Mehr v POLICE

[2017] SASC 104

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

MEHR v POLICE

[2017] SASC 104

Judgment of The Honourable Justice Vanstone

21 July 2017

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - JUDGE ACTED ON WRONG PRINCIPLE

Appeal against sentence imposed in the Magistrates Court. The appellant was found guilty of theft of jewellery and providing false information to a second-hand dealer. One sentence of five months and 12 days imprisonment was imposed for both offences. It was common ground that the Magistrate erred in utilising s 18A of the Criminal Law (Sentencing) Act 1988 (SA) for the two offences when one offence did not carry a maximum penalty of imprisonment. The task became one of resentencing. The appellant put that his offending should not attract a term of imprisonment due to the nature of the offence, his mental health, the wellbeing of his son, and the likelihood of his visa being cancelled.

Held: The appeal is allowed and the sentence is set aside.  A sentence at least of the order of that imposed by the Magistrate is appropriate for the theft. The appellant is sentenced to five months imprisonment, backdated to 19 October 2016.

Criminal Law Consolidation Act 1935 (SA) s 134; Second-hand Dealers and Pawnbrokers Act 1996 (SA) s 20; Criminal Law (Sentencing) Act 1988 (SA) s 18A; Migration Act 1958 (Cth) s 501, s 501CA, referred to.

MEHR v POLICE
[2017] SASC 104

Magistrates Appeal: Criminal

VANSTONE J.

1. Amir Amini Mehr appeals against a sentence of five months and 12 days imprisonment imposed upon him following his being found guilty by a Magistrate of theft of jewellery, contrary to s 134 of the Criminal Law Consolidation Act 1935 (SA) and providing false information to a second-hand dealer, contrary to s 20(2) of the Second-hand Dealers and Pawnbrokers Act 1996 (SA). The Magistrate delivered ex tempore reasons for her findings of guilt on 4 April 2017 and the appellant was sentenced two days later.

2. The Magistrate described the offending as “callous”. It concerned the theft of 13 pieces of jewellery belonging to Ms Beverley Gum. Ms Gum had befriended the appellant’s former partner during their voluntary work together teaching English as a second language at a local church café. Most of those learning English were refugees. The appellant’s former partner introduced him to Ms Gum, who contracted with the appellant to carry out renovations on her home. For that purpose she paid him some $30,000. At some point during the renovations, the appellant removed jewellery from amongst her belongings and later, he pawned it. Ms Gum estimated its worth to be about $6,000, although since it came to her from her late parents, it was worth much more in sentimental value. When the appellant pawned the jewellery at Cash Converters, he falsely claimed that he owned it. The maximum penalty for that offence is a fine of $10,000. For the theft, it is ten years imprisonment. The Magistrate purported to utilise s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to impose one sentence in relation to both counts. Notwithstanding that there had been a trial, the Magistrate allowed a discount of 10 per cent from a starting point of six months imprisonment, reducing the sentence to five months and 12 days. The sentence was backdated to 19 October 2016.

3. At the commencement of the appeal hearing, counsel for the respondent properly conceded that s 18A of the Sentencing Act was not available in relation to a group of offences, one or more of which did not carry a maximum penalty of imprisonment. Accordingly, it being accepted that I must re-sentence the appellant, the hearing proceeded as one more in the nature of sentencing submissions. 

   Sentencing afresh

4. Counsel for the appellant, Ms Waite, argued that the offending was not sufficiently serious to attract a sentence of imprisonment, particularly having regard to the fact that the sentence has effectively been served and the appellant was subsequently placed on a further suspended sentence. That followed his release on a bond after serving eight months of a sentence for two counts of threatening harm. That sentence commenced on 6 May 2016. At the time of this offending the appellant had no prior convictions. Counsel highlighted that Dr Nambiar expressed the view that he was suffering from a post-traumatic stress disorder arising from a car accident which occurred prior to his arrival in Australia and in which his wife was killed. Further, counsel relied on what she submitted were the exceptional circumstances relating to the appellant’s young son. The appellant is his son’s only relative in Australia and, prior to his incarceration, cared for him. It appears that the son is now in state care.

5. Counsel emphasised the likelihood that, if any sentence of imprisonment at all stands in relation to the offending under consideration, it is very likely that the appellant’s visa will be cancelled, having regard to s 501 of the Migration Act 1958 (Cth). In its current form the Migration Act provides that the Minister must cancel a visa if satisfied that the visa holder does not pass the character test: s 501(3A). A person does not pass the character test if that person has a substantial criminal record: s 501(6). A person has a substantial criminal record if the person has been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more: s 501(7).

6. As touched on, over a year after the commission of these offences and on 23 December 2016, Magistrate Whittle sentenced the appellant for two counts of threatening harm. The sentence was one of 11 months and 27 days imprisonment, to be suspended after eight months was served. The sentence was backdated to 6 May 2016. Being less than 12 months, that sentence would not activate s 501(3A). However, if the sentence imposed by Magistrate O’Connor were to stand, or indeed any sentence of three days or more, then the terms of s 501 would be engaged so as to require the Minister to cancel the appellant’s visa. Notwithstanding s 501, the Minister is able to revoke the cancellation of a visa if satisfied that there is reason to do so: s 501CA(4).

7. There is conflicting authority in Australia about the relevance of the prospect of cancellation of a defendant’s visa and deportation. It appears clear that the likelihood of deportation is at least a relevant factor in general terms, forming part of the personal circumstances of a defendant. However, there is a general consensus that courts should not be asked to speculate as to the likelihood of deportation.

8. I do not consider that it is necessary to attempt to resolve the conflicting authorities. What seems plain to me is that it would be quite wrong to draw short of imposing a sentence of imprisonment where one was otherwise justified, just because the legislative machinery in the Migration Act would be engaged if a sentence were imposed. The fact that the appellant has already served the sentence imposed by Magistrate O’Connor is not to the point. If the appellant’s offending is serious enough to warrant a term of imprisonment and no lesser penalty is sufficient to mark its gravity, then the sentence must be imposed, irrespective of the possible consequences for the defendant. This is not a case where imposing a sentence slightly shorter than that otherwise justified would make any difference. On the contrary, I consider that a sentence of at least the length imposed by the Magistrate was plainly justified. In those circumstances, what I am asked to do, inferentially, is to decline to impose any sentence at all where one is plainly warranted. Whatever the relevance of the expectation that the appellant’s visa will be cancelled, such a course would not be consistent with principle.

9. As I said, I consider that a sentence for the theft of at least of the order of that imposed by the Magistrate is appropriate. As earlier noted the Magistrate purported to give a discount to the appellant of about 10 per cent. She said, “in my view even though the matter has gone to trial he is entitled to a 10 per cent reduction in sentence”. I do not understand the basis for such a reduction. A reduction of that order might have been appropriate had the appellant pleaded guilty not long before trial. In any event, I consider that the minimum term of imprisonment which is required to meet the punitive and protective purposes of punishment is one of five months. Notwithstanding the appellant’s prior good record I can find no good reason to suspend the sentence.  Like the Magistrate I shall backdate the sentence to 19 October 2016. For the offence against the Second-hand Dealers Act I impose a fine of $100. As before, the appellant is to pay the victim of crime levies and $100 towards the prosecution’s trial costs.

10. My orders are:

    1The appeal is allowed and the sentence is set aside.

    2In its place a sentence of five months imprisonment is imposed for the theft, backdated to 19 October 2016.

    3For the Second-hand Dealers Act offence a fine of $100 is imposed.

    4The appellant is to pay the victims of crime levies and $100 towards the prosecution’s costs in the Magistrates Court.