contents are expressed elsewhere, and it is not necessary to repeat this matters.

Statutory Declaration of Ali Reza Fayazi

135. The offender tendered a statutory declaration from his father Ali Reza Fayazi sworn 5 October 2017. The offender’s family and friends were in Court to support him at the sentence hearing. His father gave evidence of the prior attempt to come to Australia. He said that the boat sank in the ocean and that they had to go back to Indonesia. They lost all their belongings including all the money they had. He described the situation as being bad for all of them. They had to wait in Indonesia for the smuggler to arrange another boat. After about a month in August 2012 the smuggler asked for more money to send them to Australia.

136. The offender’s father told the smuggler that he paid him all the money that he had, and that because they had failed on the first occasion he should not have to pay more. The smuggler told him that he could send three people this time and that either the offender’s father or the offender had to stay in Indonesia and help with the operation in order to be able to send them on another boat.

137. The offender’s father took issue with the people smuggler but he would not accept the resistance. After they arrived in Australia, the offender’s family applied for protection. They were given protection visas on 15 February 2016. He gave evidence that when the offender was left in Indonesia that he had no money or belongings. The offender’s father gave evidence that was corroborative of the history provided by the offender to the psychologist. The offender’s father said that he regretted his decision every day that he got off the boat and left his precious son behind.

138. The offender’s father gave evidence that the offender has changed since he has been in custody in Australia. He thinks he is more calm and patient than previously. The offender’s father outlined that the offender’s mother cries every day and she is upset all the time. The offender’s father described the position as the worst time of their lives in Australia, particularly seeing his adorable son behind bars. He asked the Court to take into account that the offender was a refugee himself.

Statutory Declaration of Golhab Reza Rajbi

139. The offender also tendered a statutory declaration of Golhab Reza Rajabi sworn 26 September 2017. Mr Rajabi was a family friend of the offender’s father and was on the first boat trip from Indonesia with the offender and his family that had to be abandoned. In addition the offender tendered two references from Chaplains he has had contact with whilst in custody. They describe him as a devout Christian who follows direction and has fitted in within the Correctional Community.

Sentencing Principles

140. I must have regard to Part 1B of the Crimes Act 1914 in passing sentence, and in particular the matters provided for by s 16A of the Act. The Court in determining a sentence in respect of a person for a Federal offence must impose a sentence that is of severity appropriate in all the circumstances. The Court must take into account the matters listed in s 16A(2) that are relevant and known to the Court: R v El Karhani (1990) 21 NSWLR 370. The list of factors provided in s 16A(2) of the Act is not exhaustive and the Common Law principles apply to the sentencing of Federal offenders: Johnson v The Queen (2004) 78 ALJR 616 at [15].

141. I have taken into account the objects set out in the s 4 of the Migration Act 1958. The intermediate and appellate Courts have identified the following relevant propositions. The unlawful entry of non-citizens into Australia is a serious violation of its sovereignty and national security: Ilam v Dando (1990) 109 A Crim R 47 at [13]. Australia is particularly at risk because of the size of its coastline, the detection, law enforcement, and prosecution of such offences impose an enormous administrative burden and financial cost that is shared by the Commonwealth, the States and the Territories. There are significant health and quarantine risks as well as potential disruption to society: Feng Lin (2001) 119 A Crim R 194 at [3] and [51]; Cita & Lamha (2001) 120 A Crim R 307 at [25]-[28]. The passengers brought to Australia in illegal people smuggling operations pay large sums of money and risk their safety and health on un-seaworthy vessels in the promise of a better life in Australia.

Consideration

Objective Seriousness

142. It is necessary to identify the part played by the offender in bringing the illegal non‑citizens into Australia.

143. The offender identified himself to the people as working for or representing Karimi. He arranged accommodation and transport as well as providing them with money and food. He instructed them to stay close to their accommodation, not to speak about their travel plans and not to be detected by the Indonesian authorities. He moved the people from place to place to avoid their detection by those authorities. He took the people to the boats for transfer to Australia and by reason of his own experience knew that the boats could be un-seaworthy.

144. The offender collected money from time to time for Karimi, but did not do any of the negotiations. He was polite to the people and assisted them. He was not involved in the stand over tactics that followed him being detained by the people on one occasion. He dealt with a large number of people on behalf of Karimi. He acted as conduit for communication between Karimi and the people and generally affected Karimi’s instructions to do things like collecting mobile phones and SIM cards and paying the rent for the accommodation. He provided the people with information about when they would leave for Australia.

145. There is no evidence that the offender received any money for his services but he must have at least received food and accommodation whilst he was in Indonesia. That is consistent with the evidence that the people were receiving similar benefits from Karimi. Whilst there is an inference available to be drawn that he participated for a financial motive, I am not satisfied beyond reasonable doubt that that was the case. I am satisfied on the balance of probabilities from the other evidence that the offender participated to receive passage to Australia in order to be re-united with his family.

146. The offender played a people management role that was essential to the carrying out of the scheme. The offender was not the organiser of the criminal enterprises. The offences formed part of a course of conduct consisting of the serious of criminal offences.

147. I am satisfied on the balance of probabilities that the offender assisted Karimi in return for his own passage to Australia. There is an overwhelming consistency of the evidence in the offender’s case. I accept the evidence of his father that the offender was required to stay in Indonesia and to work for Karimi to pay for his passage. This evidence is supported by what the offender told the psychologist and by the independent evidence of Mr Rajabi who corroborates the family’s earlier aborted attempt to travel to Australia in the boat that sank shortly after leaving Indonesia.

148. I am satisfied on the balance of probabilities that the offender and his family left Iran as a result of persecution by the authorities, and I accept that the offender was motivated to commit the offences because he was desperate to be re-united with his family who he was close to. I am satisfied on the balance of probabilities that the offender was manipulated to some extent to assist Karimi on the promise of passage to Australia that was ultimately fulfilled when he paid more money, and that is consistent with the notion that the offender was not renumerated or a trusted employee of the organisation.

149. The offences were committed when the offender was vulnerable. He was involved in a high risk process with few resources in a foreign country and acted to achieve a reunion with his precious family. In all the circumstances his moral culpability is significantly reduced.

150. The maximum penalty of the offence is 20 years imprisonment and/or a fine of $420,000. Parliament has prescribed a mandatory minimum penalty for the offence of a head sentence of five years and a non-parole period of three years. The minimum sentence must be imposed taking into account all the relevant sentencing factors for the least serious category of offending Bahar v The Queen [2011] WASCA 249 at [58].

151. I have taken into account the other offences on the s 16BA schedule. They each carry a maximum penalty of ten years imprisonment. Those offences must necessarily increase the sentence imposed.

General Deterrence

152. General deterrence is a fundamental consideration in a people smuggling offence. A clear message must be sent that people involved will face a very substantial penalty. General Deterrence may be attributed less weight in cases where the offender suffers from a mental condition because such an offender is not an appropriate person to be made an example of. The authorities do not mandate an entire disregard of general or specific deterrence by the sentencing Judge. The extent of the reduction depends on the circumstances of the case. The factors that are relevant to the assessment include the nature and extent of the mental condition suffered, whether the offender acted with knowledge of what they were doing, and the gravity of their actions and whether the community require protection from the offender by reason of the mental condition suffered.

153. The extent of the offender’s mental condition is now significant. It is hard to judge his mental state at the time of the offences, except to say that I am satisfied that he acted out of desperation for his circumstances, particularly the desire to re-join his family. He knew what he was doing was wrong. The community does not require protection from the offender by reason of his mental condition. This is a case in which the weight to be afforded to general deterrence should be reduced. The extent of that reduction cannot be much because of the paramount importance of general deterrence for this type of offence.

Specific Deterrence

154. There is little need for specific deterrence. I am satisfied on the balance of probabilities that the offender acted out of desperation to be re-united with his family and that he was taken advantage of by the organisers of the operation. I am satisfied that the offender has good prospects of rehabilitation. He has always worked and has the support of a close and loving family. I am satisfied that he is unlikely to re-offend. He has been in custody for a lengthy time already, he has accepted responsibility for his actions, he understands the impact on Australian society and he has expressed genuine contrition and remorse.

Other matters

155. The offender is presently 28 years of age. He does not have any prior convictions in Australia. I am satisfied that the hardship that has been caused to the offender’s family is exceptional and should be taken into account to mitigate the penalty imposed. The offender initially intended to come to Australia with his family and they embarked on an unsuccessful attempt to do so together. The people smugglers required them to pay more for the second journey and ultimately did not allow the offender to travel with them. I am satisfied that the offender was to some extent exploited by the people smugglers for their own benefit. Consistent with this finding, when he could pay he was given passage. His family have had the concern for the offender’s welfare weighing on them from that time. His future is very uncertain whereas his actions in staying behind in Indonesia have permitted them to permanently reside in Australia and to make a new future. I am satisfied that the weight of guilt that they carry must be extraordinary.

156. The offender has expressed remorse and contrition to the psychologist and to the Court. I am satisfied that this is genuine. The offender has good prospects of rehabilitation. The offender has always been in regular employment and has a strong supportive family.

157. The offender pleaded guilty. For Commonwealth offences the Court must consider the offender’s willingness to facilitate the course of justice, and not the utilitarian value of the plea of guilty: Cameron v The Queen (2202) 209 CLR 339 at [14]. In assessing the willingness of the offender to facilitate the course of justice the strength of the Crown case against the offender is a relevant consideration: Danial v R [2008] NSWCCA 15 at [27]-[28]. That enquiry may reveal whether the plea was a recognition of the inevitable or truly motivated by the willingness to facilitate the course of justice: Lee v R [2012] NSWCCA 123 at [58].

158. The Crown case was not particularly strong. Many of the people who were assisted could not identify the offender. The offender’s plea saved the need for witnesses to be called of what was to be a lengthy trial and that can be taken into account: Cameron at [79]. The offender entered into plea negotiations that resulted in a number of the charges he was facing being withdrawn or consolidated in some way. In that sense his plea was entered at the first reasonable opportunity.

159. I am satisfied that the offender’s plea was an indication of his willingness to accept responsibility for his actions and was motivated by a willingness to facilitate the course of justice. The appropriate discount is 15%.

160. The offender suffers from two relatively minor physical ailments. He has a significant mental condition arising from the circumstances of his life. The offender requires psychological treatment including medication and counselling. He is not receiving adequate treatment in custody for his mental condition.

Penalty

161. I have had regard to s 17A(1) of the Act and I am satisfied having considered all other available sentences that no sentence other than a sentence of imprisonment is appropriate in all the circumstances of the case. The reason for that decision are

1. The offence is objectively serious,

2. there is a significant need for general deterrence,

3. There is a need for denunciation of the offending conduct; and

4. The subjective circumstances relating to the offender are necessarily subsidiary to the duty of the Court to ensure he is given a punishment of appropriate severity and there is minimum mandatory sentence applicable.

162. The offender is convicted.

163. The offender is sentenced to a term of imprisonment of eight years to date from 10 December 2013 and expire on the 9 December 2021.

164. I fix a non‑parole period of four years to expire on 9 December 2017.

Explanation of Sentence

165. I am required to explain to the offender the effect of the orders I have made.

166. Mohammad Reza Fayazi, the sentences I have imposed mean that you will be obliged to spend a minimum of four years in custody. This means that having regard to the time you have already spent in custody you will be eligible for release on parole on 9 December 2017.

167. It will be a matter for the Attorney General as to whether you will be released on that day. It may depend on your behaviour in prison, it will also be a matter for the Attorney General to determine whether any conditions should apply to you while you are conditional liberty on parole after that date. If you are released on that day, you will remain on parole for a further period of four years. If you were to breach your parole you may be required to return to prison and serve the balance term of your sentence.

**********

Decision last updated: 15 December 2017