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In defence of accused people smugglers
Auskar Surbakti follows a legal team representing accused teenage people smugglers to West Java.

There's a rising chorus of questions about mandatory sentences for Indonesian boat crew convicted of people-smuggling offences in Australia.

Australian judges and lawyers say the mandatory five-year jail terms are punishing the wrong individuals, and preventing the apprehension of people smuggling kingpins.

Legal teams are going to great lengths to represent teenage sailors, embarking on trips to Indonesia to gather evidence on their behalf.
AUSKAR SURBAKTI, REPORTER: It's the start of yet another long journey for Australian lawyer David Svoboda

DAVID SVOBODA, LAWYER: A refugee who gets on a boat to try to get to Australia will have undertaken, on average, a six to eight week journey from his home.

AUSKAR SURBAKTI: He's on his way to a remote part of Indonesia to help build a case to defend an Indonesian client caught and charged by Australian authorities for people smuggling.

DAVID SVOBODA: The reason for this trip is to visit my client's home village. We want to inform the juries as much as possible as to the background of men who have been charged with people smuggling.

AUSKAR SURBAKTI: On this trip we're along for the ride. For legal reasons we can't reveal too much about David Svoboda's client because the alleged people smuggler is still awaiting trial.

But his case is among over 150 others involving Indonesian crew that are before the courts across the country. If found guilty, the men could face a mandatory minimum sentence of five years jail, with a three year non parole period.

DAVID SVOBODA: What the prosecutions have to prove in these cases is that these men had knowledge of Australia and Australian territorial issues and knowledge of asylum seeker issues, knowledge of visas and passports. And when you go to the villages that these men are from, it's very quickly evident that not such knowledge is just foreign to them.

AUSKAR SURBAKTI: These trips are being assisted by legal aid groups in Australia. They're costly, time consuming and exhausting, but they've proven to be an effective legal strategy.

DAVID SVOBODA: We've had all the clients that we've come over for in relation to trials have been acquitted. I would think that the material we put together, the culturally based material we put together for those trials, had some role in the acquittals that we've had.

STUART JAY RAJ, LANGUAGE AND CULTURAL EXPERT: So we're about to go in now to the house and speak with the parents and the family and just to see where he's come from and collect any documents and evidence that we can use to put the case together.

AUSKAR SURBAKTI: We're now in the client's home village in West Java.

MrSvoboda conducts many of these trips with cultural expert, translator and witness, Stuart Jay Raj. Together they're speaking to the family and friends of the accused taking notes, photographs and video of anything that might help them with their case.

It is often an emotional experience for the villagers, many of the men have been away for more than a year.

FEMALE FAMILY MEMBER (Translation): (Crying) He was at my home everyday. And now he's been missing for so long.

AUSKAR SURBAKTI: The families of the accused often don't know why their relatives have been arrested or what will happen to them.

It falls to the legal team to explain the situation to them. In this case, it is to the father of a man who has been detained for over a year.

STUART JAY RAJ (Translation): If he's found 'not guilty', he'll be released and according to the rules, it should all be done by the end of September. But if he's found 'guilty', the judge will have to hand down a sentence, in accordance with the law, of five years jail.

AUSKAR SURBAKTI: The father's response is a typical one.

FATHER: (Translation): I'm so sad because I don't get to meet my own son. I miss him so much. So I just really hope that he can get home as quickly as possible."

AUSKAR SURBAKTI: Well we'll do everything we can to get your son home to you.

Stuart Jay Raj claims that in some cases these families resort to extreme measures to cope with the absence of their son or brother.

STUART JAY RAJ: It's such a waste of their lives. Many of these people we've seen their wives and their children, because the bread winner is not here, they go into prostitution. They end up being domestic help and getting beaten and raped in Saudi Arabia and other places. So it's not just they've come in illegally they've got to go to prison, there are so many other people and things that affected because of it.

AUSKAR SURBAKTI: In all this is David Svoboda's sixth visit to Indonesia, representing around 13 clients.

So far nine people have returned to their home villages including three minors. Similar visits have been organised by lawyers around the country with the hope of giving a better insight into the lives of these men.

Six weeks later, David Svoboda is back in Brisbane. He has been busy handing over his findings ahead of a trial in September. And he's now taken on a new job with Queensland Legal Aid.

David Svoboda expects to be making more trips on behalf of other Indonesian men awaiting trial. And he thinks the number of cases will grow so long as mandatory minimum sentences remain the law in Australia.

DAVID SVOBODA: The reality now is that imprisoning impoverished Indonesian fishermen or villagers is not going to stop the continuing influx of boats into the country.

AUSKAR SURBAKTI: Australia's Director of Public Prosecutions says the cost of bringing these cases to trial will be around $14 million this financial year, up from $1.5 million in 2009 and 2010.

A Senate inquiry into mandatory sentences has found while they're appropriate for people smuggler organisers, the punishment is unjust for boat crew.

The Government says it will consider the recommendations and respond in due course as the many Indonesian men continue to wait for their day in court.
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