The Queen v Allami
[2018] VCC 930
•5 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-16-00740
| The Queen | Plaintiff |
| v | |
| ABBAS HUSSEIN ALI ALLAMI | Defendant |
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JUDGE: | Her Honour Judge Morrish | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10, 11, 12, 15, 16, 17, 18, 19, 22, 23, 24, 26, 29, 30 and 31 May 2017, 1 and 2 June 2017, 3 November 2017, 13 December 2017 and 7 May 2018. | |
DATE OF SENTENCE: | 5 June 2018 | |
CASE MAY BE CITED AS: | The Queen v Allami | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 930 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr K. Armstrong | |
| For the Defendant | Mr G. Davis until 24 May 2017, thereafter Mr T. Danos |
HER HONOUR:
1 ABBAS HUSSEIN ALI ALLAMI, you are to be sentenced in respect of one charge of aggravated people smuggling contrary to section 233C of the Migration Act 1958 (Cth). In particular the charge alleges that in the Republic of Indonesia between 1 September 2013 and 1 December 2013 you facilitated the proposed entry into Australia of a group of at least five persons, namely a group of six persons who were non-citizens and who had, or have no lawful right to come to Australia, and that you did so reckless as to whether the six persons had, or have, a lawful right to come to Australia.
2 The maximum applicable penalty is 20 years’ imprisonment, 2,000 penalty units, or both the fine and imprisonment.
3 There is a mandatory requirement that I impose a head term of imprisonment of not less than 5 years and a non-parole period of at least 3 years’ imprisonment.[1]
[1]S236B(3)(c) and s236B(4)(b)Migration Act 1958
4 You pleaded not guilty to the charge when arraigned before a jury of 12 persons.
5 After a number of preliminary issues, your trial commenced before the jury on 17 May 2017.
6 You did not give evidence at your trial.
7 Following a 12 day trial, you were found guilty of the charge on 2 June 2017.
Circumstances of offending
8 KADHIM AL SHAREEDA, together with his wife and four daughters were citizens of Iraq. No member of the Al Shareeda family had ever been citizens of Australia. Nor did they have any lawful right to come to Australia. Mr Al Shareeda wanted to bring his family from Iraq to Australia. He sold his house in Iraq to raise the funds for the planned travel. He struck a bargain with a syndicate of people smugglers to take his family to Australia. Mr Al Shareeda and his family first travelled to Turkey by bus.
9 In Turkey, Mr Al Shareeda determined to travel on to Australia. He was given a contact who told him it would be arranged that he and his family would first travel to Malaysia and from Malaysia onto Indonesia and then from Indonesia to Australia.
10 The Al Shareeda family then travelled on to Malaysia where Mr Al Shareeda was to contact one Abu Kamal and one Abu Tareq to make further arrangements for the next part of the journey.
11 The Al Shareeda family arrived in Malaysia on approximately 7 August 2013. Mr Al Shareeda made contact with both Abu Kamal and Abu Tareq. Mr Al Shareeda agreed with Abu Kamal and Abu Tareq that he would pay $3,000 per person to get his family to Indonesia with an official visa, which fee included accommodation, although the final total fee of $15,000 US was agreed for the entire family of six persons.
12 Mr Al Shareeda was told that he and his family would be travelling by air from Malaysia to Indonesia and after that by boat to Australia. At trial, Mr Al Shareeda testified that the boat would be large –
“a cruise ship with all equipped with a GPS, with a satellite, with everything. And they told me they will be waiting for you, the Australians will be waiting for you in the middle of the sea, they will pick you up and within 15 days you will get a passport and a permanent residency.”[2]
[2]Trial transcript (TT) 328
13 Upon departing Malaysia, arrangements were made for visas to travel to Indonesia. At customs in Malaysia Mr Al Shareeda was given further contact details for people in Indonesia. As it turns out, the visas were, in all probability, fakes.
14 The Al Shareeda family then travelled on to Indonesia. They stayed in hotel accommodation where other travellers in similar circumstances to the Al Shareeda family were also staying. The number of travellers ranged from 30 to 70 as they were moved around by the smugglers.
15 Mr Al Shareeda’s evidence was that he regarded Abu Tareq as “the boss that is leading the whole operation” although he also dealt with Abu Kamal.[3] Abu Kamal’s role was to arrange the trips for the people from Malaysia to Indonesia. Others involved in the people smuggling syndicate included Abu Younis, also known as Sharam, Abu Omar, Wissam, Ahmed, Hamoudi, Sadam, Abu Abdullah and Hussein Kaisar. Mr Al Shareeda testified that you are the person known to him as Kaisar.
[3]TT 334
16 According to Mr Al Shareeda, Abu Younis’ role was to bring cars to transport the travellers to the boats, check the safety of the boats, to dive under the boats and make sure they were seaworthy.
17 Abu Omar’s role was to collect money from the travellers, pay for the accommodation and take any sick people to hospital.
18 Wissam’s role was to pay accommodation costs and to allocate hotel rooms to the travellers.
19 Hamoudi’s role was similar to the role played by Wissam, namely to be responsible for accommodation and to collect people from the airport.
20 Sadam’s role also had to do with accommodation.
21 Abu Abdullah’s role, as best I understand it, was to be a point of contact by telephone.
22 Your role was to arrange transport from the hotel accommodation to the boat.
23 Mr Al Shareeda testified that he met you on 4 occasions.
The first meeting[4]
[4]TT 337 - 342
24 The first such occasion was approximately one or two months after arriving in Indonesia. Abu Younis and Abu Tareq had advised Mr Al Shareeda to take a taxi and go to a particular address with his family. They arrived at a mall where there were THREE other families also waiting to travel. Mr Al Shareeda met you there at a coffee shop:
“…we were sitting in a coffee shop on a table with chairs each family and then somebody came, a person [that is you, Mr Allami] came wearing black sunglasses. He came to the first family. He came and asked the first family “Are you from Abu Tareq” – I recognised from the customs of one of the ladies that is wearing the traditional Islamic dress with a headscarf and I recognised you that you were from Abu Tareq side”’. He said “Stay seated here for a while and then after that we will go. When I give you the signal after, you follow me. Don’t walk together. Walk separately, each family separately from the other family”. He went and we followed him. We walked behind him. We followed him. We walked behind him for around 500 metres and then we got to a bus stop and we saw Sharam was standing there. He said “Wait, wait, wait”. Then after that I realised afterwards that they have put the [other single travellers] in two buses and they have already left.”[5]
[5]TT 338 - 339
25 According to Mr Al Shareeda the families were left behind as they were the last to arrive at the buses. Mr Al Shareeda called Abu Tareq and complained about being left behind with his family. During this conversation, Abu Tareq asked Mr Al Shareeda to pass the phone to you. After this conversation you became angry with Mr Al Shareeda, demanding to know why he called Abu Tareq. Mr Al Shareeda said, “I don’t know you. I have never dealt with you”. You responded, “Ask Abu Tareq to take you”.[6]
[6]TT 339
26 After that, apparently arrangements were made for taxis to take Mr Al Shareeda and his family and other families to follow the buses. You travelled in the same taxi as Mr Al Shareeda and his family. You sat in the front seat beside the driver. Mr Al Shareeda and his family were all seated in the back.
27 The taxi trip took between three quarters of an hour to one and one and a half hours. The taxis then caught up with the buses, where the families boarded the buses. At that point, you and Sharam left and the buses drove off. One of the buses broke down, so both buses stopped for a while until it could be repaired. The buses took off again but apparently there was another breakdown. Eventually police intercepted the vehicles and the passengers, including Mr Al Shareeda and his family, were arrested. The Al Shareeda family were taken to some sort of immigration centre where Mr Al Shareeda was able to call Abu Tareq. Abu Tareq assured Mr Al Shareeda that he would get them out of custody. Apparently, the families pooled money and bribed their way out of custody.
28 Buses were arranged and the Al Shareeda family was taken to Bogor. Once there, Mr Al Shareeda contacted Abu Tareq once more. He promised that Hassan and Hamoudi would arrange further accommodation. The Al Shareeda family was then housed in a villa.
The second meeting[7]
[7]TT 342 - 344
29 Approximately 15 to 20 days later, the Al Shareeda family again met you in a mall. There were other families there as well. The families were divided into cars. Apparently there were some 21 to 27 passengers.
30 You told Mr Al Shareeda and the others in the group that the cars had been delayed but apparently when they arrived you told the group that the trip was to be postponed. Mr Al Shareeda called Abu Tareq to confirm that the trip had been postponed. The families were taken back to the hotel.
The third meeting[8]
[8]TT 344 - 346
31 The third meeting was divided into 2 parts. Mr Al Shareeda and representatives from the other families met you in a coffee shop in Bogor. All of the families were to go to a specific address in a villa and to stay there. There were roughly 50 to 70 passengers at the villa. Later that day you came to the villa and instructed the passengers to “stay quiet, don’t make any noise, don’t open the curtains”.[9] You advised the passengers that they would be travelling the next day.
The fourth meeting[10]
[9]TT 346
[10]TT 348 - 353
32 Again, the fourth meeting was divided into 2 parts. The next day you came to the villa with Abu Omar. You addressed the whole group of travellers telling them to “calm down, keep quiet” and that the journey would start that day. You told the group that when it gets dark, cars will be coming to pick them up to take them on the journey. You advised the group that their mobile phones would be collected as police would be able to trace the signal and intercept the vehicles. Mr Al Shareeda was unhappy about handing over his phone, so he contacted Abu Tareq. It was agreed that the passengers would be able to keep one phone although it was to be switched off.
33 Later that day you returned with Abu Omar. It was dark. Mr Al Shareeda saw you talking to a person in a military uniform, following which two military trucks arrived, but they left later. Mr Al Shareeda understood that the passengers would be transported in those trucks. You explained that those organising the trucks were too greedy and that is why they left.
34 Two or three hours later big buses arrived. You told Mr Al Shareeda and his family to board the buses. After boarding the buses the family was given life jackets. You did not board any of the buses.
35 The buses drove in convoy following a small white car. The trip took approximately three hours. When the buses arrived at a particular point, there were two other buses waiting. The passengers boarded the second set of buses. There was a further three hours of travelling until one of the buses became bogged in mud.
36 Mr Al Shareeda contacted Abu Tareq and then he contacted you. You said to wait at the scene. Mr Al Shareeda contacted Abu Tareq and voiced his concern. The families were afraid of waiting in the mountains where there were snakes. One of the passengers lit a fire to make coffee and apparently the smoke alerted police to the group’s presence. All the passengers were then arrested by the police. There were approximately 50 to 75 passengers in all.
37 The passengers were taken to a centre near the mountains where they were detained for approximately one hour. From there they were taken to an immigration centre where they met the same officials they had previously bribed. Once again money was collected to bribe the officials and Mr Al Shareeda and his family were released.
38 Mr Al Shareeda never saw you again. He then made arrangements with another people smuggler who was able to transport the Al Shareeda family to Australia. You played no part in the Al Shareeda family’s successful voyage to Australia.
39 On 2 December 2014 Mr Al Shareeda identified you as the man he knew as Kaisar.
The principal trial issue
40 At trial the sole issue was whether you are the man known to Mr Al Shareeda as Kaisar.
41 Only two witnesses were called to give evidence: Mr Al Shareeda and the informant, Detective Senior Constable Roscoe. You did not give evidence upon your trial.
42 A series of recorded telephone conversations in which you participated after Mr Al Shareeda arrived in Australia were played to the jury.
43 Various names were mentioned in those conversations, and you spoke with a number of persons. The prosecution case was that those persons mentioned, or with whom you spoke, were members of the Abu Tareq people smuggling syndicate. The conversations did not directly concern this specific voyage. Significantly, you were recorded as referring to yourself as Kaisar during those conversations.
44 A number of these recordings were played to you when you were interviewed by the police on 18 November 2014. In that record of interview, you denied any involvement in the crime.
45 Apart from the identification evidence given by Mr Al Shareeda, there was other circumstantial evidence inculpating you in this crime.
The course of the trial
46 The trial commenced on 10 May 2017 when you were arraigned before me and pleaded not guilty to the charge. Pre-trial argument commenced about the admissibility of the intercepted telephone conversations as tendency and coincidence evidence. The arguments continued on 11 May.
47 On Friday 12 May 2017, I ruled that the evidence was admissible. The further hearing of the matter was adjourned to Monday 15 May.
48 On Monday 15 May, you failed to attend court. Your bail was revoked and a warrant was issued for your arrest. I made a suppression order. You had admitted yourself into psychiatric care. I heard evidence from the psychiatrist in charge, who considered that you were not psychotic and that you were fit to stand trial. You were arrested and remanded in custody where you have remained since then.
49 On 16 May, there was further pre-trial argument.
50 On 17 May, a jury of 12 was empanelled for your trial. I gave a number of preliminary directions, the prosecutor opened the case and your counsel made a brief opening reply.
51 On 18 May, Mr Al Shareeda commenced his evidence which continued on 19 May. After that, the transcripts of the recorded phone calls were read into evidence. That process continued on 22 and 23 May.
52 On 24 May, the prosecutor commenced his closing address. The prosecutor’s final address had not been completed when you sacked your legal team. I made a suppression order covering the discussion that ensued.
53 There was further discussion on 26 and 29 May to clarify whether you would engage a new legal team to represent you and whether the trial should be aborted.
54 A new legal team was appointed to represent you.
55 On 30 May, I refused any further adjournment applications and the prosecutor resumed his closing address, which continued the next day. On 31 May, your new counsel made a closing address on your behalf.
56 I gave my final directions to the jury on 1 and 2 June 2017. The jury returned its verdict of guilty on 2 June 2017.
57 The plea hearing was fixed for 3 November. That day the plea hearing was adjourned to 13 December 2017, then to 8 March 2018 and then to 7 May 2018. The plea hearing was completed on 7 May 2018.
Gravity of offending
58 The maximum applicable penalty of 20 years’ imprisonment together with a mandatory minimum head sentence of five years and a minimum non-parole period of three years reflects the gravity with which Parliament views this offence.
59 As the learned prosecutor, Mr Armstrong, has correctly stated, the object of the Migration Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. The authorities referred to by Mr Armstrong make it clear that
“[7]…the unlawful entry of non-citizens into Australia is a serious violation of this country’s sovereignty and national security. Australia is particularly at risk from such offences due to its large coastline. The detection, law enforcement, detention, and prosecution of such offences imposes an enormous administrative burden and financial cost that is shared by the Commonwealth and the various States and Territories.
[8] The passengers who are brought to Australia in illegal people smuggling operations are also exploited, paying large sums of money and often risking safety and health on unseaworthy vessels, in the promise of a better life in Australia.”[11]
[11]Exhibit B on the plea hearing, Crown submissions on Sentence, paragraphs 7 and 8, noting that the following cases are cited: Bahar v The Queen (2011) 255 FLR 80; Dpp (Cth) v Haidari [2013] VSCA 149; R v Feng Lin (2001) 119 A Crim R 194; Karim [2013] NSWCCA 23
60 In Ilam v Dando,[12] McKechnie J observed:
“The introduction of illegal immigrants into Australia threatens this country’s national security in many ways. It is a growing problem which requires Australia to take the necessary steps to protect itself. Notwithstanding their comparatively low level in the criminal hierarchy, nevertheless the appellants performed a pivotal role in the scheme and were vital to its success. It is necessary for courts to deal strongly with the appellants and those like them for the purpose of deterrence to others.”[13]
[12](1999) 109 A Crim R 47.
[13]Ibid 49. Cited in Jopar v R [2013] VSCA 83 at [5]. The following cases are referred to in footnote 8 – “R v Nursia (Unreported, Supreme Court of the Northern Territory, Bailey J, 12 January 2000) where, dealing with offenders convicted of offences against s 233(1)(a), Bailey J said: ‘general deterrence must play an important role in determining appropriate sentences in the present circumstances. A clear message must be sent to those who are minded to engage in bringing non-citizens to this country that they can expect to face a very substantial penalty’.”
61 In cases such as these, general deterrence is the predominant, if not paramount sentencing consideration.[14] It must be observed that the mandatory sentencing requirements imposed by the Migration Act cannot be avoided by the operation of sections 16A and 17A of the Crimes Act 1914 (Cth) (the Crimes Act), even where a person is suffering from a mental health condition as might engage the principles in R v Verdins.[15] That does not mean however that personal factors and other sentencing considerations can be ignored. As was said in Bahar v The Queen:[16]
“Where there is a minimum mandatory sentence of imprisonment the question for the sentencing judge is where, having regard to all relevant sentencing factors, the offending falls in the range between the least serious category of offending for which the minimum is appropriate and the worst category of offending for which the maximum is appropriate.”[17]
[14]Jopar v The Queen [2013] VSCA 83; Bifel v The Queen [2013] VSCA 82; R v Feng Lin (2001) 119 A Crim R 194
[15](2007) 16 VR 269
[16][2011] WASCA 249
[17]Ibid. [58] per McLure P
62 When considering the objective gravity of offending in cases such as these, matters to be taken into account include the role played by the offender, where, in the overall hierarchy, the offender stood, the motivation for committing the crime and whether the crime was committed for financial reward.
63 I am satisfied beyond reasonable doubt that you were not at the head of this people smuggling syndicate. Your role was limited, yet it was important. As mentioned already, you were a person who had direct contact with Mr Al Shareeda and his family and who made arrangements for accommodation and transport for them and for others. You met Mr Al Shareeda and his family on no fewer than four occasions in Indonesia.
64 Although it is not possible to say precisely how much you stood to gain from this crime, I am satisfied beyond reasonable doubt that you were motivated for financial reasons. Given your flat out denial of criminality, no question of duress or any misguided sense of helping others arises to explain your conduct.
65 I noted earlier that a number of conversations were intercepted and recorded by police. Those recordings were admitted not only to prove that you are the man known as Kaisar, and that you associated with members of the people smuggling syndicate named by Mr Al Shareeda, but also as tendency and coincidence evidence. The conversations tend to show that you were concerned or interested in other people smuggling operations and that it is no coincidence that you communicated with or about other members of the same syndicate referred to by Mr Al Shareeda about the same or similar subject matter as the offending in question. That said, you are to be sentenced for the crime of which you have been found guilty and for no other form of misconduct.
Plea in mitigation
66 Your counsel, Mr Danos, made a plea in mitigation of penalty on your behalf in which he identified a number of factors personal to you that he submitted justified a more lenient approach when sentencing you. I now turn to those factors.
Personal history
67 You were born in Iraq on 1 January 1978 and are now aged 40 years. At the time of offending you were aged 35. You were born into a Shiite Muslim family. At the time Saddam Hussein was in power. There was much conflict between Sunni and Shiite Muslims in Iraq at the time. When you were aged two, you and your family were deported to Iran. There was ongoing conflict between Iran and Iraq. You lived with your family in a number of refugee camps for approximately five years. Your family then moved to the city of Qom. You remained in Qom until you were aged about 22 years. Your family survived financially by selling fruit from stalls at the side of the road.
68 In all the circumstances of your childhood, you had limited opportunity for education. You were educated to grade 4 or 5[18] level whilst at the refugee camps in Iran. You have had no further education, as I understand it.
[18]Dr Cunningham’s report, exhibit 1 states grade 5, Associate Professor Carroll’s report, exhibit 2, states grade 4.
69 In 1999, your older brother, Ali, came to Australia by boat from Indonesia. The Australian Navy intercepted the boat and he was brought to Port Hedland. In approximately 2001, your brother moved to Mildura. He then urged members of the family to come to Australia. Accepting your brother’s advice, you left Qom with your sister-in-law and her three children. Your group travelled to Malaysia where you spent about a month and then from Malaysia you went to Indonesia. You boarded a boat in Indonesia and set upon your journey to Australia. The boat was intercepted and you were placed in detention in Woomera. Ultimately, you were released and you were granted refugee status. You later became an Australian citizen.
70 Upon your release you discovered that your mother, who had been left behind in Qom, had passed away at age 48. Three years later your father passed away. The death of your parents affected you profoundly.
71 You moved to Adelaide and worked there for some two years but moved back to Mildura to find work picking fruit with your brother. You have not worked for several years now because of recurring mental health problems. In 2007, you were placed on a disability support pension.
72 You have remained close with your brother and his family. There has been much mutual support between the two of you over the years. Your nephews have supported you throughout your trial and subsequent plea hearing.
73 Although you have been in trouble with the law, you have no relevant prior convictions.
The state of your mental health.
74 The prosecution concedes that because of your traumatic childhood and upbringing and subsequent problems in your life, you have long-standing mental health issues. These problems are well documented in various medical records.
75 Two reports were tendered on your behalf –
·Report from Dr Aaron Cunningham, forensic psychologist, dated 31 October 2017, Exhibit 1; and
·Report from Associate Professor Andrew Carroll, consultant forensic psychiatrist, dated 23 March 2018, Exhibit 2.
76 Before turning to the details contained in those reports, I should note that it was conceded on your behalf that your mental health problems played no role in your offending. Critically, you still maintain your innocence and, accordingly, no evidence has been gathered to make the connection between your mental health condition and your offending. As a consequence of your stance, there is no evidence of remorse or contrition, nor have you offered any explanation for your offending.
77 The point about which there is agreement between you and the prosecution is that, because of your mental health condition, jail will, to a moderate degree, be more onerous for you than for an offender not so encumbered.
78 There is also evidence, which I accept, that full remission of your condition will unlikely be achieved in a prison setting, and it is possible that it may deteriorate whilst in custody, although your condition may well fluctuate.
79 I now turn to the details of your condition, which are set out in the comprehensive report of Associate Professor Carroll. I note that Associate Professor Carroll undertook an extensive and detailed examination of your clinical records dating back to 2005. Associate Professor Carroll states:
“144) Mr Abbas Allami is a 39-year old Iraqi Kurd whose developmental history is notable for his spending most of his childhood in a refugee camp in Iran. He gives an account of witnessing deaths as a result of bombardment there during the Iran/Iraq war and also revealed the traumatic episode of his being the victim of attempted rape by a man when he was aged 10.
145) He has very limited educational history, but is literate in his first language.
146) In his early 20s, he arrived in Australia as a refugee in the company of his brother, and subsequently settling in Adelaide before moving to Mildura.
147) He appears to have no history of sustained intimate relationships.
148) He indicates good occupational functioning, working in a factory, up until his first psychiatric admission in 2005. This admission appears to have occurred many months after the onset of a depressive illness, which ultimately developed psychotic features in the form of auditory hallucinations.
149) It is likely that his early experiences of displacement and trauma predisposed him to subsequent development of a depressive illness, which ultimately was triggered by the unexpected death of his father.
150) Rather unusually, he was offered the option of ECT treatment in 2005 prior to any substantive trial of antidepressant medication and appears to have shown a good response to this modality of treatment.
151) Based on his health records, there is no evidence of any major relapse into a seriously depressed state following his discharge in early 2006 up until the time of his criminal trial in 2017. Over the ensuing years, he only required outpatient care, primarily provided by his GP, with some occasional input from a private psychiatrist. He remained on the antidepressant sertraline in varying dosages, although there were apparently some brief periods of his going without medication.
152) He had a two-day admission prior to his incarceration in May 2017: the exact basis of this is unclear; it is certainly possible that the stress of his trial precipitated some reappearance of depressive and psychotic symptomatology. Subsequent notes from prison-based mental health services, however, do not indicate any evidence of a sustained relapse at that time.
153) Following his incarceration, it appears that he unfortunately went for one to two months without antidepressant medication for unclear reasons, and his mental state deteriorated somewhat over that time.
154) He has continued to be followed up by prison-based mental health services at both MRC and Marngoneet. There has been no evidence of any behavioural disturbance due to mental illness and there have been no concerns about self-care or nutritional intake. At times, there have been brief concerns about suicide risk, but he has not acted on any suicidal urges at any stage.
155) He has periodically complained of hearing a woman’s voice in his head. At interview with me, he gave a clear account of this symptom and speculated that it may be related to a woman with whom he had a relationship in the past, who cast a “curse” on him, but this idea was not of delusional intensity. He clearly indicated that since a change of antidepressant, the problems with the voice had subsided over recent weeks.
156) He continues to express distress, difficulties with sleep and absence of pleasure in his life. He continues to maintain a belief that another course of treatment with ECT would be helpful for him.
157) The most appropriate diagnosis for Mr Allami is Recurrent Major Depressive Disorder in partial remission (DSM-5 296.35). His treating psychiatrist concurs with this opinion. At times, he has shown psychotic features in the form of auditory hallucinations, with some possible associated delusional beliefs. At the current time, however, I do not consider him to be actively psychotic.
158) Given his denial of the offending of which he has been found guilty, it is not possible to meaningfully opine on any possible relationship between his mental disorder and the offending behaviours.
159) It appears that after his initial psychotic episode (which was depressive in nature) in 2005, he has never quite returned to premorbid functioning: he has not returned to full-time employment and has been reliant on a disability support pension. His overall level of social and interpersonal functioning appears to have been limited from that time onwards. Nonetheless, he has proven himself to be capable of independent living, had not required any further admissions until 2017, and has never engaged in any acts of deliberate self-harm or attempted suicide.
160) Clearly, Mr Allami struggled in the early stages of his trial and subsequent incarceration. Matters were not assisted by his going without his antidepressant for over a month. He has, however, appropriately availed himself of prison-based mental health services. His medication regime in prison has been appropriately monitored and adjusted by visiting consultant psychiatrists. There have been brief periods of concern about suicide risk, particularly in the early stages of incarceration, but this has not been a concern in recent months.
161) I note that he has been moved to Marngoneet Prison, which suggests that he has not posed any significant long-term management problems, whether due to mental illness or otherwise, within the prison context.
162) Unsurprisingly, since incarceration, it appears that overall his mood and functioning have deteriorated somewhat compared to how things were in the community. Uncertainty about his sentence is likely to be further impacting on this at the current time. Fortunately, he has shown a promising response to recent medication changes, although remains somewhat unwell.
163) Looking ahead to the future, it is possible that his depressive illness will again deteriorate further after sentencing, although his ongoing psychiatric treatment may effectively mitigate this risk.
164) In my opinion, there is no good evidence that ECT treatment would enhance his recovery at this time. He is currently able to avail himself of appropriate psychiatric care within the prison setting.
165) In the longer term, it is more likely than not that he will not achieve full remission from his depressed state whilst he remains incarcerated. In particular, his ongoing depressive symptoms of reduced pleasure, anxious rumination and insomnia are likely to persist. This is, in part, due to the inherent stress of imprisonment (especially for a person who speaks little English) and in part due to separation from his major support figures (his nephews and brother).
166) Thus, the fact of his enduring mental illness (Major Depressive Disorder [with psychotic features at times]), means that, to at least a moderate degree, imprisonment will have a more burdensome impact upon Mr Allami than would be the case for a person who does not suffer from such a condition.”
Prospects for rehabilitation
80 You have had long-term mental health problems, but with treatment your symptoms have been mostly well-managed. Your condition played no role in your offending, and although there is no specific evidence before me about your prospects for rehabilitation I infer from all of the evidence that your prospects for rehabilitation are relatively good.
Submissions on sentence
81 Counsel drew attention to a number of cases, too many to list now, instead, I shall attach a table of cases referred to. It is desirable to maintain consistent sentencing standards throughout the Commonwealth of Australia. However, as was conceded by both parties, no two cases are ever identical, so comparisons between other decided cases is of guidance but is not determinative of the sentence to be imposed in a particular case.
82 This is not a case where a non-custodial disposition is an option because mandatory sentencing is a statutory imperative, as I mentioned earlier. I have also earlier set out the principles to be applied in cases such as this.
83 In determining the sentence to be passed I must impose a sentence that is of a severity appropriate in all the circumstances of the offence having regard to the factors already mentioned and, where relevant, to the factors mentioned in section 16A of the Crimes Act.
84 In all the circumstances I have no option but to impose a term of imprisonment.
85 Please stand, Mr Allami:
86 On Charge 1, the aggravated offence of people smuggling, you are convicted and sentenced to six years’ imprisonment. That sentence commences today.
87 In determining the minimum non-parole period. I note that the purposes of parole are:
(a) the protection of the community;
(b) the rehabilitation of the offender;
(c) the reintegration of the offender into the community.”[19]
[19]Crimes Act s19AKA
88 Taking these factors into account along with your mental health condition I direct that you serve a minimum non-parole period of three years and three months’ imprisonment.
89 I am required by law to explain the effect of the sentence I have just passed. The total effective sentence is six years’ imprisonment. I have directed that you serve a minimum period of three years and three months before becoming eligible for parole. The time you have already served in custody will be deducted from the sentence. I shall make a declaration about that in a moment.
90 Accordingly, you will be required to serve a minimum period of imprisonment of not less than three years and three months, less time served, and thereafter if you are released on parole, the balance of your sentence will be served in the community subject to the conditions of your parole. Any such parole order may be amended or revoked. If you fail without reasonable excuse to fulfil the conditions of your parole, your parole may be revoked and you may be ordered to serve the balance of your sentence in prison.
91 As I stated earlier, the purposes of fixing that non-parole period in your case are principally, to maximise your prospects for rehabilitation and to allow for your ultimate reintegration into the community. Protection of the community from you, although relevant, is not a dominant feature in your case.
92 Having come to the conclusion that I have no alternative but to impose a term of imprisonment, I direct that my reasons for so finding be entered in the records of the court under section 17A(2)(b) of the Crimes Act.
93 I will now make the declaration. Pre-sentence detention as 386 days in custody. So you have now served 386 days in custody.
94 By virtue of 16E of the Crimes Act the time you have already spent in custody, namely 386 days, will be taken into account as time already served in respect of the sentence imposed this day. I direct that the fact of this declaration and its contents be entered into the court records.
95 You may remove the prisoner.
Annexure
Comparative Sentencing Table.
| Offender | Date and Jurisdiction | Charge/s | Facts as to Offender and Offending | First Instance Sentence | On Appeal |
| HAIDARI, Ali | Appeal Judgement: 19 June 2013 Victorian Court of Appeal [2013] VSCA 149 | Charge 1: s233(1)(a) Migration Act Charge 2: s232A Migration Act Charge 3: s307.2 Criminal Code Charge 4: s233C Migration Act. | Mr Haidari was an Australian citizen, of Iraqi Kurdish background, involved in organising the coming to Australia of a number of non-citizens. Charge 1: The Offender travelled from Melbourne to Jakarta in October 2009 to organise the travel of an Iranian citizen by boat to Australia. The passenger was one of 49 non-citizens on board a vessel which was intercepted near Christmas Island on 25 November 2009. Charge 2: The Offender organised for a group of six non-citizens to travel to Australia in circumstances where the passengers contacted the Offender from Iran seeking his assistance. Six passengers travelled on board SIEV 124 which was intercepted near Christmas Island on 31 March 2012, carrying 64 unlawful non-citizens. The Offender received a substantial amount for his role in facilitating this particular people smuggling operation. Charge 3: The Offender made arrangements for the importation of 505.4 grams of methamphetamine. He was responsible for the receipt of the drugs in Australia on 8 July 2011 and for the ultimate distribution. Charge 4: The Offender agreed to help an undercover police officer who was posing as a person who wanted to bring six people from Indonesia to Australia. The Offender was paid $15,000 as part payment for the $6,500 per person he required. The Offender was arrested when he attended a meeting with the undercover officer. He had taken possession of a further $15,000 immediately before his arrest. The Offender was 38 years old (date of appeal) born in Iraq, arrived in Australia in 2000 and granted refugee status, he became an Australian citizen in 2007. The Offender was an organiser interested in personal financial gain to exploit the vulnerability of others. Offender claimed to have empathy for plight of passengers. | Charge 1: 4 years imprisonment Total Effective Sentence: 11 years, 6 months, non parole period 8 years. 6AAA: 15 years, non parole period 11 years. | Crown appeal dismissed. |
| Pathamendra PULENDREN | Date of Sentence: 20 September 2010 NSW District Court [2010] NSWDC 335 | Charge 1: S232A Migration Act. | Offender organised for 20 Sri Lankan Tamils to come to Australia on SIEV 46. 194 passengers were on board SIEV 46 in total. The boat was intercepted by Australian authorities on 26 June 2009. Members of the Sri Lankan community in Australia made contact with the offender in Sydney seeking his assistance to arrange for people to come from Sri Lanka to Australia without lawful visas. He acted as the Sydney agent for a broader people smuggling enterprise operating in Sri Lanka. He expected to receive a profit of $2,000.00 per passenger. Offender subsequently contacted Police himself to tell the police that he was involved in organising 20 people on a boat destined to arrive in Australia. Offender contacted police himself as he was fearful for the safety of the people on the boat and knew that he would arrested and charged. Offender 36 year old Sri Lankan Tamil. Arrived in Australia in 2007 at Christmas Island. Offender was granted refugee status. Offender organised for the arrival of twenty non citizens in a similar way to how he arrived in 2007. Offender pleaded guilty at earliest opportunity. | Charge 1: 5 ½ years, non parole period 3 years. | N/A |
| Heydarkhani, Ali Kohorram | Date of Appeal: 12 March 2014 W.A Court of Appeal [2014] WASCA 52 | Charge 1: s233C Migration Act Charge 2: s233C Migration Act Charge 5: s233B(1)(c) Migration Act Charge 9: 233B(1)(c) Migration Act | Offender organised for passengers to board 3 boats from Indonesia to Australia (charges 1 and 2). The Offender was paid between $5,000.00 for an individual or $30,000 for a group. Charge 5 related to the Offender organising SIEV 221 carrying unlawful citizens to travel from Indonesia to Christmas Island. The boat came into distress and hit rocks at Christmas Island. Only 42 of 89 passengers survived. Notwithstanding the Offender’s knowledge of the loss of life on SIEV 221, the Offender organised another boat carrying unlawful citizens to arrive in Australia from Indonesia (charge 9.) The Offender played an essential role in the people smuggling business which was substantial, generating enormous income. He misrepresented to passengers the suitability of the boats on which they would travel. Arranged for false passports where necessary to enable passengers to travel to Jakarta. He recruited crew members and arranged for them to dispose of their mobile phones so he and those associated with him could not be traced. Sentencing Judge described Offender’s conduct as worst category of offenders, did not find the Offender to be genuinely remorseful and had no concern for the safety of passengers. Offender pleaded guilty on first day of trial. Offender born in Iran, aged 41 at time of sentencing. Offender arrived in Australia on a ship, claimed refugee status and was granted citizenship. | Charge 1: 7 years Total Effective sentence: 14 years, non parole period 9 ½ years. | Appeal by offender dismissed. |
| DAOED, Khaleed | Date of Appeal: 9 December 2005 Qld Court of Appeal [2005] QCA 458 | Charge 1: s232A Migration Act. | The Offender was convicted after trial of aiding another Abu Quassey to organise a group of people on the vessel named SIEV X which contained more than 300 people. A majority of the people on board drowned and 45 were rescued. Mr Daoed was sentenced on the basis of his organisation of the journey and not for causing the deaths of those on board SIEV X. He was second in charge to Abu Quassey. The Offender was an organiser who attended promotional meeting with passengers, negotiated the price with passengers, provided information to passengers concerning the vessel, assisted in the transfer of passengers between places of accommodation pending a bus trip to the point of departure, collected mobile phones of passengers and assisted to ferry passengers from the beach to SIEV X. Sentencing Judge found it must have been obvious to the Offender that it would be a highly dangerous voyage. Offender born in Kuwait, 37 years of age at date of sentence. Accepted Offender was remorseful for the loss of life and that the Offender had been a model prisoner and had good prospects of rehabilitation. | Charge 1: 9 years imprisonment, non parole period 4 ½ years. | Appeal by Offender dismissed. |
| AHMADI, Hadi | Date of Sentence: 24 September 2010 WA District Court (2010) 12. | Charge 1: s232A Migration Act Charge 2: s232A Migration Act | The Offender was convicted following trial of organising two vessels carrying non-citizens which arrived at Christmas Island in March and August 2001. The Offender was responsible for meeting passengers at the airport, putting passengers on buses to get to the shore where the boats departed and being present with a more senior smuggler named Omeid when visiting passengers at hotels. Received money on behalf of Omeid. The Offender was sentenced on the basis of being a ‘go between.’ Offender born in Iraq, aged 35 at time of sentence. Fled to Indonesia and arrived in Jakarta. Met Omeid in Indonesia, and tried to travel on one of Omeids boats to Australia unsuccessfully. Formed a relationship with an Indonesian woman. | Charge 1: 5 years. Total Effective Sentence: 7 ½ years imprisonment, Non parole period of 4 years. | Appeal against conviction only dismissed. |
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