A NSW judge has strongly criticised mandatory jail terms for people smugglers, saying they can lead to unfair and unjust jail sentences as well as a waste of court time and taxpayers money.
The District Court judge Paul Conlon made the comments yesterday when he handed down a mandatory five-year jail term, with a three-year minimum, for Mursid Karim, a 55 year-old poorly educated fisherman and father of seven from the remote Indonesian island of Ternata.
"In my view, the present case provides a glaring example of how mandatory penalties can sometimes prohibit a court in delivering a fair and just result," he said.
There was little doubt if mandatory sentencing had not applied, Karim would have pleaded guilty "saving much time and expense".
Judge Conlon said under current legislation "there is simply no incentive for an offender to plea.
"Under the circumstances, it is easy to understand why an accused would chance his arm hoping to get a sympathetic jury, feeling he has little to lose"
Mr Karim appeared in Campbelltown Court yesterday for sentencing after a jury had previously found him guilty.
Judge Conlon said if he'd had the discretion, he would have given Karim a minimum term of about 18 months.
Karim had little or no education, lived in a house made out of palm trees and leaves, had never been in trouble before, had suffered ill health and was not one of "the real smugglers".
"The real smugglers in all of these cases are persons who go about their business in Indonesia with complete impunity," Judge Conlon said.
The court heard Karim was one of three crew members on board an eight-metre boat that was detected about six kilometres north of Ashmore Reef on April 22 last year.
There were nine passengers, including five Somali women.
The vessel, which was taking on water, had left Indonesia some 40 hours earlier before being intercepted by HMAS Maitland.
Karim had been paid about US$1000 to take the passengers to Ashmore Reef.
Charges against his two fellow crew members were dropped when it transpired they were probably under 18.
Judge Conlon said at the trial, the Crown had called evidence from five of the passengers.
One, an Afghan man, had paid US$8000 to a smuggler who had organised for him to fly on a false passport to Malaysia then to travel to Indonesia.
A second man had flown from Pakistan to Malaysia on a false passport, paying a smuggler $US3000. He paid a further $US4000 for his trip to Australia.
But, Judge Conlon said, this man's first attempt had failed when his vessel had been detected.
"He spent 10 months in detention [in Indonesia] before being released on April 12, 2010.
"He stated that while in detention he had access to a lot of numbers for different smugglers and he made contact with a smuggler named Andy who arranged for his second attempt for another US$3000."
A third passenger, a Somali man, said he and his three daughters, aged 15, 12 and 10, and another woman had paid "Andy" US$12,500.
All said they had been taken to a beach and had walked into the water to board the vessel which had mostly been steered by Karim.
In an exchange yesterday with Karim's lawyer, David Evenden, Judge Conlon said the evidence indicated overseas detention centres were "presided over by corrupt officials" who assisted detainees to make contact with smugglers.
In his sentencing remarks, the judge said the evidence also indicated "that what one needed to be released from such detention centres was an ability to pay a bribe."
Of the $1000 paid to Karim to make the journey, Judge Conlon said: "Such an offer to a poor fisherman would be sufficient temptation to have him embark on this journey, accompanied by a suggestion by the smuggler's agent that the passengers' families would be meeting them at Ashmore."
"I am satisfied ... his involvement came about opportunistically, it was a spur of the moment decision, there was no planning."
Giving evidence through an interpreter yesterday, Karim said he had been given a compass by one of the smuggler's 'agents' and told to travel for three hours at a bearing of 180 degrees and then 170 degrees.
He had never before been to Ashmore Reef.
He told Mr Evenden he had spoken to his family twice in the past 15 months.
"They asked me 'why are you in Australia' and I said I have been tricked by people [the smugglers] that is why they apprehended me.
"Then they cried."
Judge Conlon said Karim would "no doubt' be sent back to his family in Indonesia once his minimum term expired on April 21, 2013.
"A sentence appropriate to the circumstances could have seen him being returned to his country in about October, 2011.
"However, he will now be our guest for a lot longer."