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District Court 7 April 2020

R v Karimi Azar

[2020] NSWDC 265

Other
CRIMINAL SENTENCE PEOPLE SMUGGLING CHARGES IN RE 20 PASSENGERS LIMITED SUBJECTIVE MATERIAL

Citation: R v Karimi Azar [2020] NSWDC 265
Court: District Court of New South Wales
Date: 7 April 2020
Judge(s): King SC DCJ

Background

The offender, an Iranian national, was alleged to have operated as the principal organiser of a people-smuggling syndicate based predominantly in Jakarta, Indonesia. Between 2011 and 2013, he coordinated the unlawful maritime passage of non-citizens to Australia aboard Suspected Illegal Entry Vessels (SIEVs), using email, Facebook, and telecommunications services, as well as face-to-face meetings with a network of subordinate agents including family members.

The offender was arrested in Indonesia in October 2014 and extradited to Australia in September 2016. He was committed for trial on 43 charges, and after protracted pre-trial proceedings, he entered guilty pleas on 19 July 2019 to two counts under s 233C of the Migration Act 1958 (Cth), which criminalises facilitating the entry of groups of five or more unlawful non-citizens. He also asked the court to take two further offences under s 233A into account on a Form 16BA (a formal mechanism under the Crimes Act 1914 (Cth) by which an offender asks the court to consider additional offences at sentencing without separate conviction).

The agreed facts described a sophisticated operation: passengers were recruited in Iran, charged thousands of US dollars per person, transported to Jakarta, accommodated by the syndicate, and placed on vessels bound for Christmas Island. The two counts on the indictment related to separate time periods and collectively involved at least 20 passengers across multiple SIEVs.

  • What was the appropriate characterisation of the offender's role within the smuggling syndicate, and how did that role affect the objective seriousness of the offences?
  • How should the statutory minimum sentencing provisions under the Migration Act 1958 apply to a first and second offence under s 233C?
  • What weight should be given to the guilty plea, given its timing and the absence of remorse or contrition?
  • What subjective factors, including the offender's personal circumstances, prospects of rehabilitation, and time spent in pre-sentence custody, were relevant to the sentence?
  • How should the two counts be structured as an aggregate sentence to avoid double-counting while reflecting the totality of the offending?

Decision

King SC DCJ found that the offender occupied the highest level of culpability, acting as the primary organiser and "principal" of the syndicate rather than as a crew member, boat captain, or mere facilitator. His Honour drew on sentencing principles established in cases dealing with people-smuggling, including the need for general deterrence and denunciation, and noted that organiser-level offending attracts significantly greater punishment than offending at lower levels of the operation.

The court acknowledged limited subjective material was available. The offender provided little information about his personal background, and his Honour found it difficult to assess his prospects of rehabilitation. Critically, the offender expressed no remorse or contrition, which diminished the weight ordinarily given to a guilty plea. Some discount was nonetheless applied to reflect the utilitarian value of the plea in avoiding a lengthy and complex trial involving up to 60 passenger witnesses.

His Honour noted the statutory mandatory minimum sentences: five years' imprisonment with a three-year non-parole period for a first s 233C offence, and eight years with a five-year non-parole period for a second. The court sentenced the offender on the basis that the first count was the "first offence" and the second count was the "second offence" attracting the higher mandatory minimum. The two further matters on the Form 16BA were taken into account as part of the overall sentencing exercise.

The court imposed an aggregate sentence to reflect the totality of the offending without double-counting the overlapping conduct across the two counts. His Honour fixed a non-parole period of eight years and a total term of 12 years, with a parole release date of 27 October 2022 (accounting for time already served in custody since extradition). The court noted an expectation that the offender would be deported upon completing his non-parole period, rendering any discussion of conditions for breach of parole largely academic.

Orders Made

  • Count 1 (s 233C, first offence): sentenced as part of an aggregate term.
  • Count 2 (s 233C, second offence): sentenced as part of an aggregate term.
  • Aggregate sentence of 12 years' imprisonment imposed.
  • Non-parole period of 8 years fixed, commencing 27 October 2014 (date of arrest in Indonesia).
  • Earliest release date on parole: 27 October 2022.
  • Balance of term (parole period): 4 years, expiring 27 October 2026.
  • Two additional offences under s 233A taken into account pursuant to Form 16BA.

Key Takeaways

  • The District Court confirmed that an offender who acts as the principal organiser of a people-smuggling syndicate, rather than in a subordinate operational role, occupies the highest level of objective seriousness and that this distinction carries significant sentencing consequences under the Migration Act 1958.
  • Under s 233C of the Migration Act 1958, the statutory mandatory minimums escalate between a first and second offence, from a minimum five-year term (three-year non-parole period) to a minimum eight-year term (five-year non-parole period), and those minima operate as a floor rather than a guide.
  • Absence of remorse or contrition reduces, but does not entirely eliminate, the sentencing discount available for a guilty plea, with the court still recognising the utilitarian benefit of avoiding a complex, witness-heavy trial.
  • Where an offender provides limited personal background information, a sentencing court will find it difficult to make positive findings about rehabilitation prospects, and that difficulty can weigh against a more lenient outcome.
  • An aggregate sentence structure is available to reflect the totality of closely related people-smuggling offences across multiple counts without punishing the offender twice for substantially overlapping conduct.

Legislation and Cases Referenced

Legislation
- Migration Act 1958 (Cth), ss 233A, 233C
- Crimes Act 1914 (Cth), s 16BA

Cases
- Cita v R; Lamaha v R [2001] WASCA 5
- Feng Lin (2001) NSWCCA 7
- R v Petersen [1984] WAR 329
- R v Udin Nursia and Ors (Supreme Court of the Northern Territory, Bailey J, 12 January 2000)
- Xiou v R [2018] NSWCCA 4