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…

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 Elder v Said

Details

AGLC: Elder v Said [2005] SASC 286
Case: [2005] SASC 286
Decision Date: 2 August 2005

CaseChat Overview and Summary

In the case of Elder v Said, the Crown appealed against the sentence imposed by a magistrate on Mr Said, who had pleaded guilty to escaping immigration detention in contravention of section 197A of the Migration Act 1958. The magistrate discharged Mr Said without a conviction, imposing a recognizance of $100 to be of good behaviour for two years. The Crown argued that the magistrate had erred in the sentencing process by failing to consider the policy and purpose of the Migration Act, the seriousness of the offence, the need for deterrence, and that the sentence was manifestly inadequate.

The court examined the legislative scheme of the Migration Act and the seriousness of the offence of escaping immigration detention, along with Mr Said’s personal antecedents, including his mental health issues. The court also considered the sentencing process under section 16A of the Crimes Act 1914 and the two-stage process required by section 19B of the same Act. The court found that the magistrate had not correctly applied the sentencing process under section 19B, leading to a miscarriage in the sentencing process.

The court held that the magistrate had erred in the sentencing process, as they were obliged to consider the legislative scheme of the Migration Act, the seriousness of the offence of escaping immigration detention, and the need for general deterrence. The magistrate also needed to undertake the two-stage process required by section 19B of the Crimes Act. Despite the error in the sentencing process, the court found that the sentence imposed by the magistrate was appropriate, and the appeal against the sentence was dismissed. The court emphasised that even where an error in the sentencing process has been identified, the final sentence imposed may remain appropriate, and an appeal court may identify and correct the error of sentencing principle but dismiss the appeal against sentence.

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

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Ratio Decidendi

Legal Principle Established

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-sentenceSection 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.