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

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.
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.
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.
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.
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.
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…

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 Morrison v Behrooz (N0 2)

Details

AGLC: Morrison v Behrooz (N0 2) [2005] SASC 293
Case: [2005] SASC 293
Decision Date: 9 August 2005

CaseChat Overview and Summary

In the matter of Morrison v Behrooz (No 2), the respondent, Behrooz, applied for costs following a Crown appeal against the sentence imposed by a magistrate. Behrooz had pleaded guilty to an offence of escaping immigration detention under section 197A of the Migration Act 1958 (Cth). The magistrate had discharged Behrooz without conviction upon his entry into a recognizance of $100 to be of good behaviour for two years. The Crown appealed against the sentence, and the appeal was subsequently dismissed.

The legal issue that the court had to address was the allocation of costs in light of the Crown's success on most issues, despite the appeal being dismissed. The court noted that costs generally follow the event, but also recognised the importance of the respondent's pro bono representation. The court had to balance these considerations in determining the appropriate costs order.

The court ruled that while the Crown had been successful on the majority of the issues in the appeal, the overall merciful approach taken by the magistrate warranted the appeal being dismissed. Given the respondent's pro bono status, the court determined that the costs should be fixed at $750, to be paid by the appellant. This decision recognised both the Crown's success and the respondent's circumstances. The final order mandated that the appellant was to pay the respondent's costs, fixed at the amount determined by the court.

Orders