Citation: R v AMBO [2011] NSWDC 182
Court: District Court of New South Wales
Date: 25 November 2011
Judge(s): Knox SC DCJ
Background
The offender was convicted by jury on 30 September 2011 of facilitating the bringing of a group of 53 or more non-citizens to Australia without lawful right to enter, contrary to section 233C of the Migration Act 1958 (Cth). The offence occurred between approximately 5 and 8 February 2011 in waters between Indonesia and Christmas Island. The jury found the offender acted recklessly as to whether those persons had a lawful right to come to Australia.
The offender was recruited through an informal approach in Indonesia and paid approximately A$217 to crew the vessel. He was found on board when a Royal Australian Navy boarding party from HMAS Maitland intercepted the Suspected Illegal Entry Vessel (SIEV) carrying 55 persons, two of whom were crew. The 53 passengers had each paid between A$8,000 and A$10,000 to organisers in Iran or Iraq to facilitate their journey.
The central question at the sentencing hearing was how the mandatory minimum sentencing provisions of the Migration Act applied to an offender whose role, while significant, was at the lower end of a sophisticated multi-country smuggling operation.
Legal Issues
- Whether the mandatory minimum sentence of 5 years imprisonment with a non-parole period of 3 years under section 236B of the Migration Act applied, and whether any discretion existed to depart from it
- How to assess the offender's role and culpability within a larger people smuggling organisation
- Whether the offender's limited financial gain, personal circumstances, or any other mitigating factors could affect the sentence
- Whether a recognizance release order under section 19AB of the Crimes Act 1914 (Cth) was appropriate
- Whether a forfeiture order over monies found on the vessel and on the offender should be made
Decision
Knox SC DCJ found that the offender's role was that of the person in charge of the vessel. He navigated the boat, organised welfare for the passengers during the roughly 60-hour voyage, and deliberately threw GPS and phone equipment overboard immediately before the navy boarded. That last act, the court found, was explicable only as evidence of his awareness of the criminality of his conduct.
The court acknowledged the offender entered the operation only at its final stages and was paid a relatively trivial sum. However, it noted that section 236B of the Migration Act imposed a mandatory minimum of 5 years imprisonment and a minimum non-parole period of 3 years, and the court found no basis to depart from those figures. The court observed candidly that the mandatory provisions created an anomalous situation: an offender's role, which ordinarily operates in mitigation, had no practical effect where the legislated floor already determined the outcome.
Knox SC DCJ also remarked on what the court described as a proportionality concern: the daily cost of imprisoning the offender in the NSW correctional system was approximately equal to the total payment he received for his involvement. The court noted this observation without it altering the sentence, and commented that the mandatory minimum structure removed any incentive for an accused to enter a guilty plea, generating significant cost to the justice system.
A recognizance release order was not considered appropriate. Because the offender would be deported on release, the court nonetheless fixed a non-parole period under section 19AK of the Crimes Act, which provides that deportation does not prevent the court from doing so.
Orders Made
- Sentence of 5 years imprisonment, with a non-parole period of 3 years, backdated to commence 8 February 2011 and to expire 7 February 2014
- Forfeiture order made in relation to the Riyals found on the vessel (linked to the passengers), but not in relation to Indonesian Rupiah found on the offender, as the court was not satisfied those funds were proceeds of crime
Key Takeaways
- Under section 236B of the Migration Act 1958 (Cth), a court sentencing for an aggravated people smuggling offence under section 233C has no discretion to impose less than 5 years imprisonment and a 3-year non-parole period, regardless of an offender's minor role or limited financial gain.
- A defendant's position within a people smuggling hierarchy, which would ordinarily operate as a mitigating factor in sentencing, carries no practical weight where the mandatory minimum already sets the sentence outcome.
- The District Court observed that the mandatory minimum structure removes any incentive for accused persons to plead guilty, imposing substantial costs on Commonwealth and state justice systems, and the court referenced similar observations made in R v Karim and other decisions.
- Deportation upon release does not prevent a sentencing court from fixing a non-parole period, pursuant to section 19AK of the Crimes Act 1914 (Cth).
- Forfeiture of monies found on or near an offender requires satisfaction that the funds constitute proceeds of crime; the court declined to forfeit the offender's own earnings in the absence of that satisfaction.
Legislation and Cases Referenced
Legislation
- Migration Act 1958 (Cth), ss 233C, 236B
- Crimes Act 1914 (Cth), ss 16A, 19AB, 19AK
Cases
- R v Olbrich [1999] HCA 54
- Tyler v R; R v Chalmers [2007] NSWCCA 247
- R v Muanchukingkan (1990) 52 A Crim R 354
- Bahar & Ors v The Queen [2011] WASCA 249
- Wong v R (2001) 207 CLR 586
- R v Pot, Wetangky and Lande (Supreme Court of the Northern Territory, unreported, 18 January 2011)
- R v Sailing & Maley (Supreme Court of the Northern Territory, unreported, 11 February 2011)
- R v Dokeng (Supreme Court of the Northern Territory, unreported, 2 December 2010)
- Trenerry v Bradley (Supreme Court of the Northern Territory, unreported, referred to in R v Dokeng)
- R v Karim (District Court of New South Wales, unreported, July 2011)