BOONSTOPPEL v Hamidi - [2005] SASC 248

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BOONSTOPPEL v HAMIDI
Judgment of The Honourable Justice Gray
1 July 2005
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE - ESCAPE - SENTENCING
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CHARACTER OF OFFENCE
CITIZENSHIP, IMMIGRATION AND EMIGRATION - IMMIGRATION STATUS - NON-CITIZENS - DETENTION AND REMOVAL FROM AUSTRALIA
Crown appeal against sentence imposed by magistrate - respondent did not enter plea to escaping immigration detention, section 197A Migration Act 1958 (Cth) - magistrate proceeded pursuant to section 20BQ Crimes Act 1914 (Cth) and discharged respondent unconditionally - Crown appealed on grounds that magistrate: failed to give effect to the policy and purpose of section 197A of the Migration Act; paid insufficient regard to the seriousness of the offence; paid insufficient regard to the need for deterrence; and that the sentence imposed was manifestly inadequate.
Consideration of legislative scheme of Migration Act and seriousness of offence of escape immigration detention - consideration of personal antecedents, including poor mental health of respondent - consideration of section 16A of Crimes Act 1914 (Cth) and the sentencing process - consideration of section 20BQ of Crimes Act.
Held - appeal against sentence allowed for limited purpose of discharging the respondent into the care of the Public Advocate on the condition that he comply with the lawful directions of the Public Advocate as to his proper medical treatment, day-to-day care, wellbeing and residence.
Migration Act 1958 (Cth) s 4, s 189, s 197A; Crimes Act 1914 (Cth) s 4J, s 16A, s 19B, referred to.
Morrison v Behrooz [2005] SASC 142; Shillabeer v Hussain [2005] SASC 198; Everett v The Queen (1994) 181 CLR 295; Police v Cadd (1997) 69 SASR 150; R v Knight (1986) 40 SASR 479; R v Shepperbottom (2001) 212 LSJS 486; R v Stokes [2001] NSWCCA 82; Bailey v Kupsch [1966] Tas R (NC 20); Commissioner of Taxation v Baffsky (2001) 192 ALR 92; Cobiac v Liddy (1969) 119 CLR 257; R v Briese [1998] 1 Qd R 487; Newcombe v Police [2004] SASC 26, considered.

BOONSTOPPEL v HAMIDI
[2005] SASC 248
Magistrates Appeal
GRAY J:
Introduction

This is a Crown appeal against sentence.
Abdul Amir Hamidi was charged with escaping immigration detention contrary to section 197A of the Migration Act 1958 (Cth). The offending occurred on 29 March 2002 at Woomera Immigration Reception and Processing Centre, South Australia.
On 1 December 2004 Mr Hamidi was discharged unconditionally by the sentencing magistrate pursuant to the provisions of section 20BQ of the Crimes Act 1914 (Cth).
An agreed summary of facts recounted the circumstances of Mr Hamidi’s offending:
Prior to an on 29 March 2002 a group of demonstrators arrived at Woommera and made a campsite in an open paddock approximately 450 metres from the Woomera Immigration Reception and Processing Centre.
About 6pm on 29 March 2002 approximately 250 protestors breached the restricted area of WIRPC. Protestors pulled down cyclone wire fences and flares were discharged which attracted the attention of detainees inside the Centre. Detainees in one part of the centre climbed onto the rooftops waving banners and chanting. Others breached inner perimeter fences and approached the outer palisade fence. Protestors pushed up against the palisade fence and handed wire cutters, pliers, a spanner and a pocket knife were thrown over the fence to detainees.
Subsequently the palisade fence was breached and 54 palings were damaged or removed. Detainees had removed volleyball posts and shade cloth supports and used these as levers to damage the fence. Detainees then escaped through the holes made with the assistance of the protestors and decamped the area. Detainees within WIRPC threw rocks at staff and advanced towards staff using the palings as weapons.
A total of 50 detainees escaped during the incident including Mr Hamidi.
Australian Protective Services staff and SAPOL officers patrolled the vicinity of Woomera searching for escapees and set up road blocks.
Mr Hamidi provided a version of the events leading up to his escape when interviewed by psychologist Mr Balfour. Mr Balfour reported:
Mr Hamidi said that on the day of the escape from Woomera Detention Centre, it was very crowed and everyone was crying. He said that he was crying and was lacerating himself with razor blades. He said that he was fed-up with being involved in demonstrations and cutting himself up each day. He said that he wanted to leave. He said the demonstrators opened up the fence.
Mr Hamidi said that everyone was climbing the perimeter fence and jumping over it and that he jumped as well. He said that he thought the detention was over and the people were there to help him. He said that the protestors took him in a car into the desert, gave him some basic provisions and left him there. He said they went to a road, hailed a car down and the Federal Police apprehended them.
Mr Hamidi reported being suicidal at the time of his escape. It was said that he had been engaging in acts of self-harm and was in a highly emotionally charged environment within detention. Mr Hamidi believed that his detention had come to an end and that the protestors had come to take the detainees away.
Personal Antecedents
At the time of sentencing Mr Hamidi was a 29 year old Iranian man. He arrived in Australia by boat on 1 June 2000 and had been in immigration detention since that date. He arrived at Woomera Immigration Reception and Processing Centre on 4 November 2001. Since December 2004, Mr Hamidi has been detained pursuant to section 12 of the Mental Health Act 1993(SA) at Glenside Hospital.
Mr Hamidi’s application for a visa was rejected. He appealed to the Refugee Review Tribunal in December 2000 and this appeal was refused in April 2001. In May 2001 Mr Hamidi appealed to the Federal Court. The Federal Court remitted the matter to the Refugee Review Tribunal in April 2002 and the Refugee Review Tribunal refused his appeal in August 2002. Mr Hamidi appealed to the Federal Court on 4 September 2002. The Federal Court dismissed the appeal in December 2002. Mr Hamidi then appealed to the Full Federal Court in January 2003. The Federal Court allowed the appeal and the Minister appealed to the High Court on 8 April 2003. The High Court gave leave to appeal on 14 August 2003 and allowed the appeal on 17 June 2004.
Mr Hamidi was born in Ahwaz in Iran. His family is Muslim. Mr Hamidi’s mother was said to have died some time during 2004. Mr Hamidi said that he grew up in a climate of fear due to persecution by the authorities in Iran and his experiences of family members being executed. Mr Hamidi has limited contact with his family in Iran by telephone. He has never been married or in defacto relationship and has no children.
Mr Hamidi does not speak conversational English, however he speaks Persian and Arabic. He can read and write in Persian. Mr Hamidi recalls attending school for few years. While in Iran Mr Hamidi worked as an apprentice with his brother in a blacksmith shop undertaking metal work. He had not completed his apprenticeship when he fled Iran.
In an interview with psychologist Mr Balfour, Mr Hamidi was unable to recall details of his life in Iran or articulate the reasons for coming to Australia. This was thought to be a consequence of his serious mental health problems and state of severe depression at the time of the interview. Despite this, Mr Hamidi was able to recall that prior to leaving Iran, he had come into conflict with the Iranian military as a result of belonging to a minority group of Arbas within Iran. Mr Hamidi recalled spending five months in custody in Iran prior to coming to Australia. During that period he said he was tortured. He believed that he would be executed if he were to remain in Iran.
Mr Hamidi has a criminal antecedent. He committed the offence of using violence against a person carrying out duties on behalf of the Commonwealth. In October 2001 he was sentenced to eight months imprisonment with five months to serve, upon release to enter into a bond to be of good behaviour for twelve months.
Mental Health History
In November 2004 Mr Balfour’s report concerning Mr Hamidi’s mental health was provided to the sentencing magistrate. In this report, Mr Balfour describes Mr Hamidi’s as suffering from a number of serious mental health problems, including severe depression, requiring urgent medical attention:
Mr Hamidi is severely depressed. He constantly experiences suicidal ideation. He thinks about how he may end his life and his suffering.
Within the report, Mr Balfour described Mr Hamidi’s symptoms leading to the diagnosis of severe depression. Certain topics, such as his mother’s death, appeared to trigger outward displays of distress, depression and grief.
Mr Hamidi said that while in Iran he was prone to depression. He feared for his own safety and for that of his family. Mr Hamidi told Mr Balfour that while in detention he had developed migraine headaches and experienced such headaches most days. This condition was being treated with medication. Mr Hamidi also described suffering abdominal injuries and bleeding from the bowel as a result of an incident that occurred while in detention where he claims to have been assaulted by detention centre staff. Mr Hamidi was also said to be prone to painful bladder infections. Mr Hamidi reported twice attempting to overdose having hoarded medication. As a result of these attempts he was hospitalised.
Mr Balfour’s report provided the following clinical opinion:
Mr Hamidi has developed PTSD [post traumatic stress disorder], panic anxiety, serious depression and is suicidal. His mental health problems have been exacerbated by the uncertainty of detention. He is fearful of authority due to his experiences of persecution by the Iranian authorities and military. His fear of authority in Austrlaia has been socially reinforced by being assaulted by security officers in detention and witnessing violence amongst other detainees. He has lapsed into a sate of learned helplessness due to having no effective control over his destiny.
I psychologically assessed eleven detainees for you at Baxter Detention Centre. I believe that Mr Hamidi’s mental health is then most severely damages of the group that I assessed. I believe that he urgently requires treatment in an inpatient psychiatric facility. I believe his ongoing risk of suicide is high and will become exacerbated in response to acute psychosocial stressors. He has already seriously lacerated his body and made two suicide attempts of high lethality by hoarding his medication and then taking an overdose. He experiences persistent suicidal ideation in the form of electrocuting himself on the security perimeter electric fence to end his suffering.
As will be discussed later in these reasons, the magistrate referred to part of this last paragraph during his brief sentencing remarks. Mr Balfour continued:
The prognosis regarding Mr Hamidi’s serious mental health problems is poor due to his uncertain immigration status, the stressors associated with indeterminate detention, and having access to limited treatment services for his mental health problems. The possibility remains that Mr Hamidi may attempt to escape again if he feels endangered within detention and an opportunity for escape become [sic] available.
The range of recommendations I can make regarding Mr Hamidi’s rehabilitation are severely limited by his circumstances in detention. I believe that he should be urgently psychiatrically reviewed to determine if he is detainable under the mental health act and requires inpatient psychiatric treatment. I believe that with prolonged indeterminate detention he will eventually succeed in committing suicide.
I believe that Mr Hamidi’s mental problems are severe enough to jeopardise his fitness to stand trial. I am particularly concerned about this psychogenic amnesia and how this will affect his ability to give sufficient and reliable legal instructions. I believe that it is important for him to have adequate treatment for his mental health problems to maximise his fitness to stand trial.
It was accepted by counsel for the Crown that at the time of sentencing, Mr Hamidi was suffering from serious mental health problems, including severe depression. Counsel also accepted that Mr Hamidi had a long history of self harm and attempted suicide.
Both parties had consented to proceedings to be dealt with summarily pursuant to section 4J of the Crimes Act.[1] As a result, Mr Hamidi was exposed to a maximum sentence of 12 months’ imprisonment.
[1] Section 4J of the Crimes Act 1914 (Cth) which relevantly provides
Proceedings before the Magistrate
Mr Hamidi did not enter a plea to the charge. The learned Chief Magistrate discharged Mr Hamidi unconditionally pursuant to section 20BQ of the Crimes Act. Mr Hamidi was sentenced at the same time as other detainees. With respect to Mr Hamidi the magistrate delivered the following remarks on penalty:
Yesterday I received a great deal of material relating to matters at Woomera, and I was aware previously of remarks made by Justice Kirby in the High Court. I am particularly familiar with a report from Lyn Bender and some remarks from Glenda Koutroulis that relate particularly to the conditions at Woomera. I made some remarks yesterday that also included comment about the use of numbers to describe people, the practice that has been criticised elsewhere. Mr Shajaee [sic] and Mr Ghorban, I have seen the reports that have been prepared in relation to you, and I am grateful for the preparation of those reports by Mr Balfour. Mr Balfour refers in another document to reviewing eleven detainee at Baxter and his reports in other matters were tendered to me yesterday.
…
I return Mr Hamidi to your matter. The medial material before me is both disturbing and has an air of urgency about it. The material before me includes the medical file from the department and the various notations of the health professionals. Mr Balfour says at page 10 –
“I psychologically assessed eleven detainees for you at Baxter Detention Centre. I believe that Mr Hamidi’s mental health is then most severely damages of the group that I assessed. I believe that he urgently requires treatment in an inpatient psychiatric facility. I believe his ongoing risk of suicide is high and will become exacerbated in response to acute psychosocial stressors.”
Those remarks in my view are sufficient to attract the powers that are contained within section 20 BQ of the Crimes Act. The Crown accept that you are at the moment suffering from a mental illness, I have received an outline of the facts alleged in the proceedings and it is necessary for me to consider whether it would be appropriate to deal with your under that provision or by making some other order. It would seem to me that it is important in making that decision, to refect on the urgency commented on by Mr Balfour, and to pay proper attention to the need to secure you adequate care. Subject to anything that is put to me by counsel I have in mind to dismiss the charge in accordance with section 20BQ Mr Hamidi, I dismiss the charge and direct that you be discharged unconditionally.
The magistrate’s remarks suggest that he took into account material tendered by counsel for Mr Hamidi related to general conditions of detention within Australia. However, no further reference was made regarding the content of the material received or its relevance to determining an appropriate sentence. No where in any of the sentencing remarks is there any discussion of the seriousness of the offence, the policy behind the legislation or the importance of general deterrence.
Legislative Scheme
Recently, this court handed down reasons for its decision in the matter of Morrison v Behrooz.[2] That matter involved very similar factual and legal circumstances of the present case. Behrooz concerned a Crown appeal against a sentence imposed by a magistrate for an offence of escaping immigration detention. In Behrooz the Court considered the detail the legislative scheme of the Migration Act.
[2] Morrison v Behrooz [2005] SASC 142; see also Shillabeer v Hussain [2005] SASC 198.
The policy behind section 197A of the Migration Act is to treat the offence of escaping immigration detention as a serious matter. By enacting this provision, and attaching a maximum penalty of five years imprisonment, the legislature intend to deter others from such behaviour. Such provisions were intended to facilitate the more effective management of inappropriate behaviour at detention centres, to discourage incidents of violent protests, assaults on officers and mass escapes occurring at detention centres. This is the policy behind the enactment of the offence contained in section 197A of the Migration Act. This policy is a material consideration when sentencing an offender under this section.
Behrooz also considered the seriousness of the offence contained in section 197A of the Migration Act, noting that it’s gravity was clear both from the legislative scheme of the Migration Act and the maximum penalty attached to the offence. It was observed that the legislation was amended in 2001 increasing the maximum penalty for escaping immigration from two to five years’ imprisonment. The explanatory memorandum suggests that the increased penalty was designed to increase the deterrent effect of the sentence to be imposed. The equating of an offence of escaping from migration detention with escaping from lawful custody is an indication of the seriousness with which the legislature viewed the offence. In Behrooz the court considered the case law dealing with escaping other forms of lawful custody,[3] demonstrating that although the seriousness of an escape depends upon the circumstances as well as the type of custody or detention from which the offender escapes, it is an important consideration when sentencing offending of this nature to demonstrate to all those in custody or detention that if they escape, imprisonment of sufficient length to act as a deterrent to others may result. [4]
[3].R v Shepperbottom (2001) 212 LSJS 486; R v Knight (1986) 40 SASR 479.
[4] See for example R v Stokes [2001] NSWCCA 82; Bailey v Kupsch [1966] Tas R (NC 20).
The Appeal
As earlier observed, this is a Crown appeal against sentence. The grounds of appeal advanced by counsel for the Crown were as follows:
-the magistrate erred in concluding that it would be more appropriate to deal with the respondent pursuant to section 20BQ than otherwise in accordance with law;
-the sentence imposed was manifestly inadequate;
-the magistrate failed to give effect to the policy and purpose of section 197A Migration Act; and
-the magistrate paid insufficient regard to the need for deterrence.
Preliminary Matters
A prosecution appeal against sentence may only be justified in the rare and exceptional case. This is because it puts in jeopardy the liberty of an offender for a second time. As observed in Everett v The Queen[5] and Police v Cadd, an appellate court should only intervene in circumstances where it is necessary to correct an error of sentencing principle, for the purpose of maintaining an appropriate degree of uniformity of sentencing or for the purpose of maintaining adequate sentencing standards.
[5] (1994) 181 CLR 295.

As noted in Behrooz, circumstances may arise in which an error in the sentencing process is established, however the final sentence imposed remains appropriate. In such a case, error of sentencing principle will be established, however the appeal against sentence will necessarily be dismissed.
Section 20BQ
As earlier observed, the sentencing magistrate dismissed the charge against Mr Hamidi without imposing any further penalty pursuant to section 20BQ of the Crimes Act. That section relevantly provides:
(1)Where, in proceedings in a State or Territory before a court of summary jurisdiction in respect of a federal offence, it appears to the court:
(a)     that the person charged is suffering from a mental illness within the meaning of the civil law of the State or Territory or is suffering from an intellectual disability; and
(b)     that, on an outline of the facts alleged in the proceedings, or such other evidence as the court considers relevant, it would be more appropriate to deal with the person under this Division than otherwise in accordance with law;
the court may, by order:
(c)     dismiss the charge and discharge the person:
(i)into the care of a responsible person, unconditionally, or subject to conditions, for a specified period that does not exceed 3 years; or
(ii)on condition that the person attend on another person, or at a place, specified by the court for an assessment of the first-mentioned person's mental condition, or for treatment, or both, but so that the total period for which the person is required to attend on that other person or at that place does not exceed 3 years; or
(iii)unconditionally; or
(d)     do one or more of the following:
(i)     adjourn the proceedings;
(ii) remand the person on bail;
(iii) make any other order that the court considers appropriate.
(2)Where a court makes an order under paragraph (1)(c) in respect of a person and a federal offence with which the person has been charged, the order acts as a stay against any proceedings, or any further proceedings, against the person in respect of the offence.
(3)Where a court makes an order under subsection (1) in respect of a person and a federal offence with which the person has been charged, the court must not make an order under section 19B, 20, 20AB or 21B in respect of the person in respect of the offence.
Section 20BQ authorises a diversionary approach in the case of mental illness. There appears to be little case law regarding this provision, however the language of section 20BQ requires the sentencing authority to undertake a two-stage process. It must first determine whether a defendant is suffering from a mental illness or an intellectual disability within the meaning of the provision. The sentencing authority is then required to consider whether, in light of all of the evidence before the court, it would be more appropriate it appropriate to deal with the person under this provision than otherwise in accordance with law.
Counsel for the Crown submitted that when considering this second stage of the enquiry, a sentencing authority is obliged to take into account the alternative options available and the considerations relevant to sentencing outlined in section 16A of the Act, including the seriousness of the offence and the need for general deterrence.
As earlier observed, unlike the other escapees sentenced on 1 December 2004, Mr Hamidi did not enter a plea to the charge of escaping immigration detention. It was submitted by counsel for Mr Hamidi that in such circumstances, and in light of Mr Hamidi’s serious mental health problems including his suicidal tendencies, it was appropriate for the magistrate to proceed to deal with Mr Hamidi pursuant to section 20BQ of the Crimes Act.
Counsel for the Crown submitted the sentencing magistrate erred in summarily disposed of the matter pursuant to section 20BQ of the Crimes Act. This course was opposed by counsel for the Crown at the time of sentencing. It was submitted that it was not appropriate to deal with Mr Hamidi under section 20BQ having regard to the seriousness of the offending and his prior conviction and sentence.
Although the Crown accepted that Mr Hamidi was suffering from a mental illness, the Crown did not accept that on the basis of the medical evidence before the sentencing magistrate Mr Hamidi was unfit to plea. The magistrate noted that Mr Hamidi did not enter a plea and referred to the remarks of Mr Balfour when deciding to proceed pursuant to section 20BQ. However, there was no positive finding was that Mr Hamidi was unfit to plea.
Counsel for the Crown submitted that the seriousness of the offence is a factor that the sentencing authority ought to consider when determining whether it is appropriate to proceed pursuant to one of the options under section 20BQ. Counsel for the crown was said that the seriousness of the offending may militate against a finding that proceeding pursuant to section 20BQ will be appropriate in all the circumstances of the offending. It was said that in the present case, Mr Hamidi’s intentional escape from immigration in the context of a violent, large scale demonstration, the period spent at large and his prior conviction are material matters that suggest his conduct was of a serious nature. This is further supported by the legislative scheme of the Migration Act and the intention of Parliament that escaping immigration detention be regarded as a serious offence. Counsel submitted that the sentencing magistrate erred in failing to have regard to the seriousness of Mr Hamidi’s offending and his prior conviction.
Counsel for the Crown further submitted that when considering whether it is appropriate to proceed pursuant to section 20BQ, regard ought to be had to the other options for sentence provided by the Crimes Act. Such options include a psychiatric probation order, section 20BV, or appropriate conditions attached to a recognizance release order, section 20(1)(b). It was said that the sentencing magistrate made no mention of such alternatives when assessing the suitability of an order pursuant to section 20BQ. It was submitted that the magistrate erred in failing to weigh up the options as required by section 20BQ.
Did the Magistrate Err?
In Behrooz, the court considered the legislative scheme behind the Migration Act. It discussed the policy of discouraging violence, assaults and escapes in the management of detention centres underlying s179A. The need to discourage such acts is a material consideration when sentencing.
Despite Mr Hamidi’s serious mental health problems, his actions at the time of the escape have been described as intentional and premeditated. Mr Hamidi was at large in the company of another escapee for around three days. The two were located about 50 kilometres from Port Augusta with supplies, map, compass and money in their possession. This suggests at least some degree of prior planning was involved in the escape.
The magistrate’s approach led to a situation where he failed to have regard to the policy considerations underlying the legislation on the important question of general deterrence. Even if there were compelling health reasons to proceed dismissing the charge unconditionally it was important for the magistrate to explain why those issues outweighed other important sentencing considerations.
There appears to be little authority on the application of section 20BQ, however, the language of section 20BQ and its relationship with section 19B of the same Act suggests that its scope is limited to circumstances where no plea has been entered.[6]
[6] See Morrison v Behrooz [2005] SASC 142 at [44].
Counsel for Mr Hamidi submitted that it was appropriate to have regard to his client’s personal circumstances, including the conditions of his detention at Woomera Immigration Reception and Processing Centre, and in particular of his poor mental condition. It was said that given Mr Hamidi’s serious mental health problems it was appropriate for the magistrate to have taken a merciful approach when sentencing Mr Hamidi. It was said that there was ample justification for the magistrate’s exercise of discretion under section 20BQ, in particular:
-    evidence that at the time of sentencing Mr Hamidi was suffering from a major depressive illness and post traumatic stress disorder contributed to by his unnecessary, protracted detention;
-    evidence that at the time of sentencing Mr Hamidi was suicidal and required constant medical observation to ensure he did not engage in acts of self harm
-    the nature of the offending which involved no violence, no damage to property, no resistance, repentance and voluntary surrender.
It was pointed out that there was evidence before the magistrate that Mr Hamidi’s application for a protection visa was under consideration by the Department of Immigration. It was claimed that the Department was awaiting Mr Hamidi’s sentence in relation to the present offending before it was to issue a visa. It was suggested that the sentence imposed might affect the Department’s decision to grant a visa. A conviction, it was claimed, could well jeopardise Mr Hamidi’s chance of obtaining a visa which may result in his deportation to a country in which he was liable to be executed. This was said to be a relevant matter when considering the appropriate sentence to impose.
As earlier observed, in the present case the magistrate proceeded pursuant to section 20BQ and released Mr Hamidi unconditionally. The material before the sentencing magistrate, in particular the medical evidence recording Mr Hamidi’s severe mental health problems, was more than sufficient to satisfy the first stage in the process required by 20BQ. However, by releasing Mr Hamidi unconditionally, without due consideration to general matters relevant to sentencing including as to the seriousness of the offence and general deterrence and without regard to Mr Hamidi’s need for supervision upon release, the magistrate failed to adequately consider the second stage required by section 20BQ. It was inappropriate in the circumstances to release Mr Hamidi unconditionally. His mental health problems demanded a level of intervention.
Further Facts
Further material relevant to Mr Hamidi’s personal antecedents was placed before this Court during the hearing of this appeal. No objection was taken to this evidence being received.
Counsel for Mr Hamidi informed the court that Mr Hamidi continued to be detained at Glenside Hospital pursuant to section 12 of the Mental Health Act since sentencing. Counsel submitted that his mental health problems remain severe.
Counsel for Mr Hamidi provided the court with numerous progress notes complied by Baxter Detention Centre regarding Mr Hamidi for the period from January 2004 to February 2005. These notes record that in early 2004 Mr Hamidi was isolating himself, refusing to speak with medical staff and may have been engaging in acts of self harm. During March 2004 Mr Hamidi was placed on hourly observations for fear of self-harm. The notes report that during the period from January 2004 to February 2005 Mr Hamidi had engaged in numerous hunger strikes and often sewed his lips together.
Mr Hamidi’s comes before the court as a severely mentally ill man who has experienced long periods of detention and is currently detained in Glenside Hospital. His experiences in Iran and in Australia, without embarking into an enquiry into the standards of conditions of detention, suggest that for many years he has existed in a state of severe depression and has been almost continually suicidal. In such circumstances, the rehabilitative objects of sentencing are unlikely to be met by the imposition of a custodial sentence. Similarly, when a person is of such poor mental health, it is unlikely that the deterrent and punitive objects of sentencing will be met by the imposition of such a penalty. This is not to detract from the need for the sentencing process to address the serious of the offending and the need for general deterrence, however, it does suggest a merciful approach may be warranted.
Conclusion
It was appropriate for the magistrate to dismiss the charge against Mr Hamidi pursuant to section 20BQ of the Crimes Act 1914. Mr Hamidi’s personal circumstances, in particular his severe mental illness satisfied the requirements of section 20BQ. However, it was inappropriate to proceed to release Mr Hamidi unconditionally.
Mr Hamidi’s mental health problems require treatment and supervision. The nature of his offending behaviour, attributed at least in part to his mental health problems, gives rise to the need for something more than an unconditional release. The community has an interest in the rehabilitation of offenders. Such rehabilitation in Mr Hamidi’s case requires a level of intervention and supervision.
This appeal is allowed. Mr Hamidi is to be discharged into the care of the Public Advocate for a period of three years on the condition that he complies with the lawful directions of the public advocate as to his proper medical treatment, day-to-day care, wellbeing and residence.

(1) Subject to subsection (2), an indictable offence (other than an offence referred to in subsection (4)) against a law of the Commonwealth, being an offence punishable by imprisonment for a period not exceeding 10 years, may, unless the contrary intention appears, be heard and determined, with the consent of the prosecutor and the defendant, by a court of summary jurisdiction.
…
(3) Subject to subsection (6), where an offence is dealt with by a court of summary jurisdiction under subsection (1), the court may impose:
(a) where the offence is punishable by imprisonment for a period not exceeding 5 years—a sentence of imprisonment for a period not exceeding 12 months or a fine not exceeding 60 penalty units, or both; or
(b) where the offence is punishable by imprisonment for a period exceeding 5 years but not exceeding 10 years—a sentence of imprisonment for a period not exceeding 2 years or a fine not exceeding 120 penalty units, or both.