18 December 2013


'Prosecution and Punishment of People Smugglers in Australia 2008-2011' by Andreas Schloenhardt in (2012) 40(1) Federal Law Review 111 offers
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
Schloenhardt comments that
If prosecutions are to have any impact on people smuggling ventures to Australia, the focus must be shifted from prosecuting those at the end of the chain to those higher up in the organisations who arrange for, and profit from, those ventures. Between 2008 and June 2011, only two organisers — Messrs Ahmadi and Olong, who were extradited from Indonesia and Thailand respectively — were successfully prosecuted, and one of those, Mr Ahmadi, was at most a 'middleman', not a primary organiser. The gaoling of these offenders, whose conduct in organising multiple boats brought hundreds of passengers to Australia, prevented them from engaging in further people smuggling operations, which had been their intention. Although the typical offenders' conduct in undertaking the final voyage to Australia remains important as the final step in the people smuggling process, they are essentially the 'sacrificial lambs of the people smuggling industry', allowing the organisers to profit from their trade while staying out of the reach of Australian authorities. 
Leaving questions of the effectiveness of incarceration and recidivism aside, the people smuggling activity which Australia's laws are designed to 'target and deter' could be more effectively disrupted by tracking down the organisers, incapacitating their operations (at least temporarily), and preventing them from continuing the practice of recruiting poor fishermen to take the passengers to Australia. The time, money and effort involved in prosecuting and gaoling hundreds of Indonesian fishermen would be better invested in investigating, extraditing and prosecuting the organisers who put them to the task in the first place. 
Second, the prosecutions have not been successful in deterring individuals from engaging in offending of this type. Many impoverished fishermen continue to be targeted and continue to be persuaded by the offer of large sums of money to take passengers to Australia. Australian policymakers should take note of the reservations in relation to the effectiveness of general deterrence in the context of people smuggling offences expressed by some sentencing judges. It is extremely doubtful that the fishermen who are targeted by organisers, who are often illiterate and living in isolated villages, will be aware of, let alone be deterred by, the tough penalties imposed for people smuggling offences. This concern has been expressed in many sentencing remarks and is shared by many experts in the field.  
Australia must therefore rely on other means to ensure that Indonesians are aware of Australia's tough penalties for people smuggling offences, particularly those who are at risk of being targeted by organisers. It is worth noting that the Commonwealth government launched an AUD4 million education campaign in Indonesia in 2010 intended to reinforce the message that there are tough penalties for people smuggling offences, but this has been met with a mixture of enthusiasm in some of the villages that have been targeted and cynicism in others. Those formulating public awareness campaigns must bear in mind Indonesia's diversity of language and culture, and the poverty afflicting many of the small islands comprising its archipelago. 
Third, the mandatory minimum penalties provision has forced sentencing judges to impose sentences which are greater than the circumstances would otherwise justify. Because, according to the usual principles of sentencing, the appropriate sentence in these cases was frequently a lesser sentence than the mandatory minimum, the mandatory minimum sentence has been applied to all offenders who fall within that class. As a result, principles of parity between people smuggling offenders have been compromised. The recent decision in Bahar v The Queen has allayed these concerns somewhat, but this has come at the cost of potentially even more unjust sentences for individual offenders (which is what the earlier approach sought to avoid). 
Given that the two organisers who were prosecuted during the period studied, Messrs Ahmadi and Olong, were sentenced according to the usual sentencing principles and were given head sentences equal to or greater than the mandatory minimum now required, there is little support for the view that courts would impose lighter sentences on organisers, whose culpability for the offending is substantially greater than the typical offender, in the absence of a statutory minimum. 
The fear, it seems, is that courts would return to the pre-2001 practice of applying the usual sentencing principles in relation to the offenders who make up the majority of people smuggling prosecutions and impose sentences which, in the eyes of the Commonwealth government and the Opposition, appear too lenient. It is, however, implausible that Parliament genuinely considers these typical offenders deserving of sentences 'completely out of kilter with sentences handed down ... for offences of the same or higher maximum sentences involving far greater moral culpability including violence causing serious harm to victims',  as the mandatory minimum provision requires courts to impose. Rather, the retention and extension of the mandatory minimum sentence to a broader range of circumstances for people smuggling offences by a government which is — rightly or wrongly — popularly blamed for the surge in people smuggling ventures since September 2008, seems designed for the same purpose which motivated the introduction of mandatory minimum sentences by the former government in 2001: to appear 'tough' on people smugglers. 
That is wrong. Judges' sentencing discretions should not be curtailed for political purposes. In the context of people smuggling offences, it has required courts to impose heavier sentences than would be proper according to the circumstances. The mandatory minimum provision should be removed so that offenders can be sentenced appropriately and according to basic principles of fairness and justice.