Harsh penalties for boat crew 'target wrong people'

Jared Owens | The Australian  | December 31, 2011

NINE Australian judges have now criticised laws imposing mandatory five-year jail terms on the crew of asylum-seeker boats, with the latest saying the harsh penalties target the wrong people, condemn their children to "extreme poverty" and have no deterrent effect.

Sentencing two impoverished Indonesian fishermen this month, Queensland Supreme Court judge Roslyn Atkinson said the laws were failing to catch the smuggling kingpins who move freely between Indonesian villages in search of more crew members to bribe on to the boats.

"Those people who employ men like you will just move to another village because they regard you as completely expendable, and people in small villages without newspapers or the means of modern communication are most unlikely to hear of a sentence imposed in an Australian court," Justice Atkinson said in Brisbane on December 2.

Since the policy was introduced under the Howard government in 2001, it has been criticised by at least nine judges in NSW, Western Australia, Queensland and the Northern Territory.

Northern Territory Supreme Court judge Judith Kelly -- sentencing Edward Nafi, 58, in May -- said the five-year penalty for the offence was "completely out of kilter with sentences handed down in this court for offences of the same or higher maximum sentences involving far greater moral culpability".

Other judges to complain of the laws include Northern Territory Supreme Court Chief Justice Trevor Riley and judges of the same court, Dean Mildren and Peter Barr; West Australian District Court judge Mary Ann Yeats, NSW District Court judge Brian Knox and Queensland District Court acting judge Brad Farr.

But Federal Attorney-General Nicola Roxon yesterday backed mandatory sentencing, saying through a spokesman it was an effective deterrent when combined with other measures such as education campaigns.

When The Weekend Australian presented Ms Roxon's office with a parliamentary petition she tabled in 2001 denouncing mandatory sentencing in the NT and Western Australia as racist and insisting on greater discretion for judges, the spokesman said the Attorney-General was unavailable to comment.

Justice Atkinson said the convicted men, the cook and deckhand aboard a boat intercepted in March last year, had four children between them aged between 17 and three, who would "suffer dreadfully" without their fathers.

Jufri, 41, the cook, was the sole income-earner for his family of four, who live in an 18-square-metre hut with a dirt floor. His wife now works shelling crabs for 1.5 cents an hour.

The other man, Nasir, 42, has two children aged 17 and eight who now have no breadwinner. Nasir is skimping on essentials such as soap and toothpaste so he can send some of his $8 daily prison allowance back home.

"The serious offenders at whom (mandatory sentencing) must surely be aimed are those who profit from people-smuggling . . . rather than people like yourselves who are certain to be caught and who live in such impoverished circumstances that the small amount of money you would make from a journey such as this makes it worth taking the risk," Justice Atkinson said.