Curtis v Sidik & Anor [1999] NTSC 135; 9 NTLR 115; 119 A Crim R 1

Police Officer, the complainant in the Court below.

The respondents both pleaded guilty to an offence against s233(1)(a) of the

Migration Act 1958 (Cth) in that they took part in bringing into Australia a

non-citizen under circumstances from which it might reasonably be inferred

that the new citizen intended to enter Australia in contravention of the Act.

Mr Cavanagh, SM, convicted and sentenced the respondent Sidik, who was

aged fifteen at the time of the offence, to six months' detention, suspended

forthwith on condition that he not enter Australian territori al waters for any

reason for five years. He also ordered that the sum of 68,000 Indonesian

rupiah found upon Sidik's person be forfeited to the Commonwealth.

The respondent Najar, was dealt with by a different Magistrate, Mr Trigg

SM. Najar was fourteen years of age at the time of the offence. Mr Trigg

SM convicted Najar, and sentenced him to the same penalty as had been

imposed upon Sidik. Mr Trigg SM also ordered that 50,000 Indonesian

rupiah found on Najar be forfeited to the Commonwealth.

The appellant has appealed both these sentences on the ground that the

sentences were manifestly inadequate and failed to give sufficient weight to

general deterrence, the increasing prevalence of the offence and other

matters. The respondent in each case has appea led the sentences as being

manifestly excessive and other specific grounds are relied upon.

The appeals and cross appeals were heard by me on 8 October 1999. After

hearing submissions, I dismissed each of the appeals and cross appeals. I

said then that I would publish my reasons at a later time. I now do so.

The facts alleged by the prosecutor in the Court below were similar in each

case. On 30 August 1999, an Indonesian fishing vessel, the Lima Tujuh

arrived at Ashmore Reef which is in the Australian Territory of the Ashmore

and Cartier Islands. On board was a crew of five Indonesian nationals and

twenty-four foreign nationals who were passengers. Sidik and Najar were

amongst the crew. The Lima Tujuh was detected and detained by an

Australian vessel and other vessels were dispatched to bring the crew and

passengers to Darwin. Sidik and Najar were arrested and interviewed by the

Sidik told the police that he was born on 25 June 1984 and lived with his

parents in Bakalan, a small fishing village on the Island of Alor. He had

now left school and is employed as a fisherman. He had been recruited by a

stranger who visited his home and promised to pay him 250,000 Indonesian

rupiah as crew for a return trip on the Lima Tujuh to Ashmore Reef. He

understood that the vessel would be carrying passengers, but he said that he

did not know that the vessel would be taking foreigners to Ashmore Reef

illegally. He agreed that 250,000 rupiah was a lot of money for him (it was

in fact only $A34.78 as at the time of the hearing). He has had limited

education and claimed not to know what a passport was. He said he had

never been to Ashmore Reef before and did not know he was not allowed to

take foreigners there. He was later charged and rem anded in custody at the

Don Dale Youth Detention Centre. He has remained in custody ever since,

including the period up to the hearing of the appeal which by then was a

Najar told the police he was born on 10 December 1984 and lived with his

parents at Bakalan. He is also a fisherman. He said that he had been

recruited by a stranger who agreed to pay him 500,000 Indonesian rupiah to

take people to Australia. He said he knew that they were not allowed to take

foreigners to Ashmore Reef and that he knew that passengers on board the

Lima Tujuh were foreigners. However, he claimed that he did not know that

the Lima Tujuh was going to Ashmore Reef until they arrived there. He

claimed that he gave the money he was paid to his mothe r. He further

claimed that, before leaving Indonesia, he did not know that he was breaking

Upon commencement of the Migration Legislation Amendment Act (No 1)

1999 (Cth) on 22 July 1999, the maximum penalty for this offence was

increased from imprisonment for two years to imprisonment for ten years

S20C(1) of the Crimes Act 1914 (Cth) provides:

A child or young person who, in a State or Territory, is charged with

or convicted of an offence against a law of the Commonwealth may

be tried, punished or otherwise dealt with as if the offence were an

In this Territory, s35 of the Juvenile Justice Act requires that, subject to

certain exceptions, indictable offences shall be heard and determined

summarily by the Juvenile Court: see also s19. It is not in contention that

the Juvenile Court had jurisdiction to deal with the respondents summarily

for the offences which they had committed. In those circu mstances, it is not

in contention that s53(1)(g) precluded the Court from imposing a sentence in

excess of twelve months' detention in a detention centre, or twelve months'

imprisonment in a gaol in the case of Sidik; and in the case of Najar,

s53(1)(g) and s53(10) limited the Court's powers of punishment to a

maximum of one years' detention. However, these limitations were the

jurisdictional limits of the Juvenile Court, not the maximum penalties which

might have been imposed. The Juvenile Court could ha ve declined

jurisdiction in both cases and proceeded to a committal hearing pursuant to

s38 of the Juvenile Justice Act. If either respondent had been committed to

this Court for trial or sentence, and this Court was called upon to impose

sentence, there was no jurisdictional limits: see ss39(1) and 53(7) of the

Mr Bracks, for the appellant, submitted that the Juvenile Court erred in

suspending the sentences of detention. His principal contention was that the

offences were so serious and so prevalent that, notwithstanding the

respondents' ages, a deterrent sentence of actual incarceration was required

in each case. Reliance was placed upon the maximum penalty of ten years

imprisonment now prescribed by law which reflected Parliament' s concern

that the previous maximum of two years was not an adequate deterrent.

Reliance was placed on material led before the Juvenile Court to show that

this offence is becoming increasingly prevalent. It was submitted that the

figures showed that in 1997/8, thirteen vessels arrived carrying 157 persons;

in 1998/9, forty-two vessels arrived carrying 926 persons; in 1999/2000,

twelve vessels carrying 411 passengers had already arrived. The majority of

these unauthorised arrivals had been brought to Australia by Indonesian

fishermen. The Juvenile Court accepted that the offences were becoming

more prevalent and that, as Mr Cavanagh SM put it, the smuggling of illegal

immigrants into Australia was "an evil and malicious trade" and that there

was "a need to get a strong message out to Indonesians and any other

people who enter into this kind of trade that it won't be tolerated by the

Reliance was further placed upon the comments of McKechnie J in Ilam v

Dando (unreported, [1999] WASCA 129), at para 12:

These offences are part of a growing number of incursions into

Australian sovereignty. No doubt the major criminals are those who

stand in the shadows, taking large amounts of cash from hapless

travellers who wish to enter Australia illegally. They employ

persons, such as the appellants, to whom the prospect of owning their

own boat, even a leaky antiquated boat, or the payment of $200,

represents riches far beyond their reach in legitimate pursuits.

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.

It is the nature of this nefarious trade in human cargo that persons

such as the appellants, will often be recruited from among the poorer

peoples of the region to supply the necessary transport and to take all

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 the courts to

deal strongly with the appellants and those like them for the purpose

Australia has the right as a sovereign nation to secure its borders against

illegal immigrants, whether or not Australia's national security is threatened.

Clearly, the recent problems of illegal immigration is one which has been

faced by many nations over a long period of time. That is a matter of

history. In Australia's case, this country has attracted illegal immigrants

from certain oppressed countries because Australia is a signatory to certain

conventions on refugees, as a consequent of which Australia is bound to

ensure that refugees are not subjected to penalties on account of their illegal

entry or presence in Australia as a place of first refuge. In recent times,

people smuggling organised abroad by gangs of criminals has become

prevalent because Australia has been seen as a soft target due to its being a

signatory to the conventions and the low penalties involved. It is difficult to

believe that those trying to enter Australia this way are not aware that they

are illegal immigrants and face significant sanctions, including lengthy

periods of detention in detention centres even if, eventually, they are

accepted as refugees, and deportation if they are not.

It is clear from the Minister's second reading speech (Hansard, House of

Representatives, 30/6/99, pps 6191-3) that the recent increased penalties

were primarily designed to deter those involved in people smuggling for

profit. The courts' duty is to recognise that Parliament has decided that this

is a serious offence and to act accordingly. Clearly there is a very

significant cost to Australia to protect its borders from incursions by sea in

terms of the manpower and assets needed to detect, capture, detain, try and

deport illegal immigrants and those who facilitate their entry. The coastline

and territorial waters to be protected is very large, much of which is

sparsely inhabited. Detection measures may not always be successful.

Illegal immigrants pose the risk of the possible introduction of new diseases

which could threaten Australia's primary industries and native flora and

fauna, as well as the Australian people. It is for these reasons that the

courts are required to impose sentences which will act as a deterrent.

The participants involved in this kind of trade are first, the illegal

immigrants; secondly the principal organisers; thirdly the ship ow ners and

captains of the vessels involved, and lastly, the crews. S233(1)(a) of the

Act is not concerned with the illegal immigrants: it is directed to the others

mentioned. The principal organisers are never captured. They operate from

abroad and even if their identities were known, would be very difficult to

prosecute. Those who face the courts will usually be the masters and crews

of the vessels involved. It was submitted in the Juvenile Court that in recent

times there has been a growing trend to employ juveniles as crew members

as they have not been imprisoned in the past, but merely deported.

It is important to note that the respondents were not charged with an offence

against s232A of the Migration Act 1958 (Cth) which is in the following

organises or facilitates the bringing or coming to Australia, or

the entry or proposed entry into Australia, of a group of 5 or

does so knowing the people would become, upon entry into

is guilty of an offence punishable, on conviction, by imprisonment

It is not an element of an offence against s233 of the Migration Act 1958

(Cth) that the offender knows that the illegal immigrants being brought into

Australia would be unlawful non-citizens upon entry into Australia. The

respondents did not claim to have such knowledge; and as they were not

charged with the more serious offence created by s232A, the Court could not

take into account as a matter aggravating the offence, any suggestion that

they acted knowingly: see The Queen v Di Simoni [1981] HCA 31; (1981) 147 CLR 383.

Mr Bracks submitted that the prevalence of the offence; the need for general

deterrence; the recent increase in the maximum penalty; the increasing use

of juveniles as crew members and the roles played by the respondents,

required the Juvenile Court to impose an actual custodial sentence,

notwithstanding that the respondents were first offenders.

It was submitted that this Court has recognised that in some cases offences

committed by juveniles are so serious that an immediate custodial sentence

is justified, notwithstanding that the juvenile is a first offender. Mr Bracks

referred to some remarks of my own in P (a minor) v Hill (1992) 110 FLR

The approach of the courts when dealing with juveniles must be

cautious, patient and caring, with the interests of the juvenile

foremost in mind. Of course, there are some offences which warrant

an immediate custodial sentence notwithstanding that the offender is

a juvenile and notwithstanding, even, that the juvenile has no prior

convictions. But these are for extremely serious crimes, usually, but

not always, crimes of violence where it is right that the need to

punish and deter is given particular emphasis: see R v Williams

(1992) FLR 1 at 7.

Mr Bracks also referred to the decision of Thomas J in Grego v Setter

(unreported, Supreme Court of N.T., 19 September 1997) when her Honour

I consider general deterrence does have a role to play in the

sentencing of a juvenile offender, and adopt, with respect, the

remarks of Mildren J in Forrester v Dredge (unreported) No. JA78 of

"general deterrence does have a role to play even in t he

sentencing of juveniles and the weight to be given to it must

vary according to the circumstances of the case, including the

Overall, however, the consideration of general deterrence is not as

important in the sentencing of juveniles as it is in the case of

sentencing an adult. When sentencing a juvenile, considerations of

rehabilitation should always be regarded as very important, GDP

It is not necessary to review the numerous authorities which deal with the

sentencing of juveniles. Generally speaking juveniles who are first

offenders are not given actual custodial sentences unless the offence is a

particularly serious one, such as a murder, a rape, or armed robbery. These

offences are punishable by a maximum of life imprisonment. This is by no

means a complete list. In the Northern Territory there are numerous

offences which carry a maximum penalty of imprisonment for life, as well as

other offences which carry maximum penalties of lengthy prison terms, and

in those cases too, an actual custodial sentence may well be appropriate in a

However, I agree with Mr Cavanagh SM that a breach of s233 of the

Migration Act (Cth) is not an offence which would ordinarily warrant an

actual custodial sentence by a juvenile first offender. Whether the offender

is an alien or an Australian citizen, the same sentencing principles must

apply. It is not the point that the respondents would be deported if

convicted: see Tan Hai Huat v R (1990) 96 ALR 649. I also agree with Mr

Trigg SM that the offences were less serious than if the respondents had

been involved in bringing the illegal immigrants to the mainland. It is well

known that the Ashmore and Cartier Islands are uninhabited and detection

and capture is less difficult if those involved wait on board a vessel to be

apprehended, than if the immigrants are permitted to land on the mainland.

It is also relevant that the respondents had pleaded guilty at the first

opportunity and had already spent some time in custody at the time of

sentence. I do not consider that it has been shown that the Juvenile Court

erred in suspending the sentences imposed in all of the circumstances, or

In particular, I reject the argument that because those who organise this

trade are choosing to employ juveniles as crew because of perceived

leniency afforded to them, this is a proper reason for imposing condign

punishment on juvenile first offenders. The proper response to this kind of

behaviour is to more severely punish the adults who recruit, employ or use

such children whether they be the principal offenders, masters of the

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vessels, or otherwise in a position to encourage juveniles to become or

Ms Cox, who appeared for the respondents, submitted that the sentences

imposed were manifestly excessive. The argument was premised upon the

fact that a custodial sentence, albeit suspended, is still a custodial sentence

(and consequently the learned Magistrate had given too much weight to

general deterrence), and the length of the period of the bond. As Ms Cox

points out, the respondents will be subject to their bonds until after they

reach adulthood. However, that does not mean that the bonds are

necessarily excessive in length. The Juvenile Court clearly intended to

place significant emphasis on special deterrence. I do not think the Court

was wrong to do so, particularly as there is a strong temptation in the case

of young men from poor villages in Indonesia to take the r isks of

incarceration in return for what to them is often a large sum of money.

There is less risk that they would ever be convicted of any other offences

against Australian law, except perhaps illegal fishing, so there is less

oppressiveness with a longer bond than there would be, if, for example, the

children were Australians. Although a suspended sentence is a sentence of

imprisonment, and can act as a general deterrent, it clearly has less weight

than an actual custodial sentence. I do not consider the sentences to be

manifestly excessive. No other error has been shown.

Accordingly the appeals and cross appeals are dismissed.