People Smuggling: Indonesians Jailed in Australia...

People smuggling is a crime, perhaps a heinous crime. It is one that does not pay, particularly if you get caught in Australian waters. Australia has pretty serious consequences for those that are caught and successfully prosecuted. The minimum mandatory sentence for those convicted of people smuggling is five years. However, non-parole periods can be set, and this seems to be in the range of three years.

Four Indonesians have learned the seriousness of the consequences the hard way and have been sentenced to five years in prison. The Queensland Supreme Court in Brisbane has found the men were responsible for the trips of two boatloads of Afghanis, Kurds and Iranians to Australia. But, the court was clear that the men were not the orgainsers of the trips, rather they were recruited by others to do their dirty work.

Each of the passengers paid somewhere between AUD 5000 and AUD 15000 for their passage. The Indonesians, Ferry Irawan and Sali were caught off the Ashmore Reef and Anton Tambunan and Joko Sampurno were caught off Christmas Island on two separate boats. The Indonesians were paid about IDR 5 million for the voyages.

There are some 70 others awaiting their turn to make their way through the Australian court system for people smuggling offenses. So, it would seem that there will be plenty of others looking at the five-year minimum mandatory sentence.

The question that arises from all this is are minimum mandatory sentences enough to thwart people smugglers and stop the crime? Probably not. Let's face it, when there is an offer of 3, 4, 5 or 50 times what you would normally earn in a month, then it is fair to say that there will be plenty of poor and illiterate Indonesian fisherman that will not think twice about looking a "gift horse" in the mouth. Perhaps the answer is not the poor fisherman getting caught. Perhaps the answer is to work harder at identifying and arresting the core organisers of these people smuggling operations.

Then again, perhaps the answer is getting those countries were the people being smuggled transit to Australia to take the crime seriously enough to draft and enact legislation that puts in place significant penalties that are likely to deter individuals from becoming involved in people smuggling operations.

Hmmm...

The Law and Online File Sharing -- An Australian Example

This case is really interesting for a number of reasons, but paramount among these is that of a law being designed for a particular purpose being literally interpreted and nabbing an unlikely victim. Law enforcement in Australia is generally pretty good. Like all other places there are times when one shakes their head in disgust or disbelief at how laws are interpreted and applied. This might just be one of those occasions where statutory interpretation goes a little bit awry.

Chris Illingworth, a seeming harmless 61-year-old from Maroochydore in Queensland has been charged with distributing child abuse materials over the internet (video capture of the event and inset of Illingworth from here). Illingworth came across a video of a man swinging a child by the arms and thought it worthy of being republished on Liveleak (video sharing site). The man and child in question are part of a circus troupe form Russia (or at least that is the belief) and perhaps this is what the Russians do, start the training of their youngsters and future circus performers at a very young age.

It must be noted that Illingworth has no criminal history relating to child abuse of any kind. An extensive search by police of his home and his computers turned up no images that would violate any provisions of current law.

The video certainly shows the child being swung around. There are probably arguments to be made for and against how violent the swinging is. However, the video ends with a smiling and laughing child.

Where this gets a little scary is the involvement of "experts" who get to offer opinions based on watching a video and through no interview of the alleged victim. In this case the police called in a specialist pediatrician, Susan Cadzow, from Royal Brisbane Children's Hospital. Now, in Cadzow's expert opinion this video represents child abuse and although no injury appears apparent this is irrelevant as there might be hidden injuries that will not manifest until some later time.

If police are going to charge people for this and then the Office of Public Prosecutions is going to proceed with a prosecution, then Australians should be forewarned and thus forearmed that the long arm of the law is gunning for you with seemingly endless powers of interpretation. The law though is helpful to the police as child abuse material "is, or appears to be, a victim of torture, cruelty or physical abuse" where the victim is appears to be under the age of 18.

What is helpful to police about this definition is that it does not require actual abuse to be taking place, it just has to be perceived as abuse and the police can take action.

This begs the question, would a video of say a child contortionist undergoing training and being videoed and then this video is uploaded to the internet constitute child abuse? Or even where the contortionist is performing for money, wouldn't this be child exploitation and subsequently abuse?

So, what were the police thinking in this case and why did they decide to proceed?

It seems that Illingworth is going to become an interesting test case. Although, I am sure Illingworth would rather not be the centre of any test case. Unfortunately, for him this is what he has become.

The case will certainly set a precedent, at least in the Australian jurisdiction, as to what constitutes child abuse and the enforcement of the provisions as they relate to viewing and uploading child abuse material. If the prosecution succeeds on this, then Illingworth is potentially looking at doing up to a maximum of ten years in prison for uploading a couple of circus performers, one of who was under the age of 18.

Scary.