Elder v Shojaee - [2005] SASC 285

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ELDER v SHOJAEE
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 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] SASC 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; Commissioner of Taxation v Baffsky (2001) 192 ALR 92; R v Wall [2002] NSWCCA 42, considered.

ELDER v SHOJAEE
[2005] SASC 285
Magistrates Appeal
GRAY J:
Introduction

This is a Crown appeal against sentence.
Mr Mehran Shojaee was charged with and pleaded guilty to the offence of escaping immigration detention contrary to section 197A of the Migration Act 1958 (Cth). On 1 December 2004 Mr Shojaee was sentenced pursuant to section 19B(1) of the Crimes Act1914 (Cth). He was discharged without conviction upon his entry into a recognisance in the sum of $100 to be of good behaviour for 12 months.
Circumstances of the Offending
The offending occurred on 29 March 2002 at Woomera Immigration Reception and Processing Centre, South Australia. An agreed summary…

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 Shojaee

Details

AGLC: Elder v Shojaee [2005] SASC 285
Case: [2005] SASC 285
Decision Date: 2 August 2005

CaseChat Overview and Summary

Elder v Shojaee involved the Crown appealing a sentence imposed by a magistrate on a respondent who pleaded guilty to escaping immigration detention under section 197A of the Migration Act 1958 (Cth). The magistrate had discharged the respondent without a conviction after the latter entered into a recognizance of $100 to be of good behaviour for two years. The Crown's appeal contested the sentence on several grounds, including that the magistrate failed to consider the policy and purpose of section 197A of the Migration Act, did not sufficiently regard the seriousness of the offence, and did not adequately address the need for deterrence. Additionally, the Crown argued that the sentence was manifestly inadequate.

The court examined the legislative scheme of the Migration Act, focusing on the seriousness of the offence of escaping immigration detention. It also considered the respondent's personal antecedents, including their mental health. The court further examined section 16A of the Crimes Act 1914 (Cth) and the sentencing process, alongside section 19B of the Crimes Act, which outlines a two-stage process in sentencing. The court concluded that the magistrate had erred in the sentencing process. It found that the magistrate was obliged to consider the legislative scheme of the Migration Act, the seriousness of the offence, and the public interest in effective general deterrence. Moreover, the magistrate needed to undertake the two-stage process required by section 19B of the Crimes Act.

The court found that while the magistrate's approach was merciful, it warranted reconsideration of the sentencing process. Ultimately, the court decided that the sentence imposed by the magistrate was appropriate and dismissed the Crown's appeal against the sentence. It found that the original sentence was suitable given the circumstances and that proceeding without recording a conviction was appropriate.

Orders