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In April this year, Prime Minister Kevin Rudd told the world:
People smugglers are engaged in the world’s most evil trade and they should all rot in jail because they represent the absolute scum of the earth. We see this lowest form of human life at work in what we saw on the high seas yesterday.
Rudd was talking about the tragic events arising from an explosion on board a boat carrying a group of Afghani asylum seekers.
Last week Rudd’s “scum of the earth” appeared before Justice Dean Mildren in the Supreme Court of the Northern Territory.
The two men charged with bringing the boat into Australian waters are Mohamed Tahir and a man known only as Beny. Beny is one of twelve children and attended school in South Sulawesi till he was about seven-years-old and has mostly worked as a subsistence fisherman and labourer.
As Justice Mildren told the court on his Sentencing Remarks:
…Approximately 12-18 months ago, you left South Sulawesi to go to Java in order to find work. You obtained some employment but about a month before you became involved in this matter, you left Java to go to Lombok in order to find work there. You were approached in Lombok by an older man who offered you employment on this trip. You were to be paid five million rupiah (about $560) which to you is a very large sum of money. You were lured into the task by the money. You expected to be caught. You were told that you would be returned home after a short time.
Mohamed Tahir was one of seven children had a similar work history as Beny and was:
…born in a village called Muncar near Banyuwangi in East Java…You were approached by two older men at the wharves near your village and were offered five million rupiah to undertake this job. You had not been in work for some months and to you this was a very substantial sum of money. You left your village with the men and you were taken to Lombok. There the vessel was loaded with the passengers.
Beny and Mohamed were both severely injured in the explosion.
As Justice Mildren told them in Court:
Beny … received burns to your left leg, left arm, left foot and the left side of your back. You were also thrown into the water for about 25-30 minutes before you were rescued. You were hospitalised for about 20-30 days.
Tahir, also received burns to your right arm and left leg. You have permanent significant scarring. You are still wearing bandages and will need to wear the bandages for the next two years. You still have pain.
Beny and Mohamed entered guilty pleas to section 232A of the Migration Act 1958 for which the maximum penalty is imprisonment for 20 years or a fine of $220,000 or both.
The true evil for Beny, Mohamed and for Justice Dean Mildren, is the requirement that anyone found guilty under section 232A is liable to a mandatory minimum sentence of five years with a mandatory minimum non-parole period of at least three years contained in section 233C of the Migration Act.
These provisions were introduced in 1999.
Introducing the Bill to the House of Representatives, Peter Slipper said that:
The bill … introduces a more severe penalty of 20 years imprisonment or 2000 penalty units, or both, for the trafficking of groups of five or more people. This penalty recognises that organised crime groups are involved in people trafficking, and the penalty reflects the seriousness of the offence.
Labor’s Con Sciacca responded:
Overall in 1997-98 some 157 illegal immigrants arrived by sea on our shores. In 1998-99 this figure increased eightfold to 859, and more are coming every day. This increase in people smuggling, in the operation of the so-called “snakeheads”, signifies that Australia’s penalties for these offences do not go far enough to deter those who assist these criminal warlords on our shores.
But in Beny and Mahamed’s case all in Justice Mildren’s Court knew that they were not members of one of Slipper’s “organised crime groups”, nor were they Sciacca’s “snakeheads” or Rudd’s “scum of the earth” deserving of the condign punishment required by the Migration Act provisions.
Beny and Mohamed were prime candidates for the exercise of ordinary judicial discretion and the application of the usual judicial Sentencing Principles that provide clarity and transparency in sentencing.
But in Beny and Mohamed’s case Justice Mildren’s hands were tied.
In words that reveal his barely restrained judicial frustration, he told Beny and Mohamed that:
But for the mandatory minimum sentences which I am required to impose, I would have imposed a much lesser sentence than I am now required by law to do. There are dangers when the Courts are required to impose mandatory minimum sentences. In cases such as this, the ordinary sentencing principles play no function.
The other dangers of mandatory minimum sentencing, apart from the fact that the Court is required to impose a sentence which is greater than the justice of the case would otherwise require include the fact that principles of parity between offenders has little or no role to play. All offenders that fall within the class will be treated equally no matter what their level of criminality may be.
However this is not the occasion to debate the merits of mandatory minimum sentencing.
Beny and Mohamed were both sentenced to five years “on the top” and a non-parole period of three years. Justice Mildren recommended that Beny and Mohamed be released after twelve months.
Maybe now is the time to debate the merits of mandatory minimum sentencing?
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27 Comments
Outstanding piece Bob . Thank God for Crikey, the only publication with the courage to challenge this sort of f**ked up status quo.
Gosford=Substance
Justice Mildren and People Smugglers
Justice Mildren should perhaps leave the bench and run for Parliament so that he can make the laws and not enforce them . He has perhaps forgotten that his judicial obligation is to enforce the law that Parliament makes. For once at least a significant penalty is being handed out in a situation where the judiciary cannot water down the impact of judicial process to suit their own preferences.
Several years incarceration for people smuggling follows the Mao Zedong principle of “execute one educate a thousand” and hopefully application of these penalties will send a clear message to the Indonesian community that facilitating people smuggling as a get rich quick option has a downside.
One of the individuals concerned was apparently advised that he would be caught, but would be soon sent home. It would appear that this myth has now been dispelled.
There is a similar situation with illegal fishing off the northern Australian coast. There are many instances of several repeat offenders being caught and sent back to Indonesia a number of times after a judicial “a slap on the wrist “. Hopefully five years in jail will reduce the frequency of facilitation of smugglers by repeat offenders.
So, does this reasoning apply to the Bali Nine as well? After all, they were also ‘victims of circumstance’ and not members of any crime organisations. They were also led astray by the prospect of monetary rewards. They were also kids from poorer working class backgrounds. I would like to know what Justice Mildren’s summation of their case would be. If it is any different to his opinion on these 2 people smugglers, then he is nothing short of a hypocrite. If it is the same, then I would concede that he only just might have a point in this grey area of the law.
It never ceases to amaze that only the ‘mules’ are ever caught and punished, while the organising top dogs go scott free.
Excellent reporting, Bob.
One thing, in the email you’ve got: “Beny and Mohamed were prime candidates for the exercise of ordinary judicial discretion and the application of the usual judicial Sentencing Principles (insert link to attached PDF) that provide clarity and transparency in sentencing.”
The editors left out the link. Could Crikey please post the Sentencing Principles document, I’d like to see that.
And just where do these illiterate rural workers get to read about Australian law?
The supply of fodder, both refugees desperate enough to chance getting here, and willing crew desperate enough for a few hundred dollars is colossal.
Imprisoning these people is no more a deterrent than whacking the refugees in Baxter or Nauru, but once again, placates a stupid public who think vindictive laws misapplied to desperate people is some sort of ‘solution’.
It isn’t.
It has always been the same. There are no snakeheads anxiously out to “exploit” anyone, they were not sent to jail for people smuggling, they were sent to jail for not people smuggling.
Dozens of cases the same are on the record and I am sick to death of lawyers railroading these young guys to plead guilty to a non-crime.
It is legal for refugees to enter Australia without papers and using any available transport to do so. Not one refugee has ever been charged with illegal entry, because it is not illegal entry.
If the refugees have not entered illegally the stupidity of jailing these young guys is doubly stupid.
See, in the case of Hamdan v DIMA of 2004
31 Further, as Hayne J observed in Al-Kateb at [207]-[208] the description of a person’s immigration status as “unlawful” serves as no more than a reference to a non-citizen not having a “valid permission to enter and remain in Australia”. The use of the term “unlawful” does not as such refer to a breach of a law.”
And as stated in Al Masri of 2002:
“62 The Refugees Convention implicitly requires that, generally, the signatory countries process applications for refugee status of on-shore applicants irrespective of the legality of their arrival, or continued presence, in that country: see Art 31. That right is not only conferred upon them under international law but is also recognised by the Act (see s 36) and the Migration Regulations 1994 (Cth) which do not require lawful arrival or presence as a criterion for a protection visa. If the position were otherwise many of the protection obligations undertaken by signatories to the Refugees Convention, including Australia, would be undermined and ultimately rendered nugatory.”
Not only that but Ashmore Island has been excised from the Migration zone so when they arrive there the refugees aren’t deemed to be in Australia so they are shipped 1800 Km to the west where they are deemed not to be in Australia.
http://sievx.com/articles/sentences/dirlist.php
If you read these cases you will note:
“As has been observed in relation to other cases of this kind, the prisoners were not involved in a ‘people-smuggling’ exercise. There was nothing covert about either operation. They were transporting the non-citizens to Australia for presentation to Australian authorities. There was no attempt to hide from the authorities or to disguise what they had done”.
The so-called smugglers are given lawyers, charged with the non crime of not smuggling anyone and sent to prison.
In some cases taken from senate and courts notes I have found that in the past the juveniles were not sent to prison but sent home while thousands of the “victims”, the refugees, were sent to detention for up to 5 years, 5 months and 20 days.
Sciacca and co. were well aware of that at the time.
Thursday, 10 February 2000 SENATE—Legislation L&C
Senator McKIERNAN—I am talking particularly about the boat people. They are the
people who arrive on our shores – mainly on Ashmore Islands – and who put their hands up
and say, ‘Find me, find me! Take me in.’ They do not use these exact words, but they want to
be found. These are not people who are escaping the scrutiny of our Coast Watch people.
Senator Vanstone—Senator, I cannot resist! Perhaps you could tell Mr Beazley that so he
does not keep raving on about this silly idea that we need a Coast Guard to locate the people.
You at least realise that they want to be found; it would be helpful if your party realised that
as well.
The fishermen are sent to jail because we then have to live up to our responsibilities as signatories to the refugee convention.
Read the cases and see what a hoax it all has been all along.
AS I have been saying since I found the cases in 2002, the senate has had them since inquiries beginning in 2004 and they completely ignore it.
I’m shocked that the Howard government, with the support of the Opposition, introduced minimum mandatory sentences. I wonder where Petro Georgiou stood on this. And all the Liberal lawyers. Neither Hamer nor Kennett Liberals would have enacted minimum sentences (though in Opposition mostly didn’t vote against the Cain or Kirner government’s Community Protection legislation designed to keep one man in prison whose sentence had expired).
It doesn’t even have the excuse of being likely to work in the sense of there being some big beneficial result from such a huge departure from respect for the individual and the ordinary principles of justice. It’s all very well to be a tough minded pragmatist like Greg Angelo but pragmatists ought to have a better grasp of reality (cf. Christopher Dunne’s comment for one example).
Cazza, what have the Bali Nine, arrested and tried in Indonesia, got to do with Mildren or any other Australian judge?
Greg Angelo, how much would you say of your understanding of criminal justice comes from watching television?
It would be worth reading up on the NT mandatory sentencing laws of a few years back, and you probably learned about separation of powers in school, so the dangerousness of removing the court’s discretion should start to come clear. It could be you in the dock one day when it dawns on you that all your extenuating circumstances and the court’s mercy are useless to you.
Greg Angelo, the missing link in your logic is that you assume that the laws and sentencing outcomes will be accurately communicated back to the people considering taking a job on one of these boats. I would assume the opposite on the basis that the prospective ‘employers’ certainly wouldn’t tell them the real score and I’m not aware of an accurate communication channel that would either. Perhaps you could explain why you think this is a reasonable assumption.
You said “There are many instances of several repeat offenders being caught and sent back to Indonesia a number of times” sounds pretty nice in a non-specific and unsubstantiated fashion. Would be nice if you could provide some links and examples of these, shouldn’t be too difficult if there are ‘many’ of them.
Frank I don’t understand.James and Chris , I agree with you both.Christopher I wonder the same thing. Greg you have no compassion. Shepherdmarilyn thanks for the insight. Julius why are you shocked? populist politics are all the rage! Cazza I won’t bother.
First it was make excuses for boatpeople blowing up their own boat, now it’s all about the poor hard done by people smugglers.
I’m playing the worlds smallest violin as we speak.
Yes, TTH, and one day it could be you being clapped behind bars for some political reason rather than to uphold the law. And then I’d love to see your face when you realise that people like us are the ones trying to defend your rights while those you thought were like-minded are saying “lock him up and throw away the key”.
Bravo JamesMcD - “..when they came for me, there was no-one left to protest”.
Why have judges when we have mandatory minimums? That loathesome concept is why amerika has more people in gaol per capita than ever was the case in ZuidAfrika, USSR or China.
To all who’ve made a comment so far - thanks for your thoughts - sorry for the delay but I filed this early this morning and have spent a large part of the day driving from Tennant Creek to Alice. A couple of beers on a Friday afternoons later…
Re Greg A - Mildren, like many of us in the NT, has had experience with the iniquities imposed by the CLP government’s mandatory property crime laws of the mid to late ‘90’s - I suspect that this informs his comments to no small degree. I once appeared in court for a client who did a stupid things and for which he was sentenced to 14 days in Berrimah for something that the prosecutor, myself and the Magistrate all agreed should have been disposed of with a stern talking-to…ruined his life and devastated me…
Re the fishers - many of those caught as repeat “illegal” fishers in “Australian waters” were subsistence fishers from small islands in small boats with a few fish on board - but I’ll accept there were more egregious offenders - but all were lumped in together by the law.
And for Caz - I haven’t looked at previous cases but in my humble opinion Mildren J is a judge of unimpeachable integrity and I’d have no problem stating that where a sentence was deserved - as in the case of a “genuine” people smuggler - then he would have no hesitation in applying the penalties as provided by the Act - with of course some difficulty with having long-trusted and accepted sentencing principles overridden by Parliament.
I’ve added a bit more to this over at The Northern Myth blog here: http://blogs.crikey.com.au/northern/2009/10/30/meet-kevin-rudd%E2%80%99s-%E2%80%9Cscum-of-the-earth%E2%80%9D-5-years-in-berrimah-for-560/
More later - and keep your thoughts coming.
This may appear over simplistic, but it seems to me that what is happening with asylum seekers, Indonesia and the attitudes to those who provide the boats etc is covering up the injustices we’ve been committing in other countries for years. I refer of course, to Afghanistan and Iraq, and our slavish support for the US and their domineering, violent and reprehensible activities in too many countries for far too long. They’ve interfered in or invaded over 40 countries since the end of WW2. We’ve either participated in them or supported them in the UN and publicly, both domestically and on the world stage. Take the Rudd govt’s slavish carry on with Israel - supporting them and their breaking of how many UN Resolutions over 60 years - 150 or more? We invaded Iraq because Howard maintained that Saddam Hussein didn’t comply with one - Resolution 1441. We then invaded and stood by while the US had him quickly executed so they’d avoid a nasty trial! We’ve a damned cheek! Iraq and Afghanistan are almost destroyed beyond redemption, and we’re still doing it!
Now we’re holding a gun to Indonesia’s head on the one hand, at the same time having bear hugs and talking about friendship. I bet young people are totally confused. God knows what messages they’re getting.
In reference to the ‘when they came for me there was no one left’. There’s a good documentary called, ‘Unconstitutional - the war on civil liberties in America’. It can be seen on http://www.freedocumentaries.org and is most revealing, and heartening too. It covers the time after 9/11, the PATRIOT Act and the activities of the intelligence agencies, the Bush Administration, the Civil Liberties Union, local politics and the people taking a stand.
Kevin Rudd should be ashamed of himself. He’s in a firm positon electorally, and he could’ve taken the Australian people into his confidence; engaged them in the facts of the numbers arriving etc, the relevant Migration Act and our responsibilities etc. He lost an ideal opportunity to show leadership. Instead, he engaged in name calling (scum) and ran away and hid. Paul Howes displayed more maturity and leadership than both the Govt and the Opposition, who are just beyond despicable!
Whilst we’re empathizing with the victims why don’t we also learn to refer to them as Afghan or Afghans. An ‘Afghani’ is a unit of currency not a nationality.
HongKongMick - thanks for the correction…and for Liz - there was an earlier comment about the complexity of these issues (and there are several) and that we take it for granted that many Australians are aware of the intricacies of the debate even though they only focus on the cruder aspects of it..
Contrast that with the very real likelihood that people like Tahir & Beny appeared to have no understanding of the harsher elements of Australian law and what they were in for if they were apprehended.
That doesn’t excuse Tahir & Beny - they obviously knew it was unlawful to drive a boat full of Afghans to Australia - but it puts another perspective on the regime of minimum mandatory detention - I’m pretty sure that they would have been aware of the high likelihood of their detection - but as they told the Court - if they were caught they thought they’d be sent straight home…
Hope this makes sense - been a long hot day here in Alice…
Greg Angelo - you might think it’s a good idea to take law and order guidance from one of the greatest mass killers in history, but I hope no one in authority in Australia ever does. Given how many deaths Mao was responsible for, if executing one educated a thousand, the whole population of China must have been educated many times over.
These mandatory sentencing laws were also used to imprison two people who helped over fifty refugees escape from Vietnam in 2003. That’s despite the fact they were related to the refugees - one was an Australian citizen who returned to Vietnam to help some of his relatives escape - who received no financial or other benefit from doing so.
Like most of these measures from the Howard era, the changes were brought in with the support of both major parties (although not with some misgivings). As with most of these, the political message was what mattered, not whether it would have any practical effect on people flows and certainly regardless of the human damage it might cause.
If I was Indonesia, I’d be requesting Australia scrap these mandatory sentencing provisions - which would still allow for major sentences to be handed out to any major smuggling king pin who ever gets caught, without locking up impoverished fishermen for years.
Unfortunately, given Kevin Rudd’s overkill comments about people smugglers, it’s probably now politically impossible to make such a change.
Bob it is not unlawful to bring a boat load of refugees to Australia, it is their right under the law to come and they need transport.
You need to read the provisions of the people smuggling protocol I posted.
61 The Refugees Convention is a part of conventional international law that has been given legislative effect in Australia: see ss 36 and 65 of the Act. It has always been fundamental to the operation of the Refugees Convention that many applicants for refugee status will, of necessity, have left their countries of nationality unlawfully and therefore, of necessity, will have entered the country in which they seek asylum unlawfully. Jews seeking refuge from war-torn Europe, Tutsis seeking refuge from Rwanda, Kurds seeking refuge from Iraq, Hazaras seeking refuge from the Taliban in Afghanistan and many others, may also be called “unlawful non-citizens” in the countries in which they seek asylum. Such a description, however, conceals, rather than reveals, their lawful entitlement under conventional international law since the early 1950’s (which has been enacted into Australian law) to claim refugee status as persons who are “unlawfully” in the country in which the asylum application is made.
62 The Refugees Convention implicitly requires that, generally, the signatory countries process applications for refugee status of on-shore applicants irrespective of the legality of their arrival, or continued presence, in that country: see Art 31. That right is not only conferred upon them under international law but is also recognised by the Act (see s 36) and the Migration Regulations 1994 (Cth) which do not require lawful arrival or presence as a criterion for a protection visa. If the position were otherwise many of the protection obligations undertaken by signatories to the Refugees Convention, including Australia, would be undermined and ultimately rendered nugatory.
63 Notwithstanding that the applicant is an “unlawful non-citizen” under the Act who entered Australia unlawfully and has had his application for a protection visa refused, in making that application he was exercising a “right” conferred upon him under Australian law.”
See, nothing illegal or unlawful actually, it is a right under the refugee convention.
IV. Final provisions
Article 19
Saving clause
1. Nothing in this Protocol shall affect the other rights,
obligations and responsibilities of States and individuals under international
law, including international humanitarian law and international human
rights law and, in particular, where applicable, the 1951 Convention and the
1967 Protocol relating to the Status of Refugees and the principle of nonrefoulement
as contained therein.
A third common feature of the Rudd Government’s present actions and the earlier Pacific Solution is the persistent distortion of the law to serve blatantly political ends. Just as Philip Ruddock and John Howard wrongly argued that Australia had the right to force refugees away from its territorial waters at will despite having undertaken international protection obligations to all refugees under its jurisdiction, we now see the Prime Minister confidently asserting that he will make “no apology whatsoever in terms of the series of hardline measures that [the government is] taking in relation to people smuggling and in relation to illegal immigration”.
Rudd is absolutely wrong to suggest that he is entitled to force refugee claimants into detention in Indonesia on the grounds either that they are travelling with aid of people smugglers, or because they are “illegal” immigrants.
Refugees use smugglers – and sometimes, regrettably, traffickers as well – precisely because there is no other way quickly, and with even a modicum of reliability, to get out of dangerous places and to a country in which they can seek recognition of their protected status. Australia, like most other rich countries, has erected a myriad of physical and legal barriers – carrier sanctions, visa controls, and the like – that prevents genuine refugees from coming to us legally. Even if a refugee could somehow safely reach and walk into an Australia embassy abroad, we would not issue a visa for the purpose of seeking asylum here. Travel without pre-authorisation is, for the truly desperate, usually the only real option.
Professor James Hathaway.
By making the method of transport into Australia illegal Howard and Ruddock and co. effectively tried to slam the door.
And many of the so-called smugglers when home years before many of the refugees were released from detention.
Julius: “… the Cain or Kirner government’s Community Protection legislation designed to keep one man in prison whose sentence had expired”
I must have missed that one, can you give me a reference keyword?
James McDonald
You could start with “Garry David” or http://www.dhs.vic.gov.au/__data/assets/pdf_file/0005/160727/literature-review.pdf
The relevant part of that URL / pdf doc starts at p.37
My recollection is that Liberal (and perhaps Nat ? Peter Hall) members of the Social Development Committee which had turned thumbs down on the Community Protection bill (maybe Community Protection (Violent Offenders) Bill 1992 actually voted against the bill, at least in the Leg Co. Denis Napthine, future Liberal leader, may have done so in the Assembly as well as speaking against the bill.
Another Liberal (?Guest) voted against in Leg Co and answered questions about what he would do by saying that the cost of monitoring a single allegedly deranged prisoner full time was not too high a price for adhering to long established principle. I remember that because it struck me as one of the few bits of rational dispassionate thinking in the whole sorry episode. The very smart Marie Tehan who was shadow Attorney-General or shadow minister for Health made a fine impassioned speech against the bill and somehow ended up saying, almost, “and that is why we must vote for it”.
Ah, good old preventive detention. Just a teeny weeny compromise of the chapter 13 separation of parliament and judiciary, all in a good cause, nothing to lose sleep over …
James McD - don’t you mean Ch 3 - the Judicature…and of course minimum mandatory sentences offend the principles contained therein…
Chapter 3. Thank you
It goes with my renowned expertise in spelling people’s names correctly.