Habib Urahman v Semrad

Case [2012] NTSC 95

Habib Urahman v Semrad [2012] NTSC 95

PARTIES:   HABIB URAHMAN

v

SEMRAD, Monica

TITLE OF COURT:   SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:   SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NOS:   JA 41 of 2012 (21126200) and JA 43 of 2012 (21203102)

DELIVERED:   28 November 2012

HEARING DATE:   2 August 2012

JUDGMENT OF:   SOUTHWOOD J

APPEAL FROM:   LOWNDES SM

CATCHWORDS:

APPEALS AGAINST SENTENCE – refugee – offences committed while in immigration detention - failure to take account of extenuating circumstances – failure to properly assess objective seriousness – weight to be given in mitigation to the period in immigration detention– manifestly excessive – appeal against the sentence for the offence of cause harm to a Commonwealth public official allowed

Crimes Act 1914 (Cth) s 16A, s 19B, s 29

Criminal Code 1995 (Cth) s 147.1

Migration Act 1958 (Cth) s 501, s 510

Justices Act (NT) s 163

R v Bob [2003] QCA 129

Darciev R [2012] VSCA 11

R v David Guan Liang Qin [2008] NSWCCA 189

Dauphin v The Queen [2002] WASCA 104

Commissioner of Taxation v Baffsky (2001) 192 ALR 92

R v Griffith (unreported, Victorian Court of Appeal, 29 April 1998)

Greenburg v R (1993) 68 A Crim R

Guden v R (2010) 28 VR 288

HAT v R (2011) 256 FLR 201

Hesseen v Burgoyne [2003] NTSC 47

Hoare (1989) 167 CLR 348

R v Jap (unreported, NSW Court of Criminal Appeal, 20 July 1998)

R v Kwon [2004] NSWCCA 456

Lanham v Brake (1983) 34 SASR 578

R v Latumetan and Murwanto [2003] NSWCCA 70

R v M.A.H (2005) NTLR 150

R v MAO (2006) 163 A Crim R 63

R v Pham [2005] NSWCCA 94

R v S [2003] 1 Qd R 176

R v Woods (2009) 24 NTLR 77

R v Zainudin (2005) 190 FLR 149

REPRESENTATION:

Counsel:

Appellant:   J B Lawrence SC

Respondent:   M Voller

Solicitors:

Appellant:   Northern Territory Legal Aid Commission

Respondent:   Commonwealth Director of Public Prosecutions

Judgment category classification:    B

Judgment ID Number:   Sou1209

Number of pages:   32

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Habib Urahman v Semrad [2012] NTSC 95

No. 41 of 2012 (21126200) and 43 of 2012 (21203102)

BETWEEN:

HABIB URAHMAN

Appellant

AND:

MONICA SEMRAD

Respondent

CORAM:     SOUTHWOOD J

REASONS FOR JUDGMENT

(Delivered 28 November 2012)

Introduction

  1. This proceeding involves two appeals from the Court of Summary Jurisdiction.  The appeals were heard together.

  2. On 8 June 2012, following a trial in the Court of Summary Jurisdiction, the appellant was found guilty of the crime of engaging in conduct which caused harm to a Commonwealth public official contrary to s 147.1(1) of the Criminal Code 1995 (Cth). The maximum penalty for this offence is imprisonment for 10 years or a fine not exceeding 120 penalty units. On 15 June 2012 the appellant pleaded guilty to the crime of causing damage to property belonging to the Commonwealth contrary to s 29 of the Crimes Act 1914 (Cth). The…

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Habib Urahman v Semrad [2012] NTSC 95
Case
[2012] NTSC 95
Decision Date

CaseChat Overview and Summary

The appeal in Habib Urahman v Semrad involved the appellant, a Burmese refugee who had been in immigration detention since 2009, challenging the sentences imposed on him for causing harm to a Commonwealth public official and damaging Commonwealth property. The appellant argued that the sentencing magistrate erred in considering the offence to be serious, not adequately weighing his good character, and failing to consider the extenuating circumstances of his mental state and prolonged detention. Additionally, he claimed that the sentence was manifestly excessive and that insufficient weight was given to his detention period.

The court was required to determine whether the sentencing magistrate made errors in assessing the seriousness of the offence, the weight of the appellant's character, and the extenuating circumstances. The court also needed to evaluate whether the sentence was manifestly excessive and if the magistrate appropriately considered the appellant's period of detention. Furthermore, the court had to examine the relevance of potential adverse administrative decisions, such as the refusal of a visa, in the sentencing process.

The court found that the appeal against the sentence for damaging Commonwealth property was without merit, but the appeal against the sentence for causing harm to a Commonwealth public official was upheld. The court considered the appellant's crime to be out of character and committed under extenuating circumstances, including his mental state and prolonged detention. The court concluded that it was inexpedient to inflict any punishment on the appellant. Consequently, the sentence of three months imprisonment was set aside, and the conviction was discharged with the appellant required to give security for good behaviour.

The court also addressed the relevance of potential adverse administrative decisions in the sentencing process. It concluded that the risk of such decisions should not be a consideration in sentencing, as per the precedents in other Australian jurisdictions. The court noted that while the risk might be a factor in Victoria, there was no evidence in this case to suggest the risk was significant.

Orders

Orders of the court

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Background

Background to the litigation

The grounds of appeal against the appellant’s sentence for the crime of damaging Commonwealth property are as follows.1.The sentencing magistrate erred by considering the offence to be a serious matter.2.The sentencing magistrate erred by giving insufficient weight to the positive good character of the appellant.3.The sentencing magistrate erred by finding that there was insufficient extenuating circumstances to enliven s 19B(1)(a) & (b)(iii) of the Crimes Act 1914 (Cth).4.By recording a conviction in all the circumstances of the case and the sentence was manifestly excessive.5.The sentencing magistrate erred as a matter of justice by merely taking into account seven months of the appellant’s two years and seven months detention.The facts In his sentencing remarks the presiding magistrate did not set out the full details of the factual findings that he made about the appellant’s crime of engaging in conduct which caused harm to a Commonwealth public official. However, the facts may be summarised as follows. The appellant is a 33 year old Burmese refugee who has been in immigration detention under the Migration Act (Cth) since he arrived at Christmas Island on 28 December 2009. In May 2010 the Australian Department of Immigration assessed the appellant and determined that he was a genuine refugee. However, he remained in detention while the Australian Security Intelligence Organisation completed a security check. The security check was not completed until December 2011 when it was determined that the appellant was not a security risk. While refugees are in detention they are subject to welfare checks. Welfare checks are undertaken three or four times a day to ensure that detainees remain in detention and are being cared for appropriately. They are also undertaken after there have been rooftop protests or demonstrations. A welfare check after a rooftop protest, involves SERCO employees entering the rooms of detainees and speaking to them to ensure that they are off the roof, safe and unharmed. They also involve an assessment of a detainee’s mental state. The appellant was familiar with such checks. On 12 August 2011 the appellant participated in a rooftop protest at the Northern Immigration Detention Centre in Darwin where he was detained. The protest was against the length of detention of refugees. During the course of the protest the appellant climbed up onto the roof of one of the buildings where he remained for about five hours. After he came off the roof he went to sleep in the room that he had been allocated. After the appellant went to sleep, a welfare check was conducted by Mr Paul Green, a SERCO employee. Mr Green was a Commonwealth public official. He conducted the welfare check quietly and respectfully because it was night time and efforts are made not to disturb people if they are asleep. Mr Green walked into the appellant’s room which was dark. There appeared to be a person asleep with a cover over his head on a bottom bunk in the room and it looked like another person occupied the top bunk. A light was on in the bathroom so Mr Green walked to the bathroom to see if somebody was in the bathroom. He knocked quietly on the bathroom door before he checked the bathroom. There was nobody in the bathroom.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Further, in R v M.A.H[19] Mildren J (with whom the other members of the Court agreed) stated that the possibility of an adverse administrative decision, such as deportation, is an entirely irrelevant matter for sentencing purposes. There is some force in the Victorian authorities in a case such as this where a refusal to grant the appellant a visa may result in him remaining in immigration detention indefinitely. However, courts in the Northern Territory are bound by the decision of the Court of Criminal Appeal in R v M.A.H and they must disregard the possibility that a person such as the appellant may be refused a visa if they are convicted of a crime committed while they are in immigration detention. Further, even if the Victorian authorities were to be applied, there is no evidence in this case about the actual risk of the offender being refused a visa by the Minister.Conclusion The appeal against the sentence imposed for the crime of cause damage to property belonging to the Commonwealth is refused. The appeal against the sentence imposed for the crime of cause harm to a Commonwealth public official is allowed. The sentence of three months imprisonment and the conviction of the appellant of that crime are set aside. The appellant is re-sentenced for the crime of cause harm to a Commonwealth public official. In my opinion, this is an appropriate case for the Court to exercise the discretion under s 19B of the Crimes Act 1914 (Cth). I am satisfied that the charge of cause harm to a Commonwealth public official is proved, but I am of the opinion, having regard to the character of the appellant and the extent to which the offence was committed under extenuating circumstances, that it is inexpedient to inflict any punishment on the appellant. The appellant is discharged without the Court proceeding to conviction in respect of the charge of cause harm to a Commonwealth public official upon him giving security by recognizance in the sum of $1000 to be of good behaviour for 12 months from today. The crime of cause harm to a Commonwealth public official committed by the appellant was totally out of character. It was committed under extenuating circumstances, namely, his debilitated mental state, and those circumstances do have a tendency to significantly reduce his culpability for the crime. The appellant has excellent prospects of being rehabilitated and the victim only suffered minor harm. This is not a case in which the object of general deterrence should be given particular weight. In exercising my sentencing discretion, I have noted that a factor which has a tendency to reduce the extent of any leniency that may be accorded to the appellant is his intransigence and apparent lack of remorse which is demonstrated by the fact that he pleaded not guilty to the offence in circumstances where the prosecution case was a strong case and the victim had to give evidence. However, this factor is outweighed by his previously positively good character and the extenuating circumstances in which he committed the offence.

Ratio Decidendi

Legal Principle Established

In my opinion, this ground of appeal is made out. The sentence of three months imprisonment was clearly and obviously and not just arguably excessive.[11]Section 501 of the Migration Act 1958 (Cth) During the course of these appeals and during the course of proceedings in the Court of Summary Jurisdiction some reference was made by senior counsel for the appellant to s 501 of the Migration Act 1958 (Cth). Subsection 501(1) of the Migration Act 1958 (Cth) states that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. So far as is relevant to these appeals, under s 501(6)(aa) and (c) of the Migration Act 1958 (Cth) a person does not pass the character test if: the person has been convicted of an offence that was committed while the person was in immigration detention; or having regard to either or both of the following: (i) the person’s past and present criminal conduct; (ii) the person’s past and present general conduct the person is not of good character. The power granted to the Minister under s 501 of the Migration Act 1958 (Cth) is completely discretionary. The Minister is not under a duty to exercise the power to refuse the grant of a visa if one of the relevant factors specified in s 510(6) of the Migration Act 1958 (Cth) is established. Nonetheless, if the appellant’s convictions for these crimes are not set aside there is a greater risk that the Minister may refuse to grant the appellant a visa because he has failed the character test. The authorities as to what consideration, if any, a sentencing court should give to such provisions vary between Australian jurisdictions. In New South Wales,[12] Queensland,[13] Western Australia[14] and the Northern Territory[15] the approach seems to be that it is impermissible for a sentencing judge to reduce an otherwise appropriate sentence in order to avoid the risk of an administrative authority making a decision which is adverse to the person. In those jurisdictions, the risk of the administrative authority making an adverse decision to the person has been held not to be a relevant consideration in the sentencing process. However, in Victoria[16] the prospect of the administrative authority making an adverse decision to the person is a factor which may be relevant to the impact that a sentence of imprisonment will have on an offender, both during the currency of their incarceration and upon an offender’s release, and therefore, subject to the state of the evidence that such an adverse decision is likely, it should be taken into account when sentencing. In Hat v R[17] Redlich JA further stated, “Also, if the effect of receiving a sentence of imprisonment is that an offender will lose the opportunity of settling permanently in Australia, this may be taken into account as a form of additional punishment. But a sentencing judge is not required to speculate; there must be evidence that enables a sensible quantification of the risk of deportation will in fact occur, and proof that deportation would in fact be a hardship for that particular offender.”