A semi-literate Indonesian hired hand started thumbing the tears from his cheeks in the dock of courtroom LG2 in Sydney’s Downing Centre last April. He faced a roomful of imposing figures: two defence barristers and a crown prosecutor in black gowns, a judge resplendent in black, scarlet and lilac, an Australian Federal Police officer, two corrective services officers, and two rows of serious jurors, with notes and papers in front of them – the machinery of the NSW District Court at work, notionally dispensing justice to all.
Karyanto bin Suwarno, a slight man in his thirties with high cheekbones, dark skin and a mop of thick black hair, seemed far younger. He hadn’t seen his wife and 14-year-old daughter since October 2010, when he left home to work on a boat. He had yet to see his son, born in early 2011. So when he was presented with a sheaf of large colour photographs of his house and family, the court officer tactfully put a box of tissues within reach.
Bin Suwarno wore the same clothes in the dock, day after day: a plain dark-green sweater, a pair of khakis and unlaced canvas sneakers. Appearing to listen carefully to the questions put to him, his answers were often repetitious and occasionally shrill as he tried to get his point across, once swearing by the prophet Mohammed.
He’d already been in custody for nearly 18 months, first in a detention centre in Darwin and then in Sydney’s notorious Long Bay jail. As an “unlawful non-citizen”, bin Suwarno had no right to bail. Though a first-time offender, he faced a mandatory minimum sentence of five years in prison, with a non-parole period of three years, for the crime of helping convey 62 asylum seekers to Christmas Island.
Bin Suwarno told the court that he and his family lived in a small house near a well, in Java. He worked as a fisherman and sometimes he helped his wife harvest rice, and between them they could earn between about 175,000 and 455,000 Indonesian rupiah ($19 and $50) a day. Some weeks, though, depending on the catch, he earned nothing.
He had been to school for about two years, he explained, and he knew how to count and write his name. He’d never left Javanese waters before, nor heard of Christmas Island. He didn’t have a passport and didn’t know anyone who did. He had no idea a visa was required to travel to another country, nor that he’d been committing a crime when he worked on the boat headed to Christmas Island. He was simply following the instructions of a distant relative, whom he called ‘Uncle’. This man, Timin bin Sukarja, on trial with bin Suwarno, was a stocky older man with greying hair and, rarely, a swift, sweet smile. Bin Sukarja, who told the court he’d had no schooling at all, seemed as bewildered by the lengthy court proceedings as his co-accused. Both Indonesians would stand almost to attention every time the jurors entered or left the courtroom.
Since September 2008, some 600 people – nearly all Indonesians, and many of them fishermen – have been charged with people-smuggling offences. More than 250 crew and just five organisers have been convicted and jailed, mostly for at least three years. The mandatory punishment requirement leaves judges with no discretion to impose a lesser sentence to take into account mitigating factors.
Many judges privately rail against the sentencing regime. Humanitarian concerns aside, the cost of arresting and imprisoning the boat crews is huge: Queensland’s Attorney-General, Jarrod Bleijie, recently estimated that the trial and custody of people smugglers ran to half a million dollars each. But people smuggling is an incendiary issue in Australia, and politicians of all stripes have tried to win the public’s confidence with their hardline tactics to halt the boats crammed full of Afghans, Iraqis, Iranians and others. In 2009 Kevin Rudd, then prime minister, called people smugglers the “absolute scum of the earth” and the “vilest form of human life”.
It could be, though, that the mood in Australia is beginning to change. The Law Council of Australia’s Phillip Boulton told a Senate committee in March that the number of acquittals in people-smuggling cases had been steadily rising over the past year or so because jurors sometimes regard the laws as “fundamentally unfair”. “There is more than half a suspicion that some sympathy is being shown to these people once the jurors realise how insignificant a role they play and [that] they actually really do not understand the full extent of the criminality,” he said.
But could hired hands like bin Suwarno really have expected simply to off-load their passengers on an island and duck back to Java in a matter of days? In bin Suwarno’s case, the crown prosecutor pointed out that the fisherman might have suspected something was amiss when he was taken to a remote beach in the middle of the night, or when he found the passengers couldn’t speak Indonesian and were carrying large bags. Had he really not known why he was asked to throw the GPS navigation device into the sea as soon as Christmas Island was sighted on the horizon after a rough three-day voyage?
The jurors in courtroom LG2 didn’t get the chance to decide whether he knew what he was doing was illegal, or whether – even if he did – he deserved a prison term of at least three years. On day 15 of the proceedings, Judge Michael King decided the Indonesian translator used by the court had made a number of significant errors, including regularly interpreting tidak – ‘no’ in Indonesian – as ‘I wouldn’t know’ or, perhaps, as ‘I wouldn’t, no’. He discharged the jury and aborted the trial.
Bin Suwarno and his co-accused were sent back to jail. A new trial is scheduled to begin on 23 July, 21 months after the men were first locked up.