Elder v Said - [2005] SASC 286

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ELDER v SAID
Judgment of The Honourable Justice Gray
2 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 discharged respondent without conviction upon his entry into 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 legislative scheme of Migration Act and seriousness of offence of escape immigration detention - consideration of personal antecedents, including mental health, of respondent - consideration of section 16A of Crimes Act 1914 (Cth) and the sentencing process - consideration of section 19B of Crimes Act and the two-stage process.
Held - magistrate erred in sentencing process - magistrate obliged to consider the legislative scheme of the Migration Act; seriousness of the offence of escaping immigration detention and the public interest in effective general deterrence - magistrate obliged to consider the circumstances of the escape - magistrate obliged undertake the two-stage process required by section 19B of the Crimes Act - appropriate to re-sentence respondent - merciful approach warranted in circumstances - appropriate to proceed without recording conviction - sentence imposed by magistrate appropriate - appeal against sentence dismissed.
Migration Act 1958 (Cth) s 197A; Crimes Act 1914 (Cth) s 4J, s 19B, referred to.
Morrison v Behrooz [2005] SASC 142; Shillabeer v Hussain [2005] SASC 198; Police v Kakar; Elder v Kakar [2005] 222; 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; Conmmissioner of Taxation v Baffsky (2001) 192 ALR 92; R v Wall [2002] NSWCCA 42, considered.

ELDER v SAID
[2005] SASC 286
Magistrates Appeal
GRAY J:
Introduction

This is a Crown appeal against sentence.
The respondent, Aref Said, pleaded guilty to a charge of 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. Mr Said has also been known as Syed Aref and is referred to in the magistrate’s reasons as such.
Circumstances of the Offending
An agreed summary of facts recounted the circumstances of Mr Said’s offending:
Prior to and on Friday 29 March 2002 a group of demonstrators, protesting against the detention of refuges at the WIRPC, arrived at Woomera and made a campsite in an open paddock approximately 450 metres south of the WIRPC.
At about 6.00pm on Friday 29 March 2002 approximately 250 protestors breached the restricted area. They crossed open paddocks until they reached an unoccupied compound on the southern side of the road opposite the Detention Centre where a number of protesters pulled down the cyclone wire fences. At the same time a number of flares were discharged whilst other protestors waved flags. These actions incited the detainees within the centre with detainees climbing on rooftops, waving banners and chanting. Detainees breached the inner perimeter fences and entered the sterile zone between the cyclone wire fence and the outer palisade fence.
The protestors made their way from the overflow compound and went to the southern side of the Detention Centre approximately 40 metres west of the main entrance.
The protestors pushed up against the palisade fence and about 70-90 detainees arrived in the sterile area adjacent to the protestors. Both the protestors and the detainees began a noisy demonstration with detainees climbing and shaking the palisade fence. A number of small hand tools including wire cutters, pliers, a spanner and pocket knife was [sic] thrown over the palisade fence by the protestors. The detainees attempted to breach the palisade fence using this equipment.
A short time later the outer palisade fence was breached in two places with numerous palisade palings being damaged or removed. Detainees had removed volley ball posts and shade cloth supports (galvanised pipe with concrete attached to the bottom) and used these as levers to damage the palisade fence. A number of detainees escaped through holes made with the aid of protestors and decamped the area. Detainees within the Detention Centre continued to throw rocks at ACM staff and advanced towards staff with weapons including palisade palings as spears, steel posts, sling shots and other weapons. Detainees escaped.
APS and South Australia Police (SAPOL) recaptured some detainees shortly after their escape. A number of protestors were also arrested by SAPOL and taken to the Woomera Police station. When order and control was restored, staff from the medical centre treated staff and detainees for minor injuries.
A total of 50 detainees escaped, including … [Mr Said].
…
In relation to [Mr Said] – details of his recapture are not known, however SA Police records show that he was charged at 10.43pm on 29 March 2002 at Port Augusta Police Station.
On Mr Said’s account, he left the centre with other detainees. He walked through a hole in the fence and followed the protestors and the other detainees towards the campsite that the protestors had created. Counsel for Mr Said submitted that Mr Said had only been outside of immigration detention for around five minutes before being recaptured. It was said that he was recaptured whilst in the car park of the Woomera Immigration Reception and Processing Centre.
Personal Antecedents
Mr Said arrived in Australia in 2001 and has been in detention since his arrival. Upon arrival in Australia he was sent to Port Hedland for approximately one month, then to Woomera Immigration Reception and Processing Centre and following this, Baxter Detention Centre.
Mr Said was born in Afghanistan and is aged approximately 25 years. He is a Shi’ite Muslim. Mr Said did not receive any formal education while in Afghanistan and remains illiterate. He was employed selling cars with his father. He is married but has no children.
Mr Said fled Afghanistan due to fear of ethnic and religious persecution by the Taliban. He believes his brother was abducted by the Taliban. Mr Said continually worries about his family’s safety.
Mr Said has had his visa application rejected on four occasions. On one occasion the rejection of his application was appealed to the High Court. At the time of sentencing before the magistrate, Mr Said was unaware of the status of his visa applications. Mr Said currently resides at Baxter Detention Centre.
A report compiled by psychologist Mr Balfour dated 25 November 2004 was tendered before the magistrate. Mr Balfour reported that Mr Said has “coped poorly with the unique stressors associated with detention”. It was reported that whilst in detention Mr Said developed stress-related migraines and post-traumatic stress disorder. He also suffers from a major depressive illness. Mr Said has participated in numerous hunger strikes, some involving the sewing together of his lips, whilst in detention and has reported feeling continually depressed and sometimes suicidal.
Counsel for Mr Said put before the sentencing magistrate a letter dated 2 October 2001 from psychologist Dr O’Neill concerning Mr Said’s mental health. Dr O’Neill observed an interview conducted between employees of the Immigration Department and Mr Said. In her letter she said:
I was concerned about the level of this person’s comprehension and ability to respond, both in the history and in our session. I administered the non-verbal test – Raven Coloured Matrices – to attempt an estimate of his reasoning powers. This test has a ceiling age of eleven years six months and is essentially culture-free. ... He registered at around the 9-10 year level.
Proceedings before the Magistrate
Both parties consented to the proceedings being dealt with summarily pursuant to section 4J of the Crimes Act. As a result, Mr Said was exposed to a maximum sentence of 12 months imprisonment in respect of each offence.
Mr Said was sentenced at the same time as two other detainees. In relation to Mr Said, the magistrate delivered the following remarks on penalty:
You have each pleaded guilty to these various escapes. The facts are quite brief. In each instance you escaped from detention with the assistance of protestors. You were in the presence of those people for a period. In some instances you were then abandoned by those people, and your counsel is critical of your abandonment. Having been then detained you were in custody on these matters before being returned to immigration detention. It is really not possible in the scope of these reasons to canvass all of the material provided to me. I am very mindful of the material that is before me that relates to conditions at Woomera, I am particularly mindful of the very detailed and helpful reports by Mr Balfour.
The issue of the regime has been commented on particularly by Justice Kirby in the High Court in his remarks in the matter of Behrooz particularly at paragraph 97. Those remarks tend to echo the material that is present today from Justice Bhagwati and the other material provided to me by your counsel.
I had a brief discussion with your counsel as to whether the court is able to proceeded [sic] pursuant to Section 20BQ of the Crimes Act, this issue may become important but it is important to note that each of you have entered a plea of guilty to these charges. In my opinion section 19B of the Crimes Act is available where the charge has been proved. In my opinion the charge here has been proved on the plea of guilty. In my opinion Section 20BQ is not now available. There are many similarities between the three of you particularly as far as your health is concerned.
...
The same is true of you Mr Aref, and you Mr Hossain [sic]. In your case Mr Balfour describes you as suffering from a major depressive illness and post traumatic stress disorder. The Crown concedes that is so in each of your cases.
…
Mr Aref, Dr Marie O’Neill an extraordinarily experienced psychiatrist saw you prior to or in connection with the Federal Court appearance, she described your level of comprehension at being around nine to ten year level. You were attempting to deal with matters of complexities in the Federal Court. You were married before coming to Australia, you were only married for a year and a half and you have had no direct contact with your wife since you left Afghanistan, and you told Mr Balfour that you had become ill because you were worried about your wife. Mr Balfour said that you had developed post traumatic stress disorder in response to being exposed to traumatic events in Afghanistan. He describes you as suffering from a major depressive illness. He says your prognosis is poor while you were in indeterminate detention. These cases are difficult cases and your particular circumstances evoke a great deal of sympathy. I repeat that I am particularly mindful of the diagnosis arrived at by Mr Balfour an experienced psychologist, after spending a considerable amount of time in the interview process.
…
In connection with you Mr Aref, and you Mr Hossain, similarly, on the single counts to which you have pleaded guilty you will each be discharged without conviction on entering into a bond in the sum of $100 to be of good behaviour for 12 months.
The magistrate’s remarks suggest that he took into account material tendered by counsel for Mr Said, related to general conditions of detention within Australia. However, the magistrate did not refer to the content of that material or identify its relevance to sentence.
In the course of his sentencing remarks, the magistrate did not discuss the seriousness of the offence, the policy behind the legislation or the importance of general deterrence.
Recently, reasons were delivered in the matters of Morrison v Behrooz,[1] Shillabeer v Hussain,[2] and Police v Kakar; Elder v Kakar.[3] Those cases concerned Crown appeals against a magistrate’s sentence for an offence of escaping immigration detention and involved factual and legal circumstances with some similarities to the present case.
[1] [2005] SASC 142.
[2] [2005] SASC 198.
[3] [2005] SASC 222.
In Behrooz this Court considered in detail the legislative scheme of the Migration Act. The observations made in Behrooz are incorporated as part of these reasons.
The legislature amended the Migration Act in 2001, increasing the maximum penalty for escaping immigration detention from two to five years imprisonment. The explanatory memorandum suggests that the increased penalty was designed to increase the deterrent effect of the sentence by equating the offence of escaping from migration detention with escaping from lawful custody. In Behrooz the court considered the case law dealing with escaping other forms of lawful custody.[4] It was concluded that the seriousness of an escape depends upon the circumstances and type of custody or detention. However, the sentence should, where possible, deter those in custody or detention from escaping. [5]
[4] [2005] SASC 142 at [30]-[36]. See also R v Shepperbottom (2001) 212 LSJS 486; R v Knight (1986) 40 SASR 479.
[5] See for example R v Stokes [2001] NSWCCA 82; Bailey v Kupsch [1966] Tas R (NC 20).
The Appeal
The grounds of appeal advanced by counsel for the Crown were as follows:
-the magistrate failed to give effect to the policy and purpose of section 197A of the Migration Act;
-the magistrate paid insufficient regard to the seriousness of the offence;
-the magistrate paid insufficient regard to the need for deterrence; and
-the sentence imposed was manifestly inadequate.
This is a Crown appeal against sentence. Such appeals can only be justified in the rare and exceptional case as they act to put the liberty of an offender in jeopardy for a second time. As observed in Everett v The Queen[6] and Police v Cadd,[7] an appellate court should only intervene in circumstances where it is necessary to correct material sentencing error, to maintain an appropriate degree of uniformity of sentencing or to maintain adequate sentencing standards.
[6] (1994) 181 CLR 295.
[7] (1997) 69 SASR 150.
As noted in Behrooz, even where an error in the sentencing process has been identified, the final sentence imposed may remain appropriate. In such a case, an appeal court may identify and correct the error of sentencing principle but dismiss the appeal against sentence.[8]
[8] [2005] SASC 142 at [26].
The Policy and Purpose of the Migration Act
When sentencing Mr Said, the magistrate was obliged to consider the legislative scheme of the Migration Act, including the seriousness of the offence of escaping immigration detention and the public interest in effective general deterrence.
In the present case, by failing to pay due regard to or even mention the need to address the principle of deterrence or the seriousness of the offence, the sentencing process miscarried. As observed by the New South Wales Court of Criminal Appeal in Wall[9] and more recently by this Court in Behrooz, Hussain and Kakar, as the magistrate failed to mention the seriousness of the offending or the need for deterrence anywhere in his remarks, it could be inferred that these matters were overlooked. Mr Said’s escape occurred in the company of other detainees and in the context of a mass demonstration. The escape involved the deliberate leaving of immigration detention without lawful authority.
[9] [2002] NSWCCA 42 at [83]-[86].
The magistrate’s approach led to a situation where he failed to have regard to the policy considerations underlying the legislation and the important question of general deterrence. Even if there were compelling health and other reasons to proceed without conviction it was important for the magistrate to explain why those issues outweighed other important sentencing considerations.
Section 19B
The magistrate proceeded to sentence Mr Said pursuant to section 19B of the Crimes Act. This section requires the sentencing authority to undertake a two-stage process: first, to ascertain whether one or more of the factors identified in section 19B(1)(b) exist and second, to determine, if appropriate, that having regard to the factor or factors so identified, whether it is expedient to inflict any punishment or to reach one of the other conclusions for which section 19B provides. These issues are discussed fully in Behrooz.
The magistrate did not undertake the two-stage process required by section 19B and, as a result, the sentencing process miscarried. In particular, the magistrate did not take into account the legislative regime underlying the offence, the seriousness of the offence and the need for general deterrence when proceeding pursuant to section 19B. The sentencing magistrate erred in the process of sentencing Mr Said. As a result, it is necessary for this Court to consider re-sentencing Mr Said.
Re-sentence
Section 19B Discretion
On the hearing of the appeal counsel for the Crown accepted that the first stage of the section 19B process had been satisfied. The discretion to proceed pursuant to section 19B was enlivened by Mr Said’s character, his antecedents, cultural background, age and mental health. In particular, there was medical evidence before this Court indicating that Mr Said suffered a major depressive illness and had significantly reduced cognitive functioning. These factors must be considered along with all other relevant matters in deciding whether to exercise the enlivened discretion in favour of Mr Said.
As observed in Behrooz, regard must be had to the strong public interest in the need to deter others from this type of offending. The policy of the Migration Act makes it clear that the detention of unlawful immigrants and orderly operation of immigration detention centres constitutes a material consideration when sentencing offending under section 197A.
There is also a public interest in offenders, particularly offenders of otherwise good character, being successfully rehabilitated. When re-sentencing Mr Said, it is appropriate to have regard to the effect that the sentence may have on his future rehabilitation.
Other than the offending the subject of the present appeal, Mr Said appears to be of good character. The medical evidence suggests that he is receiving treatment for his mental health condition. These are material matters to consider when sentencing and suggest that Mr Said would be a good candidate for rehabilitation.
As earlier observed, at about 6pm on 29 March 2002, Mr Said escaped from the Woomera Immigration Reception and Processing Centre. The escape did not involve any personal violence. The escape had the hallmarks of being unplanned. On the agreed statement of facts it is reported that the details of Mr Said’s recapture were not known. Police records show that he was charged at 10.43pm on 29 March 2002. This suggests that Mr Said was at large for no more than about four and a half hours. The relatively short period spent at large is a material matter to consider when sentencing.

The inherent jurisdiction of this Court to grant leniency is well established and was discussed at length by this Court in Behrooz.[10] Mr Said’s personal circumstances and significant mental health problems coupled with the circumstances of his offending and the short period spent at large call for the taking of a merciful approach.
[10] [2005] SASC 142 at [46]-[49].
Mr Said described his detention as a constant source of frustration and depression. His experience of indeterminate detention in such conditions has been referred to in the medical evidence as a source of his mental health condition and suicidal tendencies.
Material describing Mr Said’s perception of the conditions of his detention is relevant to his mental health history. While Mr Said’s mental health history does not excuse his behaviour, it does provide an explanation for his conduct and suggests that his criminal culpability is materially diminished.
In addition to Mr Said’s mental health problems, regard must be had to his prospects for future rehabilitation. A conviction or immediate custodial term of imprisonment could have significant detrimental effects on Mr Said’s opportunities to participate meaningfully in the Australian community.
The short period spent at large, the evidence of Mr Said’s past and present mental condition, in particular his limited cognitive ability, his lengthy period in a mental institution, his personal circumstances and his good prospects for rehabilitation indicate that it would be inappropriate to proceed to record a conviction or to impose a custodial sentence.
Having regard to all of the above factors, I am satisfied that to proceed without recording a conviction was the appropriate course. Despite the error in the sentencing process identified above, the sentence imposed by the magistrate, namely release without conviction upon the entry into a bond to be of good behaviour, was appropriate.
The appeal against sentence is dismissed.