BRIDLE v Gomravi - [2005] SASC 295

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BRIDLE v GOMRAVI
Judgment of The Honourable Justice Gray
9 August 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 pleaded guilty to escaping immigration detention, section 197A Migration Act 1958 (Cth) - magistrate convicted the respondent and imposed a penalty of a recognizance in the sum of $100 to be of good behaviour for two years - 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 principles discussed in Morrison v Behrooz [2005] SASC 142 - consideration of legislative scheme of Migration Act and seriousness of offence of escape immigration detention - consideration of personal antecedents, including mental health, of respondent - consideration of significant period spent at large - consideration of sections 16A and 20 of Crimes Act 1914 (Cth).
Held - appeal against sentence allowed - magistrate erred in sentencing process - magistrate obliged to consider the legislative scheme of the Migration Act; seriousness of the offence of escaping immigration detention, the significance of period spent at large and the public interest in effective general deterrence - sentence imposed by magistrate set aside - appropriate to re-sentence respondent - consideration of further material relevant to sentence - regard had to scheme of Migration Act, seriousness of the offending, significant period spent at large, need for general deterrence and personal antecedents of the respondent - consideration of respondent's poor mental health - merciful approach warranted in circumstances - appropriate to proceed pursuant to section 20 Crimes Act 1914 (Cth) - respondent convicted and released pursuant to his entry into a recognizance to be of good behaviour for 3 years pursuant to section 20(1)(b) of the Crimes Act 1914 (Cth).
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.

BRIDLE v GOMRAVI
[2005] SASC 295
Magistrates…

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 BRIDLE v Gomravi

Details

AGLC: BRIDLE v Gomravi [2005] SASC 295
Case: [2005] SASC 295
Decision Date: 9 August 2005

CaseChat Overview and Summary

In the matter of the Crown v Gomravi, the High Court was asked to review the sentence imposed by a magistrate on the respondent, who had pleaded guilty to escaping immigration detention in breach of section 197A of the Migration Act 1958 (Cth). The Crown appealed the sentence, arguing that the magistrate had failed to properly consider the policy and purpose of the Migration Act, the seriousness of the offence, the need for deterrence, and that the sentence imposed was manifestly inadequate. The appeal hinged on the appropriateness of the sentence given the context of the offence and the respondent's personal circumstances, including his mental health issues.

The court needed to determine whether the magistrate had erred in his sentencing process by not adequately considering the legislative scheme of the Migration Act, the seriousness of the offence, the period the respondent had spent at large, and the public interest in effective general deterrence. Additionally, the court had to consider the personal antecedents of the respondent, particularly his mental health, in assessing the sentence.

The High Court held that the appeal against the sentence should be allowed, as the magistrate had indeed erred in the sentencing process. The court held that the magistrate was obliged to consider the legislative scheme of the Migration Act, the seriousness of the offence, the significant period spent at large, and the need for general deterrence. The court set aside the sentence imposed by the magistrate and decided to re-sentence the respondent, taking into account the legislative scheme of the Migration Act, the seriousness of the offending, the significant period spent at large, the need for general deterrence, and the personal antecedents of the respondent, including his mental health. The court concluded that a merciful approach was warranted in the circumstances and decided to release the respondent under a recognizance to be of good behaviour for three years.

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

Counsel for Mr Gomravi submitted that at the time of sentencing Mr Gomravi's personal circumstances were such that the sentence imposed by the magistrate was appropriate. There was evidence before the magistrate that the respondent’s application for a protection visa was under consideration by DIMIA. It was claimed that DIMIA was awaiting Mr Gomravi’s sentence in relation to the present offending before it was to issue a visa. A custodial sentence, it was claimed, could well jeopardise Mr Gomravi’s chance of obtaining a visa, which could 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.Conclusion The legislative scheme of the Migration Act makes it clear that unlawfully escaping from immigration detention is contrary to the policy and purpose of the Act. It is a serious offence, which attracts a penalty reflecting the need for general deterrence. Mr Gomravi committed an offence forming part of a legislative scheme aiming to regulate and control the entry and detention of illegal immigrants. The magistrate failed to pay due regard to this material factor and the need for general deterrence. Nor did he articulate his reasons for taking what can be described as a merciful or lenient approach to sentencing Mr Gomravi. In addition, the magistrate failed to pay adequate regard to the considerable period during which Mr Gomravi was at large. Mr Gomravi’s continuing and deliberate disregard for the law, even if explained by his mental health problems and perceptions of conditions of detention, was a material matter to be considered when sentencing. Although reference was made to this distinguishing feature by the sentencing magistrate, the serious nature of Mr Gomravi’s offending was not adequately addressed in the sentencing remarks or the penalty imposed. The sentencing magistrate erred in the process of sentencing. As a result, it is necessary for this Court to re-sentence Mr Gomravi.Re-sentenceFurther Facts Further material relevant to Mr Gomravi’s mental health and personal antecedents was before this Court during the hearing of this appeal. No objection was taken to this material being received. In the event that error occurred in the sentencing process, it was accepted that this Court should re-sentence having regard to all relevant material available at the time of re-sentencing. In a psychiatric report dated 30 December 2004 Dr Newman reported that Mr Gomravi had engaged in two suicide attempts during a period of one month and displayed symptoms of depression and anxiety with suicidal preoccupation. Dr Newman diagnosed Mr Gomravi with post-traumatic stress disorder and was of the view that he posed a high risk of further suicide attempts. It was said his condition was exacerbated by his partner’s death. Dr Newman reported that:Mr Gomravi has multiple somatic symptoms and symptoms of anxiety including episodes of intense anxiety with associated shortness of breath.…On mental state examination, Mr Gomravi presented as agitated and depressed with suicidal preoccupation. There were no psychotic symptoms.Mr Gomravi meets DSM-IV Diagnostic Criteria for Post Traumatic Stress Disorder and Major Depression and poses a high risk of further suicide attempts. His condition has been exacerbated by the death of his partner six months ago and his ongoing detention. He has now developed a significant Major Depression and is in need of psychiatric treatment and hospitalisation.

Ratio Decidendi

Legal Principle Established

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