Charges dropped as mandatory sentencing for low-culpability people smuggling accused is abandoned

Prosecutions in Victoria against 11 boat crew charged with people smuggling offences have been discontinued in the past week following a direction from Commonwealth Attorney-General Nicola Roxon.

On 27 August, Ms Roxon instructed the Commonwealth Director of Public Prosecutions to not institute or carry on with prosecutions of boat crew who have not committed repeat offences, or where culpability and responsibility were low.

It allows charges to be reduced to ‘non aggravated’ offences, which do not carry a mandatory five-year jail penalty, and means that judges can now consider the individual circumstances of accused.

The direction follows Ms Roxon’s consideration of the Report of the Expert Panel on Asylum Seekers, released in August, and the efforts of Victoria Legal Aid and others to highlight the unfairness of mandatory sentencing for boat crew who were often victims of people smugglers.

Commonwealth Crime Deputy Managing Lawyer, Sarah Westwood, commended the Attorney-General.

‘We also look forward to legislation being amended so that the criminal justice system can respond to poor and uneducated boat crew justly,’ she said.

Among the discontinuances filed in the County Court of Victoria this week, perhaps the most notable was for 20 year old Jeky Payara, who has spent two years in detention, much of that in a maximum security remand centre.

Jeky was living on the streets in northern Jakarta when he was recruited by people smugglers who offered him $1000 AUD to crew a boat of asylum seekers. He was told all he needed to do was to steer the boat to an island, drop the people off and come back.

Jeky came to national attention last year when on his behalf, our lawyers sought clarification from the Court of Appeal about the lawfulness of assisting people who are seeking asylum. The Commonwealth Parliament effectively shut down the application when it passed retrospective amendments to the Migration Act 1958 that mean boat passengers must have valid visas in order to have a lawful right to come to Australia.

Jeky will now return home to Indonesia.

Of the 66 people smuggling prosecutions that have commenced in Victoria, 33 have now been discontinued.