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Prosecution and Punishment of People Smugglers in Australia 2008-2011

Published online by Cambridge University Press:  24 January 2025

Andreas Schloenhardt  and
Charles Martin
Andreas Schloenhardt*
Affiliation:
The University of Queensland TC Beirne School of Law, Brisbane, Australia
Charles Martin
Affiliation:
The University of Queensland
*
a.schloenhardt@law.uq.edu.au
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Abstract

This article provides an analysis of people smuggling prosecutions in Australia from 2008 to 2011. Based on the available case law, the article develops a profile of ‘typical’ people smuggling offenders, examines sentencing trends, and analyses the role of smuggled migrants. The article concludes that current prosecutorial and sentencing practice have had no success in deterring people smuggling and develops a number of recommendations for law reform and policy change.

Type
Research Article
Information
Federal Law Review , Volume 40 , Issue 1 , March 2012 , pp. 111 - 140
Copyright
Copyright © 2012 The Australian National University

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Footnotes

The authors wish to thank the members of the UQ Migrant Smuggling Working Group for their feedback and friendship. For further information visit www.law.uq.edu.au/migrantsmuggling.

References

1 Emma Rodgers, Rudd Wants People Smugglers to ‘Rot in Hell’ (17 April 2009) ABC News Online <http://www.abc.net.au/news/stories/2009/04/17/2545748.htm>.

2 Formerly Migration Act 1958 (Cth) ss 232A–233C, as repealed by Anti-People Smuggling and Other Measures Act 2010 (Cth) sch 1 pt 1 item 8; now Migration Act 1958 (Cth) ss 233A–233E, 236B as inserted by Anti-People Smuggling and Other Measures Act 2010 (Cth) sch 1 pt 1 item 8.

3 Explanatory Memorandum, Anti-People Smuggling and Other Measures Bill 2010 (Cth) 1.

4 In researching this paper, 22 prosecutions brought in three jurisdictions (Western Australia, the Northern Territory and Queensland) involving 43 offenders were examined.

5 Australian Federal Police, People Smuggling, (28 March 2012) <http://www.afp.gov.au/policing/human-trafficking/people-smuggling.aspx>.

6 Lanai Vasek and Sean Parnell, ‘States Push for Smuggling Costs Relief', The Australian (Sydney), 10 December 2010, 5.

7 Australian Federal Police, ‘Alleged Crew Members Charged’ (Media Release, 25 January 2011) <http://www.afp.gov.au/media-centre/news/afp/2011/january/alleged-crew-members-charged.aspx>. In the period from June 2009 to March 2011 alone, 353 individuals were charged: Lanai Vasek, ‘Legal Aid for Crews Tops $4m', The Australian, (Sydney), 19 April 2011, 2.

8 Commonwealth Director of Public Prosecutions, ‘Annual Report 2008-09’ (22 October 2009) 72. ('CDPP 2008-09 Annual Report’).

9 Commonwealth Director of Public Prosecutions, ‘Annual Report 2009-10’ (22 October 2010) 60 ('CDPP 2009-10 Annual Report’).

10 Ben Packham, ‘States Struggle to Pay for Legal Costs of People Smuggling Cases', The Australian (online), 18 April 2011 <http://www.theaustralian.com.au/national-affairs/states-struggle-to-pay-for-legal-costs-of-peoplesmuggling-cases/story-fn59niix-1226041046996>.

11 Evidence to Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Canberra, 18 October 2011, 156 (Chris Craigie, Commonwealth Director of Public Prosecutions).

12 Christine Jackman, ‘Caught in the Net', The Weekend Australian Magazine (Sydney), 16 April 2011, 14.

13 Paul Maley, ‘DPP Says Cuts will Curb People-smuggler Prosecutions', The Australian, (Sydney) 17 May 2011, 7. The CDPP's overall budget has been cut from AUD 96 million in the 2010–11 financial year to AUD 89 million in 2011–12, and is expected to fall further to AUD 79 million by 2014–15.

14 Nicholas Perpitch, ‘Cuts to People Smuggling Cases, Prosecutions — The Federal Budget', The Australian (Sydney), 12 May 2011, 5.

15 Ibid.

16 Revised Explanatory Memorandum, Migration Legislation Amendment Bill (No 2) 1998 (Cth), outline, [9]. Fiona David, Human Smuggling and Trafficking (2000) 20.

17 Migration Act 1958 (Cth) s 233C, as inserted by Border Protection (Validation and Enforcement Powers) Act 2001 (Cth). The minimum penalty for repeat offenders is 8 years. The minimum non-parole period for first time offenders is 3 years, and 5 years for repeat offenders.

18 See also, Andreas, Schloenhardt, Migrant Smuggling: Illegal Migration and Organized Crime in Australia and the Asia Pacific Region (Martinus Nijhoff, 2003) 169–70Google Scholar.

19 Explanatory Memorandum, Anti-People Smuggling and Other Measures Bill 2010 (Cth) 1. The old offence of ‘organising bringing groups of [5 or more] non-citizens into Australia’ under s 232A, was repealed and replaced with a range of new offences including its equivalent, ‘the aggravated offence of people smuggling (at least 5 people)’ under s 233C. These amendments were intended to restructure the people smuggling offences in the Migration Act to provide greater clarity in the structure of the offences. The new ‘aggravated offence of people smuggling (at least 5 people)’ under s 233C is merely a remodelling of the old offence under s 232A. The elements of the offence were not changed.

20 Migration Act 1958 (Cth) ss 233B–233C (Aggravated offence of people smuggling (exploitation, or danger of death or serious harm etc); aggravated offence of people smuggling (at least 5 people).

21 Ibid s 233D.

22 Ibid s 236B.

23 Ibid s 228B.

24 Another organiser, Achmad Olong, was among the 43 offenders in the cases studied. His case is not summarised in the descriptive section of this paper, but was considered in analysing the trends emerging from the cases studied, and is mentioned in the analysis below.

25 Transcript of Proceedings, R v Ndolo (Unreported, District Court of Western Australia, 221/2009, O'Brien DCJ, 3 April 2009) 2–3.

26 Ibid 3; Commonwealth Director of Public Prosecutions, CDPP 2008–09 Annual Report, above n 8, 73.

27 Transcript of Proceedings, R v Ndolo (Unreported, District Court of Western Australia, 221/2009, O'Brien DCJ, 3 April 2009) 3; Commonwealth Director of Public Prosecutions, CDPP 2008-09 Annual Report, above n 8, 73.

28 Ibid 2.

29 Ibid 3–4.

30 Ibid.

31 Transcript of Proceedings, R v Tahir & Anor (Unreported, Supreme Court of the Northern Territory, SCC 20918263/20918261, Mildren J, 28 October 2009) 2–4.

32 Ibid 2.

33 Ibid.

34 Ibid.

35 There was some confusion about their ages, but bilateral wrist X-rays revealed that they were both about 19 years of age; ibid 3.

36 Ibid 4.

37 Inquest into the Death of Mohammed Hassan Ayubi, Muzafar Ali Sefarali, Mohammed Amen Zamen, Awar Nadar, Baquer Husani [2010] NTMC 014 [95]–[98].

38 Transcript of Proceedings, R v Tahir & Anor (Unreported, Supreme Court of the Northern Territory, SCC 20918263/20918261, Mildren J, 28 October 2009) 4.

39 Ibid 5.

40 Ibid.

41 Ibid.

42 Transcript of Proceedings, R v Pandu & Ors (Unreported, District Court of Western Australia, 95/2010, Eaton DCJ, 21 May 2010) 4.

43 Ibid 5.

44 Ibid.

45 Ibid 7.

46 Ibid 2.

47 Kia v The Queen [2011] WASCA 104 [4].

48 Ibid [17].

49 Transcript of Proceedings, R v Pandu & Ors (Unreported, District Court of Western Australia, 95/2010, Eaton DCJ, 21 May 2010) 8.

50 Kia v The Queen [2011] WASCA 104 [37].

51 Commonwealth Director of Public Prosecutions, ‘Crown's Submissions on Sentence', Submission in R v Pandu & Ors, 95/2010, 21 May 2010, [14]–[15].

52 Transcript of Proceedings, R v Pandu & Ors (Unreported, District Court of Western Australia, 95/2010, Eaton DCJ, 21 May 2010) 12–13.

53 Commonwealth Director of Public Prosecutions, ‘Crown's Submissions on Sentence', Submission in R v Pandu & Ors, 95/2010, 21 May 2010, [7]–[9].

54 Transcript of Proceedings, R v Pandu & Ors (Unreported, District Court of Western Australia, 95/2010, Eaton DCJ, 21 May 2010) 14–15.

55 Ibid 8.

56 Ibid 9–10.

57 Ibid 10–11.

58 Ibid 11.

59 Ibid 14.

60 Ibid 15.

61 Ibid 16.

62 Ibid.

63 Kia v The Queen [2011] WASCA 104, [1], [51]–[52].

64 Transcript of Proceedings, R v Suwandi (Unreported, Supreme Court of the Northern Territory, SCC 21037950, Riley CJ, 18 February 2011) 2, 3.

65 Ibid 3.

66 Ibid 2.

67 Ibid.

68 Ibid.

69 (Unreported, Supreme Court of the Northern Territory, Riley CJ, 18 January 2011).

70 Transcript of Proceedings, R v Suwandi (Unreported, Supreme Court of the Northern Territory, SCC 21037950, Riley CJ, 18 February 2011) 4.

71 Ibid 4–5.

72 Ibid 5.

73 Ibid 3.

74 Ibid 4.

75 Ibid.

76 Ibid 5.

77 Transcript of Proceedings, R v Ahmadi (Unreported, District Court of Western Australia, 12/2010, Stavrianou DCJ, 24 September 2010) 3779.

78 (Unreported, Supreme Court of the Northern Territory, Southwood J, 2 September 2008).

79 Transcript of Proceedings, R v Ahmadi (Unreported, District Court of Western Australia, 12/2010, Stavrianou DCJ, 24 September 2010) 3777.

80 Commonwealth Director of Public Prosecutions, CDPP 2009–10’ Annual Report, above n 9, 60.

81 Transcript of Proceedings, R v Ahmadi (Unreported, District Court of Western Australia, 12/2010, Stavrianou DCJ, 24 September 2010) 3778.

82 Ibid.

83 Ibid 3780.

84 Commonwealth Director of Public Prosecutions, CDPP 2009–10’ Annual Report, above n 9, 61.

85 Transcript of Proceedings, R v Ahmadi (Unreported, District Court of Western Australia, 12/2010, Stavrianou DCJ, 24 September 2010) 3771.

86 Commonwealth Director of Public Prosecutions, ‘Submissions on Sentence’ Submission in R v Ahmadi, 12/2010, 17 September 2010, [7], [21]–[23].

87 Ibid [2]–[3].

88 Transcript of Proceedings, R v Ahmadi (Unreported, District Court of Western Australia, 12/2010, Stavrianou DCJ, 24 September 2010) 3781–3.

89 Ibid 3778–9.

90 Ibid 3780.

91 Ibid 3783.

92 Ibid.

93 Ibid.

94 Ibid 3784.

95 Ibid 3784–5.

96 Ahmadi v The Queen (2011) 254 FLR 174.

97 The case summaries considered above are provided for illustrative purposes. The following analysis is based on the total sample of 22 prosecutions during the period studied.

98 See, eg, Nathalie Haymann, Submission No 4 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Anti-People Smuggling and Other Measures Bill 2010, April 2010, 2; Project Safecom Inc, Submission No 17 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Anti-People Smuggling and Other Measures Bill 2010, 16 April 2010, 8; Sue Hoffman, Submission No 25 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Anti-People Smuggling and Other Measures Bill 2010, 16 April 2010, 3, 6; Bassina Farbenblum et al, Migrant and Refugee Rights Project and International Refugee and Migration Law Project, University of NSW, Submission No 23 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Anti-People Smuggling and Other Measures Bill 2010, 16 April 2010, 24; Pamela Curr, Asylum Seeker Resource Centre, Submission No 12 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Anti-People Smuggling and Other Measures Bill 2010, 16 April 2010, 12–13. See also Michael, Grewcock, ‘“Scum of the Earth“? People-smuggling, Criminalisation and Refugees’ (2010) 19(3) Human Rights Defender 15Google Scholar; Lindsay Murdoch, ‘People-smuggling Laws Harsh on Poor Fishermen', The Sydney Morning Herald (online), 15 April 2010 <http://www.smh.com.au/national/peoplesmuggling-laws-harsh-on-poor-fishermen-20100404-rls5.html>; Christine Jackman, ‘Caught in the Net', The Weekend Australian Magazine (Sydney), 16 April 2011, 14.

99 Transcript of Proceedings, R v Pandu & Ors (Unreported, District Court of Western Australia, 95/2010, Eaton DCJ, 21 May 2010) 9.

100 See, eg, R v Dopong & Ors (Unreported, Supreme Court of the Northern Territory, Barr J, 25 January 2011); R v Santoso & Ors (Unreported, Supreme Court of the Northern Territory, Riley CJ, 18 January 2011); R v Hasanusi (Unreported, District Court of Western Australia, Fenbury DCJ, 21 April 2010); R v Pandu & Ors (Unreported, District Court of Western Australia, Eaton DCJ, 21 May 2010).

101 Transcript of Proceedings, R v Pandu & Ors (Unreported, District Court of Western Australia, 95/2010, Eaton DCJ, 21 May 2010) 15.

102 Transcript of Proceedings, R v Dopong & Ors (Unreported, Supreme Court of the Northern Territory, SCC 21041382/21041385/21041380, Barr J, 25 January 2011) 5.

103 Transcript of Proceedings, R v Hasanusi (Unreported, District Court of Western Australia, 1365/2009, Fenbury DCJ, 21 April 2010) 3.

104 Transcript of Proceedings, R v Santoso & Ors (Unreported, Supreme Court of the Northern Territory, SCC 21034360/21031843/21034363, Riley CJ, 18 January 2011) 3.

105 Ben Packham, ‘States Struggle to Pay for Legal Costs of People smuggling Cases', The Australian (online), 18 April 2011 <http://www.theaustralian.com.au/national-affairs/states-struggle-to-pay-for-legal-costs-of-peoplesmuggling-cases/story-fn59niix-1226041046996>; Lanai Vasek and Sean Parnell, ‘States push for smuggling costs relief', The Australian, 10 December 2010, 5.

106 See William, Spelman, ‘The Limited Importance of Prison Expansion’ in Alfred, Blumstein and Joel, Wallman (eds), The Crime Drop in America (Cambridge University Press, 2nd ed, 2006) 484Google Scholar, cited in David, Brown, ‘The Limited Benefit of Prison in Controlling Crime’ (2010) 22(1) Current Issues in Criminal Justice 137, 140–1Google Scholar.

107 (Unreported, Supreme Court of the Northern Territory, Riley CJ, 18 January 2011).

108 Transcript of Proceedings, R v Pot & Ors (Unreported, Supreme Court of the Northern Territory, SCC 21037929/21037928/21037930, Riley CJ, 18 January 2011) 4–6.

109 Ibid 4.

110 Ibid 5.

111 (Unreported, Supreme Court of the Northern Territory, Mildren J, 28 October 2009).

112 (Unreported, Supreme Court of the Northern Territory, Kelly J, 2 December 2010).

113 Transcript of Proceedings, R v Pot & Ors (Unreported, Supreme Court of the Northern Territory, SCC 21037929/21037928/21037930, Riley CJ, 18 January 2011) 5.

114 Ibid 5–6.

115 Ibid 6.

116 Bahar v The Queen (2011) 255 FLR 80.

117 Ibid 87 [29] (McLure P).

118 Ibid 91 [46] (McLure P).

119 Ibid 93 [56] (McLure P).

120 Ibid 92 [53] (McLure P).

121 Ibid 92 [54] (McLure P).

122 Transcript of Proceedings, R v Hamid (Unreported, District Court of Western Australia, 256/2009, Stevenson DCJ, 5 March 2009) 4–5.

123 See, eg, R v Ndolo (Unreported, District Court of Western Australia, O'Brien DCJ, 3 April 2009). But see R v Dopong & Ors (Unreported, Supreme Court of the Northern Territory, Barr J, 25 January 2011), where the unseaworthiness of the vessel used demonstrated the danger of the voyage was noted but was not taken into account as an aggravating factor.

124 Transcript of Proceedings, R v Pot & Ors (Unreported, Supreme Court of the Northern Territory, SCC 21037929/21037928/21037930, Riley CJ, 18 January 2011) 10.

125 Ilam v Dando (1999) 109 A Crim R 47, 49 [14] (McKechnie J).

126 See, eg, Commonwealth Director of Public Prosecutions, ‘Crown Submissions on Sentence', Submission in R v Hasanusi, 1365/2009, 21 April 2010, [16]–[19].

127 Transcript of Proceedings, R v Hasanusi (Unreported, District Court of Western Australia, 1365/2009, Fenbury DCJ, 21 April 2010) 2.

128 Ibid 4.

129 Transcript of Proceedings, R v Pandu & Ors (Unreported, District Court of Western Australia, 95/2010, Eaton DCJ, 21 May 2010) 15.

130 Ibid 16.

131 See, eg, Transcript of Proceedings, R v Dokeng (Unreported, Supreme Court of the Northern Territory, SCC 21032177, Kelly J, 2 December 2010) 4; Transcript of Proceedings, R v Pot & Ors (Unreported, Supreme Court of the Northern Territory, SCC 21037929/21037928/21037930, Riley CJ, 18 January 2011) 10; Transcript of Proceedings, R v Balu & Anor (Unreported, Supreme Court of the Northern Territory, SCC 21031840/21035881, Barr J, 4 February 2011) 8; Transcript of Proceedings, R v Tahir & Anor (Unreported, Supreme Court of the Northern Territory, SCC 20918263/20918261, Mildren J, 28 October 2009) 4; Transcript of Proceedings, R v Santoso & Ors (Unreported, Supreme Court of the Northern Territory, SCC 21034360/21031843/21034363, Riley CJ, 18 January 2011) 4; Transcript of Proceedings, R v Dopong & Ors (Unreported, Supreme Court of the Northern Territory, SCC 21041382/21041385/21041380, Barr J, 25 January 2011) 6; Transcript of Proceedings, R v Suwandi (Unreported, Supreme Court of the Northern Territory, SCC 21037950, Riley CJ, 18 February 2011) 4; Transcript of Proceedings, R v Syukur & Ors (Unreported, Supreme Court of the Northern Territory, SCC 21101380/21101388/21101381, Riley CJ, 15 March 2011) 4.

132 Migration Act 1958 (Cth) ss 236B(3)(b), (4).

133 Transcript of Proceedings, R v Nafi (Unreported, Supreme Court of the Northern Territory, SCC21102367, Kelly J, 19 May 2011) 6.

134 Ibid.

135 Ellie Turner, ‘Smuggler to Get No Mercy', Northern Territory News (Darwin), 21 May 2011, 2.

136 Transcript of Proceedings, R v Tahir & Anor (Unreported, Supreme Court of the Northern Territory, SCC 20918263/20918261, Mildren J, 28 October 2009) 4.

137 Bahar v The Queen (2011) 255 FLR 80, 95 (McLure P).

138 (Unreported, Supreme Court of the Northern Territory, Kelly J, 7 May 2010).

139 (Unreported, District Court of Western Australia, Eaton DCJ, 21 May 2010).

140 Transcript of Proceedings, R v Santoso & Ors (Unreported, Supreme Court of the Northern Territory, SCC 21034360/21031843/21034363, Riley CJ, 18 January 2011) 3.

141 Transcript of Proceedings, R v Bumiamin (Unreported, Supreme Court of the Northern Territory, SCC 21040051, Southwood J, 21 January 2011) 3.

142 Transcript of Proceedings, R v Min & Ors (Unreported, Supreme Court of the Northern Territory, SCC 21038796/21038782/21038797, Blokland J, 18 February 2011) 7.

143 See, eg, R v Suwandi (Unreported, Supreme Court of the Northern Territory, Riley CJ, 18 February 2011); R v Bumiamin (Unreported, Supreme Court of the Northern Territory, Southwood J, 21 January 2011); R v Ndolo (Unreported, District Court of Western Australia, O'Brien DCJ, 3 April 2009).

144 (Unreported, District Court of Western Australia, February DCJ, 21 April 2010).

145 (Unreported, District Court of Western Australia, Eaton DCJ, 21 May 2010).

146 Debbie Guest, ‘Accused People smuggler's Mutiny Fear', The Australian, 16 March 2010, 2.

147 Ibid.

148 Australian Associated Press, ‘Indonesian Boat Captain Found Guilty of People Smuggling', The Sunday Times (online), 26 March 2010 <http://www.perthnow.com.au/news/western-australia/indonesian-boat-captain-found-guilty-of-people-smuggling/story-e6frg13u-1225845869397>.

149 Transcript of Proceedings, R v Hasanusi (Unreported, District Court of Western Australia, 1365/2009, Fenbury DCJ, 21 April 2010) 2.

150 Commonwealth Director of Public Prosecutions, CDPP 2009-10 Annual Report, above n 9, 61.

151 R v Pandu & Ors (Unreported, District Court of Western Australia, Eaton DCJ, 21 May 2010).

152 Inquest into the Death of Mohammed Hassan Ayubi, Muzafar Ali Sefarali, Mohammed Amen Zamen, Awar Nadar, Baquer Husani [2010] NTMC 014 [86], [95]–[98].

153 R v Bumiamin (Unreported, Supreme Court of the Northern Territory, Southwood J, 21 January 2011) 3. See also Transcript of Proceedings, R v Dokeng (Unreported, Supreme Court of the Northern Territory, SCC 21032177, Kelly J, 2 December 2010) 3, where it appeared that the offenders were kind to the passengers and, in recognition of that kindness, the passengers gave the offenders money that they no longer needed after they left Indonesia.

154 Transcript of Proceedings, R v Nafi (Unreported, Supreme Court of the Northern Territory, SCC 21102367, Kelly J, 19 May 2011) 5.

155 Migration Act 1958 (Cth) s 233A(1)(c).

156 R v AMBO (2011) DCLR(NSW) 299.

157 R v Ahmad (2011) 254 FLR 361.

158 Report of the Ad Hoc Committee on the Elaboration of a Convention against Transnational Organized Crime, 55th sess, Agenda Item 105, UN Doc A/55/383 (2 November 2000); Addendum: Interpretative notes for the official record (travaux préparatoires) of the negotiations for the United Nations Convention against Transnational Organized Crime and the Protocols thereto, UN Doc A/55/383/Add.1 (3 Nov 2000) para 88; United Nations Office of Drugs and Crime, Legislative Guides for the Implementation of the United Nations Convention against Transnational Organized Crime and the Protocols Thereto (United Nations, 2004) 469; United Nations Office of Drugs and Crime, Model Law against the Smuggling of Migrants (United Nations, 2010) 2.

159 Migration Act 1958 (Cth) s 233B(1)(c).

160 Ibid s 236B(3)(a).

161 Asriana, Kebon, ‘Of Fishers and Men: Indonesians Held in Detention in Australia for People Smuggling are there because of Poverty’ (2011) 103 Inside Indonesia 1, 1Google Scholar.

162 Christine Jackman, ‘Caught in the Net', The Weekend Australian Magazine (Sydney), 16 April 2011, 16. Jackman notes that ‘Indonesia comprises 240 million people from roughly 300 distinct ethnic groups and speaking more than 700 different languages and dialects, spread across more than 6000 islands.'

163 Transcript of Proceedings, R v Nafi (Unreported, Supreme Court of the Northern Territory, SCC 21102367, Kelly J, 19 May 2011) 6.