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 of facts recounted the circumstances of Mr Shojaee’s offending:
Prior to and on 29 March 2002 a group of demonstrators arrived at Woomera and made a campsite in an open paddock approximately 450 metres from the Woomera Immigration Reception and Processing Centre.
About 6pm on 29 March 2002 approximately 250 protestors breached the restricted area of WIRPC. Protestors pulled down cyclone wire fences and flares were discharged which attracted the attention of detainees inside the Centre. Detainees in one part of the centre climbed onto the rooftops waving banners and chanting. Others breached internal fences and approached the outer palisade fence. Protestors pushed up against the palisade fence and handed wire cutters, pliers, a spanner and a pocket knife were thrown over the fence to detainees.
Subsequently the palisade fence was breached and 54 palings were damaged or removed. Detainees had removed volleyball posts and shade cloth supports and used these as levers to damage the fence. Detainees then escaped through the holes made with the assistance of the protestors and decamped the area. Detainees within WIRPC threw rocks at AMC staff and advanced towards staff using the palings as weapons.
A total of 50 detainees escaped during the incident including Mr Shojaee.
Australian Protective Services staff and SAPOL officers patrolled the vicinity of Woomera searching for escapees and set up road blocks.
At about 4.25am on 30 March 2002 a Victorian registered vehicle REF 050 was stopped at a roadblock on the Woomera to Roxby Downs Road 50 kilometres north of Woomera. The vehicle was driven by [a protestor] and Mr Shojaee and two other detainees, … were located inside the vehicle.
Mr Shojaee provided an account of the incident when interviewed by a psychologist. That account is summarised in a psychological report dated 30 January 2004. Mr Shojaee reported that during the Woomera Immigration Reception and Processing Centre protests he climbed on the first part of a fence railing. At that point he decided to escape. He believed the protestors were doctors and lawyers coming to assist the detainees. After he decided to escape he felt he could not go back. He said the scene was very chaotic and that he kept changing his mind. Mr Shojaee was later found on the road to Roxby Downs.
Personal Antecedents
Mr Shojaee was born in Iran on 22 September 1975. He is a Shi’te Muslim and speaks Farsi and limited English. He has never married. Mr Shojaee completed approximately nine years of schooling in Iran. After leaving school he was employed as a motor mechanic.
Mr Shojaee described his life in Iran as difficult. His father was executed by the Islamic regime in 1980 when he was five years of age. Mr Shojaee’s mother, stepfather and siblings remain in Iran. In 1999 Mr Shojaee was involved in an altercation with Iranian police. Upon his arrest, it was discovered that Mr Shojaee had not attended compulsory military service, usually undertaken at the age of 19. Mr Shojaee was charged with assaulting an army officer and evasion of compulsory military service and was sentenced to eight months imprisonment at Ghods prison in Ahvaz, Iran.
Upon his release, Mr Shojaee became involved in anti-government demonstrations. Following his participation in the demonstrations, his family home was raided and his younger brother taken into custody. This prompted Mr Shojaee to surrender himself to the authorities. He was subsequently detained for five months in what Mr Shojaee described as an isolated dark cell and was periodically tortured. Upon his release, Mr Shojaee undertook military service. Fearing for his safety, he approached a smuggler to organise his escape from Iran. Mr Shojaee reported that he was sexually and physically abused during time spent in custody and during military service. Mr Shojaee fears he will be killed and his family harmed if he returns to Iran.
Mr Shojaee arrived in Australia on 31 December 2000. Since that time he has been detained in Curtin Detention Centre in Western Australia, Woomera Immigration Reception and Processing Centre in South Australia and Baxter Immigration Detention Facility in South Australia.
Upon arrival in Australia Mr Shojaee applied for a protection visa under the Migration Act. His application was refused. He appealed to the Federal Court on 4 June 2001. That appeal was disallowed on 20 December 2002. A lengthy appeal process followed, including an appeal to the High Court which was withdrawn in January 2004. At the time of sentencing before the magistrate, a fresh visa application was being made.
Mr Shojaee now resides in the Adelaide community, having been granted a temporary protection visa. It appears that Mr Shojaee has formed a relationship and was married in October 2004.
Mental Health History
A psychological assessment report dated 30 January 2004 was before the magistrate at the time of sentencing. It was reported that Mr Shojaee was suffering from a chronic major depressive disorder, post-traumatic stress disorder, and panic disorder with agoraphobia. Mr Shojaee also displayed a number of other symptoms consistent with significant psychological disturbance, including nocturnal incontinence, perceptual disturbances, and multiple somatic complaints.
In relation to the chronic major depressive disorder, it was reported that Mr Shojaee suffered symptoms including: depressed mood, psychomotor agitation, decreased appetite, insomnia, poor concentration and memory difficulties. In addition it was reported that Mr Shojaee has a history of suicide and self-harm attempts, including a suicide attempt involving hanging that required medical treatment.
Mr Shojaee reported that his symptoms of depression dated from the period of his detention after arrival in Australia. This depression was said to have become progressively worse after his visa application was unsuccessful.
It was further reported that Mr Shojaee suffered from post traumatic stress disorder and experienced symptoms including: recurring thoughts, images and nightmares of torture endured while in Iran and elevated levels of hyper vigilance.
The psychological report included the following finding:
Over the previous 12 months in particular, Mr Shojaie’s [sic] reported symptomatology has increased in intensity and his physical and psychological well-being appears to have rapidly deteriorated in the detention environment. Mr Shojaie also has a documented history of self harm and attempted suicide. The history of attempted suicide, physically disabling symptoms, psychological disturbance and continuance of his current life circumstance places Mr Shojaie at extremely high risk of ongoing suicidal behaviour. It was also apparent that Mr Shojaie’s mental state is highly reactive to the detention environment. Mr Shojaie’s fears at night time, his hypervigilance, and his general state of heightened paranoia all appear to be directly related to various aspects of his continued detention.
Counsel for the Crown accepted that Mr Shojaee had been diagnosed with chronic major depressive disorder and post-traumatic stress disorder. It was agreed that while in detention he had engaged in self-harming conduct including several suicide attempts, the consumption of shampoo and cutting himself with razor wire.
In addition to the present proceedings, Mr Shojaee has had one other court appearance whilst in Australia. The offending occurred in Broome, Western Australia, on 5 August 2002. The offending conduct involved the smashing of 15 windows at Curtin Detention Centre, giving rise to two counts of damaging Commonwealth property contrary to section 29 of the Crimes Act. He was sentenced to eight months imprisonment but released forthwith pursuant to section 20(1)(b) of the Crimes Act. This offending occurred after the offence the subject of the present appeal.
Proceedings before the Magistrate
As earlier observed, on 1 December 2004 the learned Chief Magistrate discharged Mr Shojaee without conviction upon his entry into a good behaviour bond. Both parties had consented to proceedings being dealt with summarily pursuant to section 4J of the Crimes Act. As a result, Mr Shojaee was exposed to a maximum sentence of 12 months imprisonment. Mr Shojaee was sentenced along with others charged with escaping immigration detention during the same incident at Woomera on 29 March 2002. With respect to Mr Shojaee, the learned Magistrate observed:
Yesterday I received a great deal of material relating to matters at Woomera, and I was aware previously of remarks made by Justice Kirby in the High Court. I am particularly familiar with a report from Lyn Bender and some remarks from Glenda Koutroulis that relate particularly to the conditions at Woomera. I made some remarks yesterday that also included comment about the use of numbers to describe people, the practice that has been criticised elsewhere. Mr Shajaee [sic] and Mr Ghorban, I have seen the reports that have been prepared in relation to you, and I am grateful for the preparation of those reports by Mr Balfour. Mr Balfour refers in another document to reviewing eleven detainees at Baxter and his reports in other matters were tendered to me yesterday.
…
In each of the cases for you Mr Gormravi, Ghorban and Shajaee you have pleaded guilty and it is my view particularly in connection with your Mr Ghorban and you Mr Shajaee that given the material before me that relates particularly to your heath issues material that is accepted by the prosecutor, that in your cases it is appropriate to deal with you pursuant to Section 19B of the Crimes Act.
Accordingly for you Mr Ghorban and you Mr Shajaee, each of you will be discharged pursuant to Section 19B(1) without proceeding to a conviction; each of you to enter 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 Shojaee, related to general conditions of detention within Australia. However, no further reference was made to the content of the material received or its relevance to determining an appropriate sentence.
Recently, this court has handed down reasons for its decision in the matters of Morrison v Behrooz,[1] Shillabeer v Hussain,[2] and Elder v Kakar; Police v Kakar.[3] Those matters involved factual and legal circumstances with similarities to the present case. Behrooz concerned a Crown appeal against a sentence imposed by a magistrate for an offence of escaping immigration detention. In Behrooz the Court considered in detail the legislative scheme of the Migration Act. These observations are relevant to the present case.[4]
[1] [2005] SASC 142.
[2] [2005] SASC 198.
[3] [2005] SASC 222.
[4] [2005] SASC 142 at [17]-[23].
Behrooz also considered the seriousness of the offence contained in section 197A of the Migration Act, noting that its gravity was clear both from the legislative scheme and the maximum penalty attached to the offence. It was observed that the legislation was amended 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 strengthen the deterrent effect of the sentence to be imposed. The equating of an offence of escaping from migration detention with escaping from lawful custody is an indication of the seriousness with which the legislature viewed the offence. In Behrooz the court considered the case law dealing with escaping other forms of lawful custody.[5] The seriousness of an escape depends upon the circumstances of the escape as well as the type of custody or detention. The maximum penalty that can be imposed for offending of this nature reflects the need to deter others.
[5] [2005] SASC 142 at [30] – [36]. See also R v Shepperbottom (2001) 212 LSJS 486; R vKnight (1986) 40 SASR 479.
The Appeal
As earlier observed, this is a Crown appeal against sentence. The grounds of appeal advanced by counsel for the Crown were that: 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.
It was said that a term of imprisonment should have been imposed. An immediate release order or recognisance was not opposed.
A prosecution appeal against sentence may only be justified in the rare and exceptional case. It puts in jeopardy the liberty of an offender 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 a material error of sentencing principle, 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.
Where error is identified it may be necessary for the appellate court to re-sentence a defendant. However, as observed in Behrooz, circumstances may arise in which an error in the sentencing process is established, but the final sentence imposed remains appropriate.[8] In such a case, the error of sentencing principle will be addressed, however the appeal against sentence will be dismissed.
[8] [2005] SASC 142 at [26].
In the present case, the magistrate proceeded to sentence Mr Shojaee pursuant to section 19B of the Crimes Act. As observed in Behrooz, when proceeding to sentence pursuant to section 19B, the sentencing authority is obliged to undertake a two-stage process. [9] The first stage is the identification of one or more of the factors identified in section 19B(1)(b). The second stage is the determination, if appropriate, that having regard to the factor or factors so identified, it is inexpedient to inflict any punishment or to reach the other conclusions for which section 19B provides. Counsel for the Crown contended that the magistrate had not followed through the two-stage process.
[9] [2005] SASC 142 at [60]-[68].
When sentencing Mr Shojaee, 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.
Counsel for the Crown contended that general deterrence should be a prominent sentencing consideration with respect to offending of this type. As earlier observed, the scheme of the Migration Act and the penalty imposed for escaping immigration detention make it clear that the offence is regarded as serious and the legislature intends deterrence as a key objective when sentencing.
In the present case, by failing 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[10] and more recently by this Court in Behrooz, 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. The magistrate’s approach led to a situation where he failed to have adequate regard to the seriousness of the offending.
[10] [2002] NSWCCA 42 at [83]-[86].
Mr Shojaee’s escape was in the company of a group of detainees. The escape occurred in the context of a mass demonstration. Protestors encouraged detainees to leave the centre. Mr Shojaee’s escape involved the deliberate leaving of immigration detention without lawful authority. It was contended that at the time of Mr Shojaee’s escape from immigration detention, he was caught up in the excitement of the protest and was encouraged by others to engage in criminal conduct. However, the circumstances of his escape cannot be described as trivial and general and personal deterrence are prominent sentencing considerations with respect to offending of this kind.
The magistrate failed to have adequate regard to the seriousness of the offending. The magistrate further failed to have regard to the policy considerations underlying the important question of general deterrence.
Even if there were compelling mental health or other reasons to proceed without conviction, it was important for the magistrate to explain why those issues outweighed other important sentencing considerations. He did not do so. The magistrate failed to undertake the two-stage process required by section 19B and as a result the sentencing process miscarried.
Re-sentence
Further Evidence

Further material relevant to Mr Shojaee’s personal antecedents was placed before this Court during the hearing of this appeal. No objection was taken to this evidence 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.
Counsel for Mr Shojaee provided the Court with a psychological report compiled on 15 August 2004. This report was not put before the magistrate. At the time of the report, Mr Shojaee was detained at the Baxter Immigration Detention Facility. During his interview with Mr Micallef, the psychologist, Mr Shojaee reported a history of sexual abuse during his periods in custody and military service in Iran.
Mr Micallef summarised Mr Shojaee’s psychological history since arriving in Australia as follows:
Mr Shojaee was diagnosed with suffering with Post traumatic Stress Disorder, depression, and psychotic features by Dr Elaine Skinner (Psychiatrist) in May 2003. He has a documented history of self harm. Whilst in Woomera Immigration Detention Centre he was admitted to the Woomera Community Hospital in January and September 2001 for suspected drug overdose. In December 2003 he attempted suicide by hanging and was transferred to the local hospital at Port Augusta where he was observed and returned to the Baxter Immigration Detention Centre the following day. The attempt apparently followed a negative response from DIMIA that day.
The report also provided information on Mr Shojaee’s psychological condition as at August 2004. It was observed that Mr Shojaee continued to suffer depressed mood, nightmares, and difficulty sleeping and decreased appetite. Mr Micallef reported:
It is my opinion that Mr Shojaee currently meets the criteria for Posttraumatic Stress Disorder, Chronic and has many elements of a Major Depressive Episode, Moderate. These disorders are treatable in the detention environment. Mr Shojaee’s history of self harm is of greatest concern and is currently managed by increased observations, regular reviews, and psychiatric consultations and assessments. It was been apparent in the last 1 week that his mental status, in terms of his depressed mood and despondency, has deteriorated to a mild degree and that it will be beneficial to liaise and consult at this stage before further deterioration evolves. It has been apparent from his past history that deterioration in his mental state, such as, increased in level of depression and despondency, correlate directly with self harm attempts. In addition to this, with Mr Shojaees’ [sic] detached style of relating to the examiner, the normal rules of assessment, especially in relation to suicidality [sic], which rely heavily on self report do not necessarily apply in this instance.
Section 19B Discretion
On the hearing of the appeal counsel for the Crown accepted that the first stage of the section 19B process was satisfied. The discretion to proceed pursuant to section 19B was enlivened by Mr Shojaee’s character, his antecedents, cultural background, age and mental health. These factors must be considered along with all other relevant matters in deciding whether to exercise the enlivened discretion in favour of Mr Shojaee. 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 the orderly operation of immigration detention centres constitutes a material consideration when sentencing for offending under section 197A of the Migration Act. However, there is also a public interest in offenders, particularly offenders of otherwise good character, being successfully rehabilitated. When re-sentencing Mr Shojaee, it is appropriate to have regard to the effect that the sentence may have on his future rehabilitation.
As earlier observed, Mr Shojaee has been granted a temporary protection visa and is residing in the Adelaide community. It appears from references in recent medical notes that, since his release from detention, Mr Shojaee has married. There is little material before the Court to provide a full understanding of his current mental health, however, a common theme in previous medical reports appears to be the detrimental impact of detention upon Mr Shojaee’s health. Progress notes from the Baxter Immigration Detention Facility dated 25 October 2004 and 1 November 2004 suggest his mental health improved following the grant of his temporary protection visa and his marriage:
Contact today with [Mr Shojaee] who is very much a happy man re his up coming marriage on Saturday and he certainly displayed it physically his happiness when he was congratulated. He has been shopping and has all the necessary clothing which proudly shows off.
Spoke with [Mr Shojaee] he expressed that his wedding went well and he was looking and feeling extremely happy.
These are material matters to be considered when sentencing and suggest that Mr Shojaee is a good candidate for rehabilitation. Mr Shojaee’s personal circumstances allow a merciful approach to re-sentencing.
Counsel for Mr Shojaee submitted that the conditions of his detention were a relevant factor to consider when sentencing. Material describing Mr Shojaee’s perception of his conditions of detention is relevant to his mental health history. Mr Shojaee considered these conditions as being intolerable and his experience of indeterminate detention in such conditions has been referred to in the medical evidence as a source of his mental condition and suicidal tendencies. While Mr Shojaee’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.
The evidence of Mr Shojaee’s past and present mental condition, personal circumstances and his good prospects for rehabilitation indicate that it would be inexpedient to proceed to record a conviction or to impose an immediate custodial sentence. To proceed without recording a conviction is an appropriate course.
The appeal against sentence is dismissed.