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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BOONSTOPPEL v Hamidi

Details

AGLC: BOONSTOPPEL v Hamidi [2005] SASC 248
Case: [2005] SASC 248
Decision Date: 1 July 2005

CaseChat Overview and Summary

The Court of Appeal considered an appeal by the Crown against a sentence imposed by a magistrate on a person who had escaped immigration detention. The respondent, Mr Hamidi, had not entered a plea to the offence of escaping immigration detention under section 197A of the Migration Act 1958 (Cth). The magistrate had discharged Mr Hamidi unconditionally under section 20BQ of the Crimes Act 1914 (Cth). The Crown appealed on several grounds, including that the magistrate had failed to give effect to the policy and purpose of the Migration Act, had paid insufficient regard to the seriousness of the offence and the need for deterrence, and that the sentence imposed was manifestly inadequate.

The Court of Appeal considered the legislative scheme of the Migration Act and the seriousness of the offence of escaping immigration detention. The Court also considered Mr Hamidi’s personal antecedents, including his poor mental health. The Court considered section 16A of the Crimes Act 1914 (Cth) and the sentencing process, as well as section 20BQ of the Crimes Act. The Court held that the appeal against the sentence should be allowed for the limited purpose of discharging Mr Hamidi 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.

The Court of Appeal concluded that 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.

Accordingly, the appeal was 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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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