_R v Karabi_

[1]

Director of Public Prosecutions (Cth) for the respondent

[2]

[1] MUIR JA: Introduction The applicant pleaded guilty to an offence under s 232A(1)[1] of the Migration Act 1958 (Cth) ("the Act") of facilitating the bringing to Australia of a group of five or more people who were non-citizens and travelled to Australia without visas that were in effect and doing so reckless as to whether those people had a lawful right to come to Australia. He was sentenced in the Supreme Court on 19 August 2011 to six and a half years imprisonment with a non-parole period of four years. Six hundred and two days spent in pre-sentence custody were declared to be imprisonment already served under the sentence.

[3]

[2] The applicant seeks leave to appeal against the sentence on the grounds that it was manifestly excessive and on the further grounds, added by leave, that the sentencing judge erred:

[4]

(a) in treating the commercial aspects of the applicant's conduct as an aggravating factor;

[5]

(b) in treating the applicant's involvement of his son in the voyage as a serious aggravating factor;

[6]

(c) in treating the applicant's pre-departure involvement as a serious aggravating factor;

[7]

(d) in holding that deterrence was a more significant factor in the applicant's case than in comparable cases; and

[8]

(e) by giving too much weight to the matters identified in (a) - (d) above.

[9]

[3] The following facts were contained in an agreed statement of facts before the sentencing judge. The applicant is a 47 year old Indonesian fisherman educated to grade 12. He is married with eight children.

[10]

[4] The applicant has relevant prior convictions. He was convicted on 25 August 2000 of facilitating the bringing into Australia of a group of five or more non-citizens and sentenced to two years and eight months imprisonment. On 6 June 2003, he was sentenced to using a foreign boat for commercial fishing and fined $10,000. On 5 January 1996, he was convicted of using a foreign boat for commercial fishing and placed on a three year good behaviour bond.

[11]

[5] The six passengers on the boat, the captain of which was the applicant, had all paid amounts between US$7,000 and US$10,000 for their passage from Indonesia to Australia. They had been flown to a location near the place of embarkation of the vessel shortly prior to its departure. There were three crew members, including the applicant's 16 year old son. The boat, which was constructed of wood and powered by an engine, was approximately 12 metres long and two metres wide. It was generally seaworthy, although it had a very low freeboard[2] that would make it unsuitable "in any significant sea". There were six life jackets on board.

[12]

• he had debts as a result of his previous fishing offences in Australia and was afraid of his creditors because he could not pay them;

[13]

• he knew Hussain [the organiser of the venture] who had told him that he was buying a boat to bring people to Australia;

[14]

• he asked Hussain if he could go as he wanted to claim asylum in Australia as a refugee;

[15]

• he could not pay Hussain and agreed to offer his experience gained as a fisherman and from his previous trips to Australia;

[16]

• the passengers said that they did not have travel documents or passports; and

[17]

• his purpose in making the trip was "to get away from persecution".

[18]

[7] After the vessel was intercepted, the applicant was detained initially at the Christmas Island detention centre where he made a protection claim. Upon assessment he was found not to satisfy the requirements for protection.

[19]

[8] The sentencing judge referred to the prosecution's submissions that a head sentence of seven years with a non-parole period of four years and two months was appropriate bearing in mind the comparable sentences on which the prosecutor had placed reliance. Mention was made of defence counsel's submission that an appropriate sentence was the statutory minimum sentence of five years with a non-parole period of at least three years. Her Honour observed:

[20]

"The comparatives that have been referred to are of assistance. However, none are entirely apposite. While only six passengers were involved in your offending, deterrence nevertheless features as a very significant consideration in sentencing for this offence.

[21]

Moreover, there are a number of serious aspects to your offending, including that in addition to your role as captain, it seems from the statement of facts that your involvement included assisting in relation to aspects prior to the passengers boarding the vessel. You also involved your 16 year old son as a crew member. In addition to fishing offences in Australia, you have a prior conviction for people smuggling."

[22]

The applicant's arguments in respect of the further grounds

[23]

[9] The arguments advanced by counsel for the applicant in respect of further grounds (a) to (e) inclusive may be summarised as follows.

[24]

[10] The commercial aspects of the applicant's conduct should not have been treated as an aggravating factor. His engagement as master of the vessel was comparable to the conduct of the passengers who paid for passage for the purpose of seeking asylum. The applicant agreed to be the master of the vessel without payment in order to seek asylum and to escape from creditors who were actively pursuing him and threatening his life.

[25]

[11] The applicant and his wife had agreed that their son should accompany the applicant and help crew the boat. Although it was acknowledged on behalf of the applicant that bringing his son along as a crew member was a point of contrast between the applicant's case and offenders who play no part in organising the crew, the acknowledgement was made in the context of the son being involved merely to accompany the applicant and help crew the boat. There was no concession that the matter should be treated as a significant circumstance of aggravation.

[26]

[12] Neither the prosecution nor defence counsel made submissions about the significance of the applicant's involvement prior to departure of the vessel. There was no basis for a finding that the agreed level of pre-departure contact with passengers was a serious aspect of the offending.

[27]

[13] Although the applicant was not a first offender, his motives for committing the offence were different from those of offenders in the comparable cases relied on by the prosecution. The likelihood of his reoffending should have been considered to be low by comparison. Also, the number of passengers and the applicant's motives for transporting them made this case less serious than many of the comparable cases relied on by the prosecution. Deterrence in this case, because of such considerations, was of less significance than in such comparable cases.

[28]

The applicant's argument on the manifestly excessive ground

[29]

[14] As the sentence imposed "greatly exceeds many of the sentences imposed for offenders who had at least one relevant prior conviction and who transported far greater numbers of passengers for purely financial reasons" the sentencing judge must have given excessive weight to the applicant's criminal history. She treated deterrence as "a very significant consideration" and in so doing, failed to give due consideration to the evidence of the applicant's motives and to the unlikelihood that he would re-offend.

[30]

[15] I propose to deal with the grounds of appeal in the order in which they were addressed by counsel for the applicant.

[31]

[16] In dealing with a submission by the prosecution that the motive for the commission of the offence was financial reward and that the sentencing judge should be sceptical of the account given by the applicant, the sentencing judge said:

[32]

"There is no evidence that you were paid for your services and I am unable to conclude that your motivation was other than wishing to escape those creditors who were pursuing you. It was clearly misguided of you to think it an appropriate basis to claim asylum.

[33]

There was, however, some financial benefit, as accepted by counsel on your behalf, in that you were not required to pay for passage, but rather performed the services of being a master of the vessel in lieu."

[34]

[17] The sentencing judge did not treat the financial benefit to which she adverted as an aggravating factor. She merely mentioned it as a relevant fact, as indeed it was. The applicant did not receive a cash benefit for his services but he was offered and accepted free passage on the vessel in circumstances in which the passengers had paid dearly for their passage. Unlike the passengers, he played an active and indeed leading role in facilitating the bringing to Australia of the six passengers.

[35]

[18] The sentencing judge did treat the involvement by the applicant of his son as one of the "serious aspects" of his offending. In so doing, the sentencing judge was not purporting to rank the seriousness of this matter in comparison with other matters she mentioned, such as the applicant's role as captain and his previous offences. She merely identified the matter under consideration as one of a number of "serious aspects" of the offending and was right to do so. At best for the applicant, he recruited his son as a crew member thus facilitating the unlawful venture. However, I would not be disposed to attach too much significance to the age of the son or the familial relationship for present purposes. It is likely that the son customarily accompanied his father on fishing voyages. There is no evidence that the son was exposed to abnormal hazards by the subject voyage and, because of his age, he was repatriated to Indonesia by the authorities.

[36]

[19] The agreed facts disclose that the applicant visited the passengers in the house in which they were staying near the embarkation area on the day before their departure and advised them that they would be departing the next day. Passengers saw him talking on his mobile phone and signalling by means of a light from the phone to the vessel which subsequently approached the beach to effect embarkation. The applicant's role in the organisation of the venture, although limited, went beyond serving as master of the vessel. The sentencing judge was justified in treating these matters as serious aspects of the applicant's offending. Again, she did not purport to grade this conduct in relation to other aspects of the applicant's conduct and I would not regard it as of great significance in the scheme of things.

[37]

[20] The sentencing judge's observation that "deterrence nevertheless features as a very significant consideration in sentencing for this offence" did no more than echo similar statements in previous decisions. Counsel for the applicant did not take issue with the proposition that general deterrence is an important consideration in offences of the subject kind.

[38]

[21] The role of general deterrence in cases of this kind cannot be doubted. People trafficking: threatens the orderly administration of immigration laws; imposes a financial burden on the Australian public; necessitates the deployment of military, customs and other governmental resources; encourages official corruption in other nations and exploits and imperils the health and lives of those carried, or attempted to be carried, into Australia. The seriousness with which the Parliament regards such conduct is apparent from the maximum and minimum penalties provided for by s 233C of the Act.[3]

[39]

[22] It was argued that the absence of a financial motive for the applicant's offending meant that personal deterrence was not a relevant sentencing consideration. Even if that proposition had some merit, the applicant's prior offending demonstrated that personal deterrence was a relevant consideration.

[40]

[23] The subject observation said nothing about the seriousness of the applicant's offending conduct in comparison with the conduct of offenders in the cases to which the sentencing judge was referred to by the applicant and respondent. Having regard to the differing circumstances of the offenders and offending conduct in the comparable decisions relied on by the applicant and the respondent at first instance, it is impossible to conclude that the sentence imposed on the applicant was the product of over emphasis on deterrence.

[41]

[24] The claim that the applicant's sentence was manifestly excessive was supported by two propositions. The first was the proposition just rejected: that the sentencing judge must have placed undue emphasis on deterrence. The other ground, which seemed to be related, was based on a comparison of the applicant's offending conduct with that in R v Santoso, Wawan & Bin Seneman[4] and R v Min, Suryanto & Salas.[5] It was submitted that the subject sentence was out of step with the lesser sentences imposed on those offenders despite those offenders having carried far greater numbers of passengers for purely financial reasons.

[42]

[25] The offender in Min was 50 years of age and married with five children when sentenced in February 2011 to five years imprisonment with a non-parole period of three years. He was an impoverished fisherman who, together with the other three crew members, was paid IDR 3,000,000[6] for conveying 173 passengers to Australia. Despite the absence of formal qualifications and experience as a captain of a boat, he assumed that role but was not involved in the organisation of the crew and received no additional financial benefit. In 1998 he had been sentenced to eight months imprisonment in the District Court of Western Australia for a similar offence.

[43]

[26] Santoso was sentenced in January 2011 to five years and six months imprisonment with a non-parole period of three years. He was a 33 year old fisherman and married with two young children. He was the captain of a vessel which carried 50 passengers to Australia. His remuneration for the journey was a fee of IDR 5,000,000 plus an interest in the vessel, valued at about IDR 3,000,000, after completion of the journey. Santoso was also given an additional IDR 2,000,000 to use to bribe officials and had received "special training for the job in the days leading up to the commencement of the voyage". He had been detained in Australian waters in 2006 while on a fishing expedition.

[44]

[27] Counsel for the respondent relied on R v Wetangky;[7] R v Idrus & Ahmad;[8] and R v Djoni.[9]

[45]

[28] Wetangky was a 57 year old unemployed fisherman who accepted a payment of IDR 15,000,000 to be the captain of a vessel which would bring 78 passengers without valid visas into Australia. He was married with six children. He had been sentenced to terms of imprisonment in 1998 and 2000 for similar offences. The sentence imposed in 2000 was one of four years with a non-parole period of two years.

[46]

[29] Wetangky was sentenced to seven years imprisonment with a non-parole period of four years and six months.

[47]

[30] There were 53 passengers without valid visas on the vessel crewed by Idrus and Ahmad, who were each convicted on 11 December 2009 and sentenced to six years imprisonment with a non-parole period of four years. The vessel was taking on water when intercepted. There were no life jackets or safety equipment on board. Ahmad had been convicted on 28 April 2000 of an offence against s 232A of the Act. Idrus had been convicted of an offence against s 233(1)(a) of the Act on 12 July 1999.

[48]

[31] Djoni, who was sentenced to six and a half years imprisonment with a non-parole period of four years, was the captain of a vessel which when intercepted was carrying 49 people without valid visas. The other two members of the crew were Indonesian minors. There were life jackets for the passengers but not for crew members. Djoni, a 51 year old subsistence fisherman, was promised AUD $2,000 for his services, but only received AUD $750. That was confiscated. He understood that he would be gaoled if apprehended. He had previously been sentenced on 30 March 2001 to four years imprisonment by a Northern Territory court for a similar offence.

[49]

[32] The decisions relied on by the respondent (which all concerned sentences imposed after guilty pleas; as did the decisions relied on by the applicant) support the sentence imposed on the applicant.

[50]

[33] The sentences imposed in Min, Santoso and Wetangky were all arrived at by an approach which the respondent submits was wrong in principle. The approach involved determining the appropriate sentence for the subject offence, without reference to the mandatory minimum sentence required by s 233C of the Act, by applying general sentencing principles and, in particular, those required to be applied by s 16A(1) of the Crimes Act. Where this process resulted in a sentence less than the statutory minimum the statutory minimum sentence would be imposed. That approach to sentencing was not criticised at first instance and was applied by the sentencing judge.

[51]

[34] The Court of Appeal in Western Australia in Bahar v The Queen[10] held the approach to be erroneous. The relevant reasoning of McLure P (Martin CJ and Mazza J agreeing) is encapsulated in the following passage from her reasons:

[52]

"The statutory language makes it unequivocally clear that the Commonwealth Parliament intended to deprive a judicial officer sentencing an offender for a breach of s 232A of both the power to impose a non-custodial sentence and the power to impose a sentence of less than 5 years. Thus, s 233C is positively inconsistent with s 17A of the Crimes Act which requires that consideration be given to different types of sentence. However, the later, specific provision (s 233C) must prevail.

[53]

Otherwise, there is no positive inconsistency in terms between s 233C and the general sentencing principles in the Crimes Act as supplemented by common law principles. In particular, the sentencing principles are intentionally framed at a level of generality for application within the boundaries of power established not only by the maximum statutory penalty but also the minimum statutory penalty. The statutory maximum and minimum also dictate the seriousness of the offence for the purpose of s 16A(1). It would be positively inconsistent with the statutory scheme for a sentencing judge to make his or her own assessment as to the 'just and appropriate' sentence ignoring the mandatory minimum or mandatory maximum penalty and then to impose something other than a 'just and appropriate' sentence (whether as to type or length) in order to bring it up to the statutory minimum or down to the statutory maximum, as the case may be. The statutory minimum and statutory maximum penalties are the floor and ceiling respectively within which the sentencing judge has a sentencing discretion to which the general sentencing principles are to be applied.

[54]

The suggestion by the Crown to the sentencing judge that the mandatory minimum is for a low level offence in which all mitigating factors are present reflects a lack of understanding of the sentencing process. First, the minimum penalty is for offences within the least serious category of offending and the maximum penalty is for offences within the worst category of offending. I emphasise 'category' of offending. There is no single instance at either extreme. Secondly, whether an offence falls within the least serious category is to be determined by reference to all relevant sentencing considerations, including matters personal to the offender. As I have explained above, a sentencing outcome (the 'bottom line') is not dictated by the presence or absence of one or more mitigating factors."[11]

[55]

[35] Counsel for the applicant did not submit that the approach to sentencing articulated in Bahar was wrong. This Court is obliged to follow the decision of another intermediate appellate court unless persuaded that it is plainly wrong.[12] In my respectful opinion, the relevant statements of principle in Bahar are correct.

[56]

[36] This Court was not invited by the applicant or the respondent to set aside the sentence under consideration on the basis that the exercise of the sentencing discretion miscarried. Counsel for the applicant submitted, correctly, that to the extent that the effect, if any, of such an error would have favoured the applicant.

[57]

[37] It was common ground that the erroneous sentencing approach taken in Santoso, Min and Wetangky was likely to result in a more lenient sentence than would have been imposed had correct principles been applied. Even so, a sentence of seven years with a non-parole period of four years and six months was imposed on Wetangky. Wetangky's offending and circumstances were similar in many respects to those of the applicant. Both captained a vessel and had an involvement in their respective operations which went a little beyond the fulfilment of a captain's role. Their ages were similar. Both were impoverished fishermen. Wetangky had two previous convictions for similar offences. The applicant had one such conviction and two other convictions which had some relevance. Wetangky was to be paid about AUD $1,600, but the applicant could be said to have avoided having to pay a fare of between $7,000 and $10,000. The main point of distinction between the two offenders is that Wetangky's vessel carried many more passengers. It may be the case also that the applicant was experiencing even greater financial pressures than Wetangky. He appeared to see no way of clearing his debts and was afraid of his creditors.

[58]

[38] The sentences imposed in the other decisions relied on by the respondent also support the subject sentence. The applicant embarked on his illegal activities with his eyes open. He had a previous conviction for a similar offence and was the captain of the vessel with an additional minor organisational role. The relatively small number of passengers on his vessel is the most distinguishing feature of his offending. Nevertheless, I am unable to conclude that the applicant's conduct falls within the least serious category of offending warranting the imposition of the mandatory minimum sentence. The applicant has failed to demonstrate appellable error on the part of the sentencing judge or that the subject sentence was manifestly excessive.

[59]

[39] Accordingly, I would order that the application for leave to appeal against sentence be refused.

[60]

[40] FRASER JA: I agree with the reasons for judgment of Muir JA and the order proposed by his Honour.

[61]

[41] CHESTERMAN JA: I agree with the order proposed by Muir JA for the reasons given by his Honour.

[62]

[1] Now encompassed within s 233C - Aggravated offence of people smuggling (at least 5 people).

[63]

[2] The height of the vessel's deck above water.

[64]

[4] (Riley CJ, NTSC, 18 January 2011, sentencing remarks).

[65]

[5] (Blokland J, NTSC, 18 February 2011, sentencing remarks).

[66]

[6] Roughly AUD $316 at an exchange rate of AUD $1 = IDR 9,500.

[67]

[7] (Riley CJ, NTSC, 18 January 2010, sentencing remarks).

[68]

[8] (Deans DCJ, WA District Court, 11 December 2009, unreported).

[69]

[9] (McMann DCJ, WA District Court, 17 December 2010, unreported).

[70]

[10] [2011] WASCA 249.

[71]

[12] Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485 at 492.

At a glance

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Decision date

Before

Catchwords

Source

Catchwords

Judgment (71 paragraphs)

Parties

Cases Cited (2)