R v AMBO

Offender's participation 6The offender met a person called 'Abdul' in a coffee shop near his home town. That person asked him if he wanted to work for a period of about a month. He was to receive just under 1.9 million Indonesian Rupiah (about A$217). After the initial meeting, the offender travelled by bus to another port area and located a vessel which was the vessel used on the trip to Christmas Island. Thereafter the offender stayed with the vessel. He was present when the 53 passengers were loaded onto the vessel from another vessel, it would seem off a part of the Indonesian shoreline. The offender had recruited his younger nephew - who was originally a co-accused with the offender - to travel with him. 7The vessel had travelled for some 60 hours from Indonesia to a point about 2000 yards inside Australian territorial waters off Christmas Island where it was apprehended. The condition of the vessel was evident from photographs tendered during the course of the trial. In accordance with what is apparently standard Naval practice, the SIEV was subsequently towed out to sea off Christmas Island and incinerated. The authority for that action is unclear but is said to be based on quarantine requirements. There was no evidence as to the ownership of the vessel. The offender's evidence was to the effect that he travelled to a marina or port in Indonesia where he was shown the vessel. 8During the trip, the vessel either broke down or suffered mechanical defects and was repaired by two people from an accompanying vessel - one of them was the individual referred to as Younes. The offender's evidence was that Younes told him to continue following an arrow marked in the wheelhouse in the direction of Australia.

Offender's activities 9There was evidence from some of the passengers that they observed a GPS and phone on the SIEV. The offender gave evidence that he used the phone and GPS equipment and threw it overboard immediately prior to the vessel being boarded by the RAN party. Evidence was also given during the trial as to the offender's other involvement in the trip and the provision of facilities (including food, water and rudimentary shelter) for the passengers. 10The statements of seven of the passengers on the SIEV who gave evidence were to the effect that they had made payments - which varied between A$8,000 and A$10, 000 - to the organisers in either Iran or Iraq and subsequently in Indonesia. Following those payments, they travelled from Iran, Iraq, or other locations to either Malaysia or Jakarta, Indonesia. Thereafter, they travelled around Indonesia in buses and stayed in various kinds of accommodation. Ultimately, they were all located together on a beach in Indonesia and embarked under cover of darkness onto, successively, two boats. The offender was paid, on his evidence, about A$220 which, given the overall amounts paid by the various passengers, is relatively insignificant.

Role and criminality 11I find that the offender's role was that of the person in charge of the vessel, if not from the commencement of the trip, then certainly once Younes had departed from the vessel. Not only did he navigate the vessel and steer it, but he also made arrangements for the welfare of the passengers on board the vessel and was effectively in charge. Moreover, his actions in throwing overboard those pieces of communication equipment which could possibly provide a link to those involved in the overall organisation, the provision of the vessel and the giving of directions is inexplicable other than in terms of an awareness of the criminality of his actions.

Policy of legislation: people smuggling operations 12The evidence in this trial demonstrated that there are a number of stages involved in this people smuggling operation which appear to be generic in the cases currently before the courts. Those include (at least);

• The engagement of the people smugglers by those wanting to come to Australia. That frequently takes place in centres such as, in this case, Tehran, Baghdad or Kurdistan where those involved are known to be desperate to leave the country. None of those wanting to come appeared to have any real difficulty in contacting the organisers;
• The arrangement of travel and associated travel documents for those individuals to various other centres -generally in the Middle East;
• The manipulation (and possibly bribery) of authorities in those other centres to enable their passage without necessary visas or other travel documents to centres such as Malaysia or Indonesia;
• The arrangements for such persons at those centres to be processed and released, again, in the absence of documentation;
• The transport of the persons - once they have been either processed in the countries or released from various forms of detention - to various parts of Indonesia. In this case, that involved the transport and isolation of the individuals in villas to which they were transported by bus;
• The organisation of boats from centres in Indonesia which were outside the normal purview of intelligence and surveillance agencies. In this case illegal immigrants were transported by two smaller vessels under the cover of darkness to the SIEV ultimately used;
• The transport of people on those boats to other larger vessels which would ultimately transport the applicants to Australia;
• The provision of facilities such as food, water and cover for people on the boats during the course of the trip;
• The actual sailing of the vessel to Australian waters. That involves the location and employment of sailors who are prepared to undertake the risks of such travel. 13Those stages all require and involve, individually and together, a sophisticated organisation by a number of individuals having extensive contacts with a variety of agencies in a number of countries. The evidence was that there was extensive mobile phone and coded contact in a variety of places and countries. The offender came into the operation at the last two stages. 14The principles of sentencing normally require an assessment of the role of the offender which can be a matter of mitigation - for example, the role of a courier in drug trafficking matters is different from that of a principal with the consequent difference in the sentence imposed - see R v Olbrich (1999) 199 CLR 270; [1999] HCA 54. In that case, the High Court said that that should not obscure an assessment of what the offender did. See also Tyler v R ; R v Chalmers (2007) 173 A Crim R 458; [2007] NSWCCA 247 in the context of conspiracy cases. 15The provision that this offender has been charged under - the provision which attracts the mandatory penalty - uses the phrase "organises or facilitates". Whilst the indictment on which Mr Ambo was tried only referred to 'facilitated' - appropriately given his acts of participation - the phrase 'organises' usually pre-supposes a higher degree of criminality than 'facilitates'. The mandatory penalty applies in both situations and makes no differentiation as to the stages involved.

Offender's specific role 16The evidence in this case indicates that this offender was involved in the last stage only. Clearly the offence of facilitating 'people smuggling' can involve any one or a number of these functions or stages as set out. People being brought before the courts in Australia are generally only those involved in the last stage of the operation. The amount the offender said he received from this operation was in the order of hundreds of dollars compared to the fees paid by each of the applicants - which seems to have been of the order of $8, 000 - $10, 000. 17By analogy with the sentencing principles in drug importation/trafficking cases, this offender is in the role of a courier rather than an organiser or administrator. His criminality is a lot less than that of a principal involved in the overall administration of the operation. Normal sentencing principles would suggest that couriers should be treated a lot more leniently than principals - R v Muanchukingkan (1990) 52 A Crim R 354 per Wood J - although substantial penalties should still apply. 18Nevertheless, I am required under the provisions of the Act to impose the mandatory penalty which applies to the range of activities which can be covered by the generic offence of 'people smuggling'. That does not allow a distinction in sentencing offenders such as Mr Ambo and those involved in the overall scheme and the other stages of the operation I have outlined above.

Authorities 19There are a series of decisions which have considered the mandatory penalty established. In a recent Western Australian Supreme Court decision of Bahar & Ors v The Queen [2011] WASCA 249, McLure P referred to the statutory minimum and maximum penalties as the: "...floor and ceiling respectively within which the sentencing judge has a sentencing discretion to which the generally sentencing principles are to be applied." [54] and also: "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." [58] 20The exercise of the discretion in these circumstances was also examined in R v Pot, Wetangky and Lande (Supreme Court of the Northern Territory, unreported, 18 January 2011) per Riley CJ who held that there was no requirement to determine the appropriate severity of a sentence by reference to a pre-determined base. His Honour the Chief Justice said that: "...the section provides the minimum sentence that can be imposed in the identified circumstances but does not go so far as to reserve that mandatory minimum sentence only for cases at the lowest end of seriousness for relevant offending..." After considering Wong v R (2001) 207 CLR 586 at 611, His Honour went on to say: "Where the appropriate sentence so determined is less than the mandatory minimum, the Court must then impose the mandatory minimum in accordance with the requirements of the Migration Act." 21That aspect was further referred to by His Honour in R v Sailing and Maley (Supreme Court of the Northern Territory, unreported, 11 February 2011) , where Riley CJ remarked: "In my view the Court should apply the sentencing principles set out in the Crimes Act and those applicable at common law and, taking into account all of the relevant factors, determine an appropriate sentence. Where the appropriate sentence so determined is less than the mandatory minimum the Court must then impose the mandatory minimum in accordance with the requirements of the Migration Act." 22Riley CJ in R v Dokeng (Supreme Court of the Northern Territory, unreported, 2 December 2010 ) also examined a case where the offending fell in the least serious end of the scale for offences of this nature. It was accepted that the offender was poor and paid 'a pittance' for his role. He played no role in organising the operation. The sentencing judge said: "Given the maximum penalty for the present offence; namely 20 years imprisonment, the circumstances of the offence, your own personal circumstances, and taking into account ordinary sentencing principles; namely the need for general deterrence, however effective or ineffective that may be, and the other usual sentencing principles, I would consider that the justice of this case required a sentence of considerably less than five years imprisonment. However, given the minimum fixed by the legislature, I have no choice but to impose a sentence of at least 5 years imprisonment with a non-parole period of at least 3 years. It would be plainly unjust in your case to impose more than the minimum."

Consideration 23It is difficult to see what meaning should be given to the word 'mandatory' specifically inserted into the legislation other than that no sentencing discretion is contemplated by the mandatory provisions of the Parliament to impose a sentence below the minimum of three years imprisonment. I am clearly bound to apply the clear and customary intention the word 'mandatory' in the Migration Act. How a sentence can be reduced below that and still be consistent with the legislation is unclear to me - nor how judicial sentencing discretion can be exercised to reach any different minimum penalty. It is difficult to see how that mandatory minimum requirement can be reconciled with the duty imposed by the Crimes Act to deliver a sentence which is 'of a severity appropriate in all the circumstances of the offence': section 16A(2) Crimes Act (Cth) 1914. 24What value there is in having judges determine matters when there is a pre-determined legislatively imposed mandatory minimum penalty is for others to determine. I agree with respect with the comments of Mildren J of the Northern Territory Supreme Court in Trenerry v Bradley referred to by Kelly J in R v Dokeng that '...prescribed minimum mandatory sentencing provisions are the very antithesis of just sentencing.' Nevertheless, I am obliged to follow the law as it is. In this case, given the structure of the legislation and the provisions of section 16A of the Crimes Act , the appropriate sentence is the minimum contemplated in the legislation, namely, one of three years imprisonment.

Specific aspects of the offender's criminality 25Although there is no evidence nor suggestion that the offender was involved in any of the other more substantial aspects of 'organisation and facilitation' as is referred to in the section, his was a fundamental role at the last stage of the overall people smuggling operation. Given the jury's verdict on the evidence, it clearly involved the facilitation of the unlawful citizens journey towards Australia at the most dangerous part of the trip. That included travelling on the open seas in a vessel which had - at least - some mechanical problems. His travel to the ship-yard or marina where he joined the vessel he ultimately navigated indicates a degree of planning and premeditation. I do not accept the submission that he was unaware of what he was doing until 'the very last moment' - Defence submissions: [3]. The submission that he had no responsibility for organising the trip - Defence submissions [9] - are inconsistent, for example, with his role in organising his nephew to be on the vessel. 26The vessel was ultimately destroyed in accordance with the RAN / quarantine procedures. This practice of incinerating the vessels is presumably well known to those involved in the people smuggling trade. It is unsurprising then that cheap or older vessels with limited navigational and safety equipment are used for this portion of the journey on the open sea. Few of the passengers were wearing life-jackets. There was no evidence in the photographs tendered during the trial of life-rafts sufficient to accommodate those numbers of adults and children who were present on the open seas.

Failure of provide safe arrangements 27Obviously those kind of arrangements increase the danger to those travelling in precisely the sort of vessels of which the accused was in charge. That danger, in turn, is something which the unlawful non-citizens, as well as those in the position of the offender, are prepared to accept in the (often desperate) circumstances they were in as outlined in the statements tendered during the trial. A subsidiary aspect of the policy in this legislation is to prevent travel in such dangerous conditions. Failure to comply with those requirements inevitably involves risk to those travelling who (and whose children) are capable of being exploited precisely because of their desperation. The deadly consequences of those risks has already been evident in events occurring in the waters surrounding Christmas Island earlier this year. That is in addition to other risks run when, for example, food and water run out or an ill-equipped vessel is blown off-course.

Subjective circumstances 28The offender is aged 46. He is an unemployed fisherman from Sulawesi in Indonesia. He has been unemployed for three years. His evidence was that he is illiterate and has received minimal education. He was married - although he may have been separated from his wife at the time of undertaking this trip. His evidence was that the funds he received for the journey were used to pay for his only daughter's education. He is very close to that daughter. There is no evidence to suggest any other criminal involvement. 29Given those factors, his isolation and his inability to communicate in English, a sentence of full-time imprisonment will weigh heavily on him.

Deterrence 30The penalties provided under the legislation provide a maximum penalty of 20 years imprisonment, a mandatory period of imprisonment of 5 years and a mandatory non-parole period of 3 years. Clearly, that reflects a specific intention by Parliament to ensure that the principle of general deterrence is reflected in the sentences imposed. The deterrence is necessarily visited on those at the bottom or final stage of the chain of organisational stages involved in people smuggling offences. In this case the financial and other circumstances of the offender were of the same order of desperation of those whose travel he was facilitating. The courts in cases of other offenders have referred to the 'pittance' being paid to offenders at the same stage of the overall offences. 31The policy of general deterrence needs to be considered in the context of illiterate and poor fishermen from remote islands of the Indonesian archipelago where there is no electricity, no television and no radio.

Cost to the State justice system and the Commonwealth 32The administrative and legal arrangements which are in force in relation to this issue, involve significant Commonwealth expenses, not only in terms of the RAN coverage of the relevant territorial waters but also the off-loading and processing of unlawful non-citizens, their accommodation in the various detention centres and the interviewing and identification procedures which are adopted under Australian law. Those costs are in addition to the demands on the justice system including the Courts throughout Australia, the DPP, the AFP and the Immigration Department as well as legal aid for the accused. That is in addition to the costs of, and demands placed on, witnesses including police, naval officers, translators as well as those passengers on the SIEV vessels who are usually in detention and need to be brought to court. 33Again I reiterate and endorse the comments made by Judge Conlon in R v Karim (District Court of New South Wales, unreported, July 2011) and others that there is no incentive at all for pleas to be entered and the costs and expenses of such trials given the way the legislation is drafted. Indeed, R v Dokeng was a sentence which was delivered in the context of a plea of guilty at the first available opportunity. The enormous costs to the State justice systems and Commonwealth agencies flows directly from the way the legislation has been drafted and remains in place.

Proportionality 34Those costs are of course in addition to the costs of imprisonment of an offender for the term contemplated by the mandatory provisions of the Act. The published daily costs of imprisonment for an offender in the NSW correctional system are of the order of $200. That is the amount Mr Ambo was to receive for his involvement in this activity - he was found on the vessel with A$217 which is what he said he received. That is apparently of the same order of payment to others similarly sentenced. He will now be in prison for three years.

Sentencing options 35I do not consider that this is an appropriate case for a recognizance release order as provided in 19AB of the Crimes Act .

Commencement date 36The offender has been in detention and in custody since his apprehension on 8 February 2011. In my view, his sentence should commence with effect from that date.

Parole 37It is clear that the offender will be deported immediately upon completion of his custodial term of imprisonment. Nevertheless, in accordance with section 19AK of the Crimes Act , the Court is not precluded from fixing a non-parole period in respect to the offence.

Sentence 38On the evidence presented to me and the matters I have outlined, I see no reason why I should - nor can - depart from the sentence set out, namely, one of 5 years imprisonment, to be served by way of a non-parole period of 3 years imprisonment, backdated to commence on 8 February 2011 and to expire on 7 February 2014.

Forfeiture order 39The Commonwealth has sought a forfeiture order in relation to the monies found on the boat and the offender. I make an order in relation to the Riyals found - which clearly related to the passengers - but not in relation to the Indonesian rupiahs found on the offender. I am not satisfied that it has been shown that those monies were part of the proceeds of crime. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 November 2011