Morrison v Behrooz (N0 2)

[2005] SASC 293

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

MORRISON v BEHROOZ (N0 2)

Judgment of The Honourable Justice Gray

9 August 2005

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OF ISSUES

Application for costs by respondent - 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 - Magistrate erred in sentencing process however merciful approach warranted in circumstances - appeal against sentence dismissed - counsel for the respondent informed court that he acted pro bono - costs order must recognise appellant's success on most issues - order: appellant to pay respondent's costs fixed at $750.

Migration Act 1958 (Cth); Crimes Act 1914 (Cth) s 19B, referred to.
Morrison v Behrooz [2005] SASC 142, considered.

MORRISON v BEHROOZ (N0 2)
[2005] SASC 293

Costs Argument

1. On 15 April 2005, judgment was delivered in Morrison v Behrooz.[1]  The decision concerned an appeal against a sentence imposed by a magistrate.  In the event, the appeal was dismissed.  The respondent seeks an order for costs.

   [1] [2005] SASC 142.

2. At the hearing of the appeal, the appellant advanced a submission suggesting that the learned magistrate erred in the application of sentencing principles.  These matters are addressed in the principal judgment.  One submission on which the appellant was successful was that the magistrate had failed to pay proper regard to the purposes of the relevant provisions of the Migration Act 1958 (Cth). Another related to the failure of the magistrate to follow the two-stage process required by section 19B of the Crimes Act 1914 (Cth). On appeal, the respondent initially asserted that the conditions of the respondent’s detention were deplorable and unacceptable but later abandoned this submission. A re-consideration of the sentence imposed was undertaken.

3. The respondent tendered further evidence.  This was appropriate, as the Court, having identified sentencing error, had to determine an appropriate sentence and in that process consider any further evidence.

4. The further evidence was relevant and important.  It provided a body of information about the respondent’s ill health.  This was of particular relevance to the issue of re-sentence.  A report from the guardian of the respondent spoke of his relocation to New South Wales and his re-establishment in that State.  The report provided information about the respondent’s employment prospects and ongoing medical treatment.  The Court was also informed that, subsequent to the decision of the magistrate, the respondent had been granted a temporary protection visa.

5. A further matter of relevance on appeal was the doctrine of mercy.  This doctrine played an important part in the determination of an appropriate sentence.

6. Having regard to all matters then before the Court, and in particular the further evidence, it was determined that it was appropriate to proceed without conviction and to release the respondent on a bond.  For those reasons the appeal was dismissed.

7. Counsel for the respondent informed the court that he acted in the matter on a pro bono basis.  The Court has been assisted by the submissions of pro bono counsel for the respondent.  Although the respondent was unsuccessful on several points of principle, the fact that there was full debate on all relevant issues by counsel was of considerable assistance.  In particular, counsel for the respondent’s ability to take instructions on further material relevant to sentencing was of assistance.  However, the pro bono status of counsel, although commendable, does not of itself warrant an award of costs.

8. Having regard to the reasons in the primary judgment, the appellant was justified in pursuing the appeal.  Much of the time in argument was taken on points of principle on which the appellant was successful.  Error on the part of the magistrate was identified.  The consideration of an appropriate sentence was materially influenced by the further evidence received by the Court.  However, in the event, the appeal was dismissed.

9. In all the circumstances it is appropriate to make a modest award of cost in favour of the respondent.  This order reflects the fact that the appellant was successful on most issues debated.  The order also recognises the relative complexity of the issues raised.  The appellant is to pay costs fixed at $750.00.