This is an extended version of the piece published in the email edition of Crikey earlier today. I’ve added a few more thoughts and more from Mildren J’s Sentencing Remarks in this matter.

In April this year, Kevin Rudd, maintaining the fine Australian political tradition of vilifying people you’ve not met and never will, told the world that:

“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 the boat, known as SIEV 36, carrying a group of Afghani asylum seekers en route to Australian waters from Indonesia.

SIEV 36

Last week two of Kevin Rudd’s “scum of the earth” made guilty pleas before Justice Dean Mildren in the Supreme Court of the Northern Territory in the matter of The Queen v Mohamad Tahir and Beny.

Justice Mildren, here speaking in his Sentencing Remarks directly to Mohamed Tahir & Beny, summed up the background to the trip from Indonesia:

On 15 April 2009 a Type IV Indonesian fishing vessel, about 15 metres in length of wooden construction with an inboard engine, was intercepted by HMAS Albany approximately two and a half nautical miles south-east of Ashmore Reef inside the Territory of Ashmore and Cartier Islands. The vessel has been given the name SIEV 36 by Australian authorities. At the time of interception you were both inside the wheelhouse at the helm of the SIEV 36. The vessel also carried 47 unlawful non-citizens, 46 from Afghanistan and one from Iran. The SIEV 36 had been at sea for about five days and nights after leaving Indonesia. The vessel carried sufficient food and water and it was equipped with a compass but it only had one life jacket. The passengers each paid up to $6000 to reach Australia.

And, rather than being the “lowest form of human life”, the two men charged with bringing the boat into Australian waters – Mohamed Tahir & a man known only as Beny – were really just young innocents abroad on a folly – not members of some evil conspiracy.

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 $AU560) 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 also had been employed as a fisherman. 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 on a beach. At the time of departure, a captain was also on board.

Beny and Tahir were both severely injured in the explosion.

As Justice Mildren told them in Court:

“Beny you 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.  Following your discharge from hospital you…were arrested and detained at the Brisbane Immigration Transit Accommodation at Pinkenba in Brisbane. You falsely told officers of the Department of Immigration and Citizenship that you were 17 years of age. A bilateral wrist X-ray taken for the purpose of age determination subsequently revealed that you d the skeletal maturity of a male of at least 19 years of age. I accept your counsel’s submission that the question of your age is one of some difficulty. You do not know your date of birth and there were conflicting reports about how old you were. It is accepted now that you are over 18 and that you are probably about 19, although you may be 20. This information has been confirmed by your solicitors through speaking to your family.”

…

“Tahir, also received burns to 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.”

…

You, Tahir, were arrested following your discharge from hospital and detained at the DIAC juvenile facilities at Redcliffe in Perth. You had falsely told officers at the DIAC that you were 13 years of age. A bilateral wrist X-ray taken for the purpose of age determination subsequently revealed that you had the skeletal maturity of a male of at least 19 years of age. You do not know your exact age but you accept that you are older than 18.

The question of Beny and Tahir’s age is relevant because of the operation of subsection 233C(1) of the Migration Act 1958 (the Act) which provides that a mandatory minimum sentence does not apply to persons under the age of 18 years.

Beny & Tahir entered guilty pleas to offences under section 232A of the Act for which the maximum penalty is imprisonment for 20 years or a fine of $220,000 or both.

The true evil for Beny, Tahir and for Justice Mildren, is the requirement that anyone found guilty under section 232A of the Act is liable to a mandatory minimum sentence of five years with a mandatory minimum non-parole period of at least three years as required by section 233C of the  Act.

These provisions were introduced as amendments to the Act 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 2,000 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.”

In Beny & Tahir’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 provisions of the Act.

In any other circumstances Beny and Tahir would be prime candidates for the exercise of long-standing judicial discretions and the application of the ordinary judicial Sentencing Principles that provide clarity and transparency in sentencing.

But in Beny & Tahir’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 Tahir were both sentenced to five years “on the top” and a non-parole period of three years.

Justice Mildren recommended that Beny and Tahir be released after twelve months.

Maybe now is the time to debate the merits of mandatory minimum sentencing under the provisions of the Migration Act?