The case of SIEV Ida refers to the Indonesian vessel 'Lima Tujuh' that was apprehended by Australian authorities near Ashmore Reef on 30 August 1999. It was carrying 24 smuggled migrants of Afghan, Palestinian, and Sri Lankan background who came to Australia to seek asylum. The vessel was crewed by five Indonesian men, including two juveniles. All five men were later charged and convicted for their involvement in this venture. Appeals and cross-appeals from the prosecution and the juvenile offenders respectively against the length of the offenders' sentences were unsuccessful.
IndonésieAustralieSupreme Court of the Northern Territory
This was the trial of Kusman Salihin, Hama Sirup and Laaji Kuni.
In sentencing the defendants, Justice Riley remarked:
'It is not difficult to see why the offences are treated so seriously. Potential risks to the people of Australia are obvious and significant. Whilst the present offences are serious, they are far from the most serious contemplated by s 233(1)(a) of the Migration Act.
Although the prisoners are at the end of the chain of persons involved in facilitating the journeys of these people from their country of origin to the shores of Australia, they are a vital part of that process. They provide the means by which the final leg of the journey is completed. It is through them that entry into Australia is achieved.'
Justice Riley also noted that none of the defendants were motivated by humanitarian reasons; each were motivated for financial reasons.
Kusman Salihin, Hama Sirup and Laaji Kuni were sentenced to 2 years imprisonment each.
Mr Kuni was also ordered to forfeit his payment of IDR 215,000.
Juvenile Court
This was the trial of Mohamed Sidik.
Mohamed Sidik was sentenced to 6 months imprisonment.
Mr Sidik's sentence was later suspended on entering a good behaviour bond of AUD 100 on the condition that he would not enter Australia for five years. He was also ordered to forfeit the sum of IDR 68,000 found upon his person. He was removed from Australia on 13 October 1999.
Juvenile Court
This was the trial of Koa Najar.
Mr Najar was sentenced to 6 months imprisonment.
His sentence was later suspended on entering a good behaviour bond of AUD 100 on the condition that he would not enter Australia for five years. He was also ordered to forfeit the sum of IDR 50,000 found upon his person. He was removed from Australia on 13 October 1999.
Supreme Court of the Northern Territory
The complainant in Juvenile Court brought appeals on behalf of the Commonwealth against the sentences imposed on Messers Sidik and Najar on the ground that the sentences were manifestly inadequate and 'failed to give sufficient weight to general deterrence, the increasing prevalence of the offence and other matters.'
The appellant contended that 'the offences were so serious and so prevalent that, notwithstanding the respondents' ages, a deterrent sentence of actual incarceration was required in each case', and the Juvenile Court had erred in giving the respondents suspended sentences. The appellant placed emphasis on the Migration Legislation Amendment Act (No 1) 1999 (Cth) which increased the maximum penalty for an offence under s 233(1)(a) of the Migration Act 1958 (Cth) from two years' imprisonment to ten. This was argued to reflect a legislative concern that the previous maximum penalty was not an adequate deterrent. Reliance was also placed on evidence showing that the offence was becoming more prevalent. Mr Cavanagh SM, for the appellant, submitted that there was 'a need to get a strong message out to Indonesians and any other people who enter into this kind of trade that it won't be tolerated by the courts in Australia'.
Messrs Sidik and Najar cross-appealed their respective sentences on the basis that they were manifestly excessive. Counsel for the respondents submitted that the respective magistrates had erred in giving too much weight to general deterrence.
Justice Mildren dismissed the appeals and cross-appeals. His Honour noted that breaches of s 233 of the Migration Act do not ordinarily warrant an actual custodial sentence for a juvenile first-time offender, that the offence of bringing the smuggled migrants to Ashmore Reef was less serious than bringing them to the Australian mainland, and that the respondents had pleaded guilty at the first opportunity and had already spent some time in custody at the time they were sentenced. In particular, his Honour rejected the argument that organisers of migrant smuggling vessels choosing to employ juveniles as crew because of perceived lenient treatment of them by Australian authorities was a proper reason to impose a more severe sentence on juvenile first-time offenders. For these reasons, Mildren J rejected the submission that the sentence was manifestly inadequate.
Justice Mildren also rejected the respondents' submission that the sentence was manifestly excessive. His Honour noted that the sentences were intended to place significant emphasis on special deterrence to the two respondents, and considered that the Juvenile Court was not wrong in doing so.
The sentence given at trial, a custodial sentence suspended on the entering of a good behaviour bond, was not varied for either Sidik nor Najar.
2 of the migrants were children. 20 were Afghan, 2 Palestinian and 2 Sri Lankan.
The smuggled migrants from SIEV Ida were processed together with the smuggled migrants from two other migrant smuggling vessels, SIEV Jagged and SIEV Kembla. The total number of smuggled migrants from these three vessels was 145, of which 138 were granted Temporary Protection Visas and seven departed Australia. The exact number of smuggled migrants on board SIEV Ida which were granted Temporary Protection Visas was unavailable at the time of writing.
Mr Sidik lived with his parent in the village of Bakalan on the island Alor. He had left school and was employed as a fisherman. Mr Sidik told Australian police that he had been approached by a stranger who promised to pay him IDR 250,000 (AUD 34.78 at the time of Mr Sidik's hearing) to crew the Lima Tujuh to and from Ashmore Reef. He told police that this was a lot of money for him. Mr Sidik knew that he would be carrying passengers to Ashmore Reef, however he was unaware that he would taking foreigners to Ashmore Reef illegally. He also claimed not to know what a passport was.
Mr Sidik was released from imprisonment early and returned to Indonesia on 13 October 1999 on the condition he would not enter Australian territory for five years.
Like Mr Sidik, Mr Najar lived with his parents in Bakalan, Alor, Indonesia. He, too, worked as a fisherman. He told police that he had been recruited by a stranger to take people to Australia in return for IDR 500,000, and that he had given the money he was paid to his mother. He told police that he was aware that it was illegal to take foreigners to Australia by boat, and that he knew that the people on board the vessel he was to crew were foreigners, but maintained that he was unaware the destination of the vessel was Ashmore Reef until the vessel arrived there, so he did not know that he was breaking the law before leaving Indonesia.
Mr Najar was released from imprisonment early and returned to Indonesia on 13 October 1999 on the condition he would not enter Australian territory for five years.
Mr Sailihin was released from prison in Australia on 29 August 2000 and returned to Indonesia on 2 September 2000.
Mr Sirup was released from prison in Australia on 29 August 2000 and returned to Indonesia on 2 September 2000.
Mr Kuni was released from prison in Australia on 29 August 2000 and returned to Indonesia on 2 September 2000.
Mr Sidik was one of the five Indonesian crew members on board SIEV Ida when it was intercepted in Australia.
Mr Najar was one of the five Indonesian crew members on board SIEV Ida when it was intercepted in Australia. He faced the same charges as Mr Sidik.
Mr Salihin was one of the five crew members on board SIEV Ida when it was apprehended in Australia. He faced the same charges as the other co-accuseds.
Mr Sirup (or Sirip) was one of the five crew members on board SIEV Ida when it was apprehended in Australia. He faced the same charges as the other co-accuseds.
Mr Kuni was one of the five crew members on board SIEV Ida when it was apprehended in Australia. He was paid IDR 215,000 (AUD 48) for his involvement in the venture. He faced the same charges as the other co-accuseds.
R v Sidik and Najar [1999] NTSC 135, (1999) 119 A Crim R 1
R v Guruapin & Ors (Supreme Court of the Northern Territory, Riley J, 22 November 1999)
This entry was copied from The Migrant Smuggling Case Database, launched by the University of Queensland Migrant Smuggling Working Group in August 2013.
