Court of Appeal (WA)|2002-04-09|Before: Wallwork J, Murray J, Kechnie J

Kadem v The Queen [2002] WASCA 133 (9 April 2002)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : KADEM -v- THE QUEEN [2002] WASCA 133

Criminal law - Sentence - Illegal immigrant - Delay of one year in laying charges - He had confessed almost immediately on apprehension - Co-operated with authorities - On appeal

Migration Act 1958 (Cth), s 232A

Crimes Act 1914 (Cth), s 16A, s 21E, s 29D

Respondent : Commonwealth Director of Public Prosecutions

Arthur Reginald Roberts & Andrew Hope Roberts v The Queen [1999] WASCA 273

Cita v The Queen, Lamaha v The Queen [2001] WASCA 5

Hayes v The Queen [1981] WAR 252

Iskander v The Queen [2001] WASCA 409

Little v The Queen [2001] WASCA 87

Malvaso v The Queen [1989] HCA 58; (1989) 168 CLR 227

Mustafa v The Queen [2001] WASCA 192

Nguyen v The Queen [2001] WASCA 72

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Cartwright (1989) 17 NSWLR 243

R v Gallagher (1991) 23 NSWLR 220

R v Kasim, Batjo, Koli and Sidin, unreported; SCt of NT; 13 October 2000

R v Lapulu & Ors, unreported SCt of NT; 7 September 2000

Wale v The Queen [2001] WASCA 418

Wong v The Queen [2001] HCA 64; 185 ALR 233

X v The Queen [2000] WASCA 355

1 WALLWORK J: On 9 April 2002 this Court unanimously granted the applicant leave to appeal and allowed his appeal against a term of 4 years' imprisonment with a non-parole period at 2 years. The Court reduced the 4-year sentence to one of 3 years' imprisonment. The applicant was ordered to serve 18 months of that term and then to be released upon him entering into a recognisance to be of good behaviour for a period of 18 months in the sum of $5,000. The commencement date for the 3-year term was 19 January 2001. The 3-year term was to include the 1-year discount and the 6-month discount which was originally fixed by the sentencing Judge for the applicant's future co-operation pursuant to s 21E of the Crimes Act 1914 (Cth). The following are my reasons for joining in the order of the Court.

2 On 1 November 1999 the applicant with his wife who was pregnant and five children arrived illegally at Ashmore Reef on board an Indonesian boat, the "Harapan Satu". The applicant and his family were some of the 353 illegal immigrants on board the boat. They had made three attempts to travel illegally to Australia by boat. This was their third attempt.

3 The applicant had initially paid the sum of $8,500 to a person known as "Ahmed", an Indonesian citizen, in order to secure a passage to Australia for himself and his family. "Ahmed" subsequently offered to refund the applicant's money if the applicant acted as an interpreter for other asylum seekers. The applicant agreed to assist Ahmed in that capacity.

4 On arrival at Ashmore Reef the applicant and his family were immediately taken into immigration detention. He was first interviewed by federal agents on 5 November 1999. He immediately co-operated with the investigating agents. He was not charged with any offence until approximately one year later in December 2000. He was brought before the Perth Court of Petty Sessions for the first time on 19 January 2001. He initially faced two charges, being:

(1) Between 1 September 1999 and 1 November 1999 at Ashmore Islands he facilitated the bringing into Australia of a group of 350 people and did so assuming that the people would become, upon entry into Australia, unlawful non-citizens contrary to s 232A of the Migration Act 1958 (Cth).

(2) Between 1 July 1999 and 30 October 1999 at Jakarta and elsewhere in Indonesia he facilitated the bringing into Australia of a group of more than five people and did so knowing that the people would become, upon entry into Australia, unlawful non-citizens contrary to s 232A of the Migration Act 1958 (Cth).

5 The applicant ultimately pleaded guilty to one count of between 7 September and 2 November 1999 knowingly facilitating the bringing to Australia of a group of five or more unlawful citizens contrary to s 232A of the Migration Act 1958 (Cth). The specific acts of facilitation alleged against the applicant were agreed as between the Crown and the defence.

6 The agreed acts of facilitation appear at page 159 of the appeal papers and are as follows:

(1) On one occasion the applicant met a family of non-citizens at the airport on their arrival in Indonesia and assisted to escort them from the airport to the hotel.

(2) The applicant met non-citizens at the hotel and translated and paid for them on behalf of Ahmed when they were threatened with eviction. He was later reimbursed.

(3) The applicant negotiated for and collected money for non-citizens on behalf of Ahmed.

(4) The applicant interpreted between organisers and non-citizens and acted as a go-between when necessary.

(5) The applicant interpreted for non-citizens relating to travel on buses.

(6) The applicant paid some hotel accommodation, travel and food expenses on behalf of Ahmed.

7 It was agreed that the applicant had made three attempts to travel to Australia unlawfully by boat and that the two earlier attempts had been unsuccessful. In the statement of agreed facts it was stated that initially the applicant had arranged with the smuggler Ahmed to travel by boat to Australia with 140 people in August 1999. He has not been able to arrange for the $US8,500 payment to Ahmed on time and so was unable to travel on that boat. He later apparently paid Ahmed that sum of money for his family to travel on the next available boat. The applicant then agreed to assist Ahmed to ensure that the next boat would have enough people to allow it to travel viably. He said he did this because he was worried about the time being taken to arrange the passage in light of the fact that he and his family's visas had expired and also because Ahmed had agreed to refund the $US8,500 paid if the applicant assisted him.

8 It is stated that an agreement was made between the smugglers, Ahmed and "Majid", that Majid would take the boat, repair it and ferry the non-citizens to Australia. Majid would be paid $60,000. More non-citizens were needed. Some non-citizens paid further amounts of money. The boat was to leave from Sumbawa.

9 The non-citizens travelled from Jakarta by bus and then by bus and ferry through Bali, Lombok and then to Sumbawa. They then embarked from the beach at night in small boats to a larger boat. Majid had replaced Ahmed's crew with his own. Majid supervised the departure and, in particular, when the boat was boarded by local police officers, he allegedly arranged for a bribe to those officers.

10 The boat arrived at Ashmore on 1 November 1999. The applicant received no direct financial gain from the arrangements other than the promise of free passage for him and his family to Australia. He did not receive his $US8,500 back.

11 When sentencing the applicant, the learned Judge said that the statutory penalty for the applicant's offending behaviour had recently been increased in response to what was seen by the Government to be a dramatic increase in the trade of people trying to enter Australia illegally. On 22 July 1999 the penalty for the relevant offence had been increased to a maximum of 20 years' imprisonment or a fine of $220,000 or both.

12 The learned Judge said that "facilitating" meant organising or helping in a lesser role in the bringing of non-citizens into Australia. His Honour said that the applicant and his wife had been part of a group of 353 people on a fishing vessel. All of those people were non-citizens, mostly from Iraq and Afghanistan. They did not hold Australian passports or entry visas and thus were classified as unlawful non-citizens. He said that the applicant had been in Iran in 1990. In July 1999 he had been given the telephone number of a person who, he was told, could help him and his family to get to Australia.

13 The applicant was fluent in Arabic and Farsi and in Indonesian, as well as English, because he had been able to communicate with his counsel and had not needed an interpreter during the proceedings. He had left Iran and gone to Malaysia where he arrived on 6 July 1999. He had then proceeded to Indonesia. He arrived there on 13 July 1999. On the applicant's first attempt to reach Australia there had been difficulties. On a second attempt there were further difficulties. Eventually he had been able to join the group of people on the particular boat which had arrived at the Ashmore Islands.

14 The learned Judge said he had disregarded certain allegations that may have established that the applicant had played a greater role in the hierarchy than the captain and crew of the vessel. His Honour said that in the statement of material facts it had been agreed that the applicant had assisted as the middle man between the people organizing the smuggling of the illegal immigrants and the non-citizens who had intended to come to Australia. His Honour said he had been told that the applicant was the first person in such a role to come before the Courts for sentence.

15 The learned Judge said that the primary organising smuggler had been a man named Ahmed, an Indonesian. He was the person that the applicant had principally dealt with and he was the person concerning whom the applicant had assisted the authorities. By that, his Honour meant that the applicant had provided certain information to the relevant authorities. The Judge said that Ahmed had organised two failed attempts and had then had made arrangements for another smuggler called Majid with a third boat. This was the boat that the applicant had joined.

16 The Judge said that the applicant had originally paid $US8,500 for himself and his family to Ahmed. The initial trip had not been successful because the boat was unable to reach the destination. There had been a further trip. The deal was that if the applicant provided assistance to Ahmed in relation to ensuring that other people were available and were able to pay money, and if the application acted as Ahmed's go-between with those people, Ahmed would refund the applicant his money. Therefore the applicant and his family would not have to pay for the trip to Australia.

17 The learned Judge said that the applicant had not received any money apart from having the promise of his passage being refunded. The applicant had never had the money refunded, but it had been promised that he would have it refunded.

18 With respect to the facilitation, his Honour said that the Crown relied on the following matters: the applicant had met a family of non-citizens on their arrival at the airport and had escorted them to a hotel. He had met non-citizens at the hotel and translated and paid for them on behalf of Ahmed. When they were threatened with eviction, the money the applicant paid was later reimbursed to him. The applicant had negotiated for and collected money from non-citizens on behalf of Ahmed. He had interpreted between the organisers and non-citizens and had acted as a go-between when necessary. He had interpreted for the non-citizens relating to travel on buses and on the ferry trip from Jakarta to the eventual point of departure.

19 His Honour said that he had received several letters and statements from non-citizens who had confirmed that the applicant had interpreted for people who could not speak English. He had explained to those people what Ahmed wanted. That confirmed much of the role which the Crown said the applicant had played in facilitating the entry of those people. His Honour said it had also been said that the applicant had paid some hotel accommodation and travel and food expenses on behalf of Ahmed for which he had been reimbursed.

20 Importantly, the learned Judge said that he had noted that the number of people on the relevant boat which was eventually apprehended at Ashmore Island, had been the third-largest group of people on a boat to that time and probably still to date, and that was a factor which he took into account.

21 The applicant complained of that last remark. He said that he had not been responsible for the third-largest group of people on a boat to that time and he had specifically pleaded guilty on a different basis

22 The learned Judge said there were no other offences which the applicant had committed which he had to take into account and that the relevant offence had not appeared to be part of a course of conduct on the applicant's part, except insofar as he had continued to be the go-between between the organiser and the passengers.

23 The learned Judge said that he had noted that contrition had been shown by the applicant by his plea of guilty and by his co-operation with the authorities, "not only recently but also in the number of statements you gave to them at an earlier time". He said he did not expect that the applicant would be likely to offend in this way in the future.

24 The Judge noted that the applicant was 40 years of age and that he was married with six children, one of those having been born in Australia. His eldest son had attempted to commit suicide whilst in a detention centre in Victoria. He said that the applicant had a business background and had lived in Kuwait for 30 years until it had been invaded by Iraq in 1990. At that stage the applicant and his family had moved to Iran and remained there until 1999. Whilst in Kuwait the applicant had worked in the commercial field of selling land and houses and as a share broker. When he had gone to Iran, initially he lived off his savings and had then commenced religious studies in the city of Qom.

25 In Iran he had been involved in the live sheep trade, but around 1998 he had become an object of interest to the Iranian intelligence authorities. He had been taken into custody. It had become clear that he was an Iraqi and that he was not a person who was welcome to remain in Iran. Apparently having been held in detention under some hardship for a period of time, the applicant had been released. He had then realised that he had to leave Iran. Whilst in Iran he had not been able to obtain education for his children. He could see no future for the family there. That was what had caused him to approach the person in Indonesia.

26 The Judge said he had received letters from people who knew the applicant as a good man and a religious man and obviously a man who had the regard of other members of the community in which he had been involved.

27 The Judge said that the applicant had received some information that he and his family could become residents of Australia under the refugee policy. However, he now knew that what he had been told was not true and that he had been misinformed. His Honour said that what would happen to the applicant in the future would have to await a decision of the Department of Immigration.

28 His Honour said he was mindful of the fact that the applicant had a dependant wife and six children. The length of the family's time in Australia would be at the discretion of the Minister and the department.

29 The Judge said that in fixing a sentence he was mindful of the applicant's plea of guilty and of the co-operation he had given to the authorities in the way which had been outlined, and concerning which, he had been informed on that morning. He believed, in fairness, that it was appropriate that an allowance should be given for the co-operation the applicant had given. His Honour noted that it had been submitted to him that because of the time the applicant had already spent in custody, he should not be required to spend any further time in custody.

30 The Crown had submitted to the Judge that the applicant's role as a facilitator had placed him in a role more blameworthy than the skipper and the crew, because he had been the go-between between the organisers and the non-citizens for a lengthy period of time, and not just involved, like the captain and the crew, for the duration of the journey. His Honour said he would not accept the Crown's submission in that regard, but, having said that, he said he saw the applicant's role as being no less blameworthy than that of the crew. The applicant had been the go-between between the organisers and the non-citizens. He had had the language skills to pass on messages and instructions to help the persons pay their money and to get to the boat. In addition to all of the matters his Honour had mentioned, he said he was mindful that the Court was required to impose sentences which might have the effect of deterring people who were minded to commit similar offences. In other words, that there was an aspect of general deterrence in any sentence for offences of this kind.

31 The Judge set out the reasons for the present immigration policy. He said that he was prepared to give the applicant credit for his plea of guilty because, although he had initially pleaded not guilty, as soon as the indictment had been amended and the other charge had been dropped, and the relevant charge amended, the applicant had been prepared to plead guilty. Thus it was fair that he receive an appropriate discount. His Honour said that the starting point for the sentence was 7 years' imprisonment and that a discount of 2 years would be given for the applicant's early plea of guilty.

32 The Judge said that on the previous Monday he had adjourned the sentencing hearing to enable the Crown to seek instructions in relation to co-operation by the applicant, of which the learned Judge had been informed that morning. In relation to the additional information he had received, he said he was prepared to offer a further discount of 1 year for that co-operation.

33 His Honour said that the applicant must realise that "...if you fail to carry out your promise, you will be liable to serve the time" that he had given him credit for, concerning that co-operation. His Honour then reduced the sentence by a further year to allow for that future co-operation. That had the effect of reducing the initial starting sentence of 7 years' imprisonment to one of 4 years' imprisonment, which sentence was to date from 19 January 2001.

34 The applicant complains of a number of matters, but there were two significant complaints which he made. The first was that, although the applicant had been given a discount of 2 years from the starting point of 7 years for his early plea of guilty and a further 1 year for his future co-operation, which he could lose if he did not co-operate as promised, he had been given no real discount for his co-operation from the start of his detention back in 1999, when he had given a number of statements to the authorities which could be described as co-operation by the applicant. I will not go into the details of those statements for obvious reasons, but it is apparent that the co-operation of the applicant from the start appears to have been comprehensive.

35 The applicant also complained that he had been held in custody for approximately one year prior to 19 January 2001 when he had first been brought before a Court and from when the sentence was ordered to commence. He said he had made a full confession from the time he had first been apprehended on 1 November 1999. He said he could have been charged at that time. In that event his sentence would have been backdated by an extra year.

36 Counsel for the applicant submitted that the applicant had not been part of the original organisation in Indonesia, but had "facilitated" in the way in which he had done in order to get to Australia with his family. Counsel noted that the learned Judge had said that the applicant's role had been no less blameworthy than that of the crew. It had not been a purely commercial venture on his part. The crewmen on the boat had received a sentence of 4 years with a non-parole period of 2 years, but they had not been given any additional benefit for co-operation.

37 It was submitted for the applicant that he had co-operated from the time of his apprehension to the time of the sentence. In reality, he had been given no appropriate deduction for that early co-operation. The future co-operation was a separate matter, as provided for under the Act.

38 It was submitted that the learned Judge, in his sentencing remarks, had accepted that the applicant had always co-operated with the authorities, not only for the future, but also in the number of statements he had given to them at an earlier time. It was submitted that the year discount had clearly been only for the future co-operation.

39 The skipper of the boat received 7 years' imprisonment with a non-parole period of 3 years. The three adult crewmen were each sentenced to 4 years' imprisonment with a non-parole period of 2 years. It was submitted for the applicant that the only discount allowed to the captain and the crew had been because they had pleaded guilty.

40 It was argued for the applicant there was nothing in his antecedents unfavourable to him. It was contended that the Judge had erred in referring to the fact that the group of people on the boat were the third-largest group of people on a boat to that time "and probably still to date" and then taking that factor into account. It was pointed out that the applicant had not pleaded guilty, as had the captain of the boat, to facilitating the entry of 353 people into Australia. It was submitted that at the highest it could be said that the applicant had probably assisted in some way with about 110 to 120 people. He had not in any way encouraged people to come in the sense of going out and recruiting them. Rather he had "facilitated" them when he had been on the scene trying to get himself and his family to Australia.

41 With respect to the question of delay, it was said for the applicant that he had made an initial statement on 5 November 1999 and then a second statement on 20 December 1999. Finally, he had given a comprehensive record of interview on 31 March 2000. That co-operation had not been recognised in the ultimate sentence. The statements had been made approximately a year before he was charged or even told he was going to be charged. It was submitted that, "...when one works out the percentages allowed for all the mitigating features, including the plea of guilty and past co-operation, it came to about 28 per cent." There had been a plea of guilty at the first reasonable opportunity, plus considerable co-operation prior to the sentencing date. It was submitted that the co-operation had commenced almost as soon as the applicant had set foot on Australian shores. It had continued to the time of sentencing. The three statements to the prosecuting authorities had been significant, substantial and indicative of a high degree of remorse.

42 It was further submitted that there had been an unexplained delay between the time the applicant had made a clean breast of his offence and when he was charged. If he had been charged earlier, he could have been convicted earlier and been serving a sentence dating back to when he was charged. Even if he had been charged by, say, 19 January 2000, he could have obtained a further year of backdating of the sentence.

43 It was submitted that the applicant had always been prepared to plead guilty to what he had told the authorities which information had ultimately formed the basis of the acts of facilitation. He had made confessions at a very early stage and there had been enough information given by him for him to have been prosecuted.

44 In R v Miceli [1997] VSC 22; (1997) 139 FLR 309 Tadgell JA, with whom Winneke P and Charles JA agreed, in a case where the applicant had pleaded guilty to one count of defrauding the Commonwealth contrary to s 29D of the Crimes Act 1914 (Cth) by claiming diesel fuel rights to which he was not entitled, said at page 312:

"There was a year of unexplained delay between the time the applicant made a clean breast of it to the Commonwealth authorities and the time he was charged on summons. A subsequent delay of some further 14 months before he was dealt with may or may not have been attributable to the pressure of the County Court business but none of the 26 months' delay, it must be said, was attributable to the applicant himself. He was entitled to have the delay overall taken into account in the determination of the disposition of his case and he was denied it. That is enough to entitle the applicant to have the sentence set aside and a fresh sentence imposed by this Court."

45 Having regard particularly to the approximate one years delay in charging the applicant, and also to his early co-operation with the authorities and willingness to confess to the offence, followed by his early plea of guilty, in my view, the applicant should have been given approximately an extra one year's credit in the time which his Honour deducted from the 7-year starting point.

46 It was for those reasons that I agreed with the order of the Court reducing the head sentence from 4 years' imprisonment to one of 3 years' imprisonment with the consequent orders.

47 MURRAY J: I have read the reasons for decision published by Wallwork and McKechnie JJ. They express sufficiently for me the reasons why I joined in the orders pronounced on 9 April. I have nothing to add.

48 McKECHNIE J: On 9 April 2002, the Court granted the applicant leave to appeal and reduced his sentence to one of 3 years imprisonment.

50 The facts are set out in the judgment of Wallwork J.

51 Substantial cooperation must always be rewarded, not only because it is a matter of mitigation in the offender's antecedents, but also to send a general message to others in a similar position that actual and extensive cooperation will be rewarded: Radebe v The Queen [2001] WASCA 254; (2001) 162 FLR 313 at par 33 - 35.

52 The Judge properly recognised the cooperation in the sentence he imposed. Furthermore, I consider the Judge took into account the early plea of guilty and made due allowance for it in selecting a term of imprisonment of 4 years.

53 There is only one area where, with respect, I consider the Judge erred.

54 The appellant arrived illegally in Australia on 1 November 1999 and within a few days had admitted his role in the offence. He was further interviewed on 20 December 1999 and 31 March 2000.

55 He was not charged until 19 January 2001. There was a preliminary hearing on 30 July 2001. On 5 October 2001 the appellant was arraigned and pleaded guilty. He was sentenced on 10 October 2001.

56 No explanation was proffered as to the delay in laying the charge but there is no suggestion that the appellant caused or contributed to that delay.

57 While the reasons for an extent of delay between offence and disposition will vary from case to case, an offender is entitled to have the delay considered: R v Todd (1982) 2 NSWLR 519 per Street CJ at 519 - 520; R v Shore (1992) 66 A Crim R 37 per Badgery-Parker J at 45; R v Miceli [1997] VSC 22; (1997) 139 FLR 309 per Tadgell J at 312; [1997] VSC 22; (1997) 94 A Crim R 327.

58 In the present case, the delay had a special effect upon the appellant which was not sufficiently recognised in the sentence. The appellant was a person who was in detention, having entered Australia illegally. He remained in detention throughout the period between his confession and the charge. Had he been charged earlier, this time might have been served in custody rather than detention.

59 Because of this special circumstance there was an error in failing explicitly to acknowledge the effect of the delay on the appellant.

60 For this reason I joined in the order allowing the appeal, reducing the sentence to 3 years imprisonment and imposing a recognisance release order to be of good behaviour for 18 months to come into effect 18 months after 19 January 2001.

Kadem v The Queen [2002] WASCA 133

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Kadem v The Queen [2002] WASCA 133 (9 April 2002)

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