Ilam v Dando [1999] WASCA 129

Crimes Act 1914 (Cth) s 19AB

Respondent : Commonwealth Director of Public Prosecutions

Respondent : Commonwealth Director of Public Prosecutions

Respondent : Commonwealth Director of Public Prosecutions

El Karhani 51 A Crim R 123

Howell and Utting v The Queen (1989) 2 WAR 60

Oancea (1990) 51 A Crim R 141

Paunovic (1990) 51 A Crim R 174

Sinclair (1990) 51 A Crim R 418

Swain v The Queen (1989) 41 A Crim R 214

1 On the late evening of 22 February this year, as a result of information supplied by members of the public, police at Christmas Island went to the Christmas Island jetty and discovered a boat approximately 12 metres in length of wooden construction which contained 16 male persons. Three of them were crew members and are now the three appellants. The balance were four Algerians and nine Iraqis. These thirteen were all bound illegally for Australia. The vessel was boarded and none of the persons could produce valid passports or current Australian visas.

2 The detainees who were not crew, advised police they had paid between USD$900 and USD$1600 for the journey from West Java to Australia. The vessel contained charts detailing Indonesia and Christmas Island, a receipt for the purchase of the vessel some 10 or 11 days before in the name of the master and a GPS satellite navigator. There were 15 plastic 20-litre water drums and an empty 200 litre fuel drum.

3 The boat itself was unseaworthy and did not comply with current Australian codes. The vessel, while in harbour, was leaking and if not pumped out on a two hourly to four hourly basis was likely to sink. Indeed, the master of the vessel indicated that when he purchased it it was leaking. It required constant bailing in 3-hour periods, at which time about 500 litres would be removed. Although there were 13 life jackets on the boat, there was not other safety equipment such as satellite warning devices or radio.

4 The master, who is one of the appellants stated that he had been approached by a person known as "Boss" who paid AUD$5000 equivalent in Indonesian money for the purchase of the vessel which was put in the master's name. If the journey was satisfactorily completed, the master was to get the boat. $5000 was a large amount of money and it would take him many, many years to be able to afford a boat.

5 The captain was also offered $300 to take the passengers. Each of the crew was offered $200 each, which for them was a large amount of money. All three effectively shut their eyes to what they knew was the true position, namely that the passengers were seeking illegal entry into Australia. Because of the structural instabilities of the vessel, it was destroyed.

7 In relation to the two crew members, they were charged with 13 offences under the Migration Act 1958 (Cth) s 233(i)(a), one offence for each non-citizen. They were each sentenced to 4 months' imprisonment on each complaint. The first four terms were to be ordered cumulatively and the balance of the terms concurrently, a total of 16 months each.

8 In relation to the master, he was also charged with 13 offences under the Migration Act but was, in addition, charged with an offence under the Navigation Act 1912 (Cth), taking the vessel into the territorial seas of Christmas Island in an unseaworthy state and endangering the lives of those on board. He was sentenced to 8 months' imprisonment for each Migration Act offence. The first four terms were ordered to be served cumulatively, making a total of 32 months. The remainder were ordered to be served concurrently. He was sentenced to a further 15 months' imprisonment for breach of the Navigation Act, that sentence to be served cumulatively and he was, therefore, sentenced to a total of 47 months' imprisonment.

9 The learned Magistrate declined to set a recognisance release order in respect of the crew or a recognisance release order or non-parole period in respect of the master of the ship, stating in effect that he wanted each person to serve the full amount of the sentence which he had imposed.

10 On 14 July this year leave was granted extending time and leave to appeal. With co-operation between appellants' counsel and the respondent the matter has been brought on for hearing today. The appellants' appeal was on two bases - first, an appeal against the severity of the terms of imprisonment and, second, an appeal against the failure to fix a recognisance release order or non-parole period.

11 Each of the appellants has abandoned the appeal against the severity of sentence. The appeal against the refusal to make a recognisance release order or non-parole order has been conceded by the respondent as appropriate to succeed.

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.

13 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 the risks.

14 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.

15 Counsel for the appellant is accordingly correct in abandoning the appeal against the length of the sentence.

Recognisance release order and non-parole period

16 The Crimes Act 1914 (Cth) s 19AC(1) provides that in the case of each of the appellant crew a recognisance release order should be made unless the court decides that an order was inappropriate. In the case of the captain, the Crimes Act s 19AB(1) required a non-parole period or recognisance release order to be made.

17 The Magistrate did not make an order because in each case he wished the appellant to spend the entire time to which he had been sentenced in custody. The Crimes Act applies to all persons sentenced by courts for offences against Australian Commonwealth law. All are entitled to the benefit of its provisions, even persons operating such as these appellants.

18 It is an error of principle to fail to take into account legislation dealing directly with minimum terms simply to ensure the longest possible period in custody. There was no factor which militated against the setting of a minimum term and other facts positively in favour, including the antecedents of each appellant and the general circumstances.

19 In my opinion, the Crown's concession is entirely appropriate. The usual range for a recognisance release order or non-parole period is somewhere between a half and two-thirds of the sentence, although it is open to set a period below that. When sentencing a Commonwealth offender the court takes into account those matters which are generally set out as sentencing principles in the Crimes Act Div 2 s 16A.

20 In this particular case, I regard the circumstances of the captain as more serious and requiring a significant minimum term in custody for the purposes both of punishment and particular deterrence to him as well as general deterrence. In the case of the appellant crew members, I consider that an appropriate term would be to make a recognisance release order to take effect 8 months after their sentence, so that they will have served one-half of the period.

21 I therefore propose, in the case of the two crew members, whose names are Ilam and Jono, to allow each appeal and to vary the sentence imposed by confirming the lengths of sentences imposed by the Magistrate but fixing a recognisance release order to take effect eight months after they were taken into custody, that is 22 February 1999.

22 In the case of Tasar, the captain, I propose to allow the appeal by confirming the sentence imposed by the Magistrate but by fixing a non-parole period of 26 months from 22 February 1999.

23 Pursuant to the Crimes Act s 16F, I am required to explain the sentence to the appellants. They are presently lodged in Geraldton Prison. I direct that the transcript be sent to the prison and ask that the prison superintendent make arrangements for an interpreter to interpret these reasons to them.

24 I should explain therefore that in relation to the appellant Tasar, that he will be imprisoned for a period not less than the non-parole period I have imposed. If a parole period is made it may be subject to conditions and it may be amended and revoked and if he breaches, without reasonable excuse, any conditions he may be brought back before the courts to be dealt with.

25 Similar comments and explanation can be given to the other two appellants in respect of their recognisance release order.