Nguyen v Ciolka - [2015] NTSC 67

Nguyen v Ciolka [2015] NTSC 67
PARTIES:LAM VAN NGUYEN

v
GEORGE CIOLKA

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA 20 of 2015 (21508487)
DELIVERED:  1 October 2015
HEARING DATES:  24 September 2015
JUDGMENT OF:  RILEY CJ
APPEAL FROM:  Mr Cavenagh SM
CATCHWORDS:

CRIMINAL LAW – Justice’s appeal – Appeal against conviction –Magistrate’s discretion under s 19B(1)(b) Crimes Act 1914(Cth) to proceed without conviction was enlivened - two-stage process - whether inexpedient to inflict any punishment other than a nominal punishment – serious offending – nature and circumstances of the offending required that a conviction be recorded
CRIMINAL LAW – Justice’s appeal – Appeal against fines imposed – s 16C(1) Crimes Act 1914(Cth) and Djou v Commonwealth Department of Fisheries (2004) 29 WAR 216 considerations - Magistrate failed to enquire into financial circumstances of the Appellant and his capacity to pay – Appellant resentenced
Crimes Act 1914(Cth), s 19B and s 16C.
Djou v Commonwealth Department of Fisheries (2004) 29 WAR 216, applied.
Commissioner of Taxation v Baffsky (2002) 192 ALR 92; (2001) 122 A Crim R 568, Acuthan v Coates (1986) 6 NSWLR 472, Henda v Cahill [2009] NTSC 63, Bird v Peach [2006]17 NTLR 230; [2006] NTCA 7, referred.
REPRESENTATION:
Counsel:
Appellant:Ms J Ker
Respondent:  Mr M Gillard
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Office of the Director of Public Prosecutions (Cth)
Judgment category classification:    B
Judgment ID Number:  Ril1509
Number of pages:  10

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Nguyen v Ciolka [2015] NTSC 67

No. JA 20 of 2015 (21508487)
BETWEEN:

LAM VAN NGUYEN

Appellant

AND:

GEORGE CIOLKA

Respondent

CORAM: RILEY CJ
REASONS FOR JUDGMENT
(Delivered 1 October 2015)

On 10 April 2015 the appellant pleaded guilty before the Court of Summary Jurisdiction to having escaped from immigration detention and having possessed a foreign travel document knowing the document was not issued to him. On that date he was convicted of both offences and discharged without further penalty.
The matter was brought back before the Court on 15 April 2015 when counsel for the respondent submitted that the sentence was imposed in error because the Crimes Act 1914(Cth) (‘the Act’) required that a further penalty be imposed upon conviction. The sentencing magistrate accepted the submission and there is no challenge to this decision. His Honour proceeded to impose a “nominal” fine of $50 on each count.
The appellant appealed on two grounds, namely:
(a)that the sentencing magistrate erred by recording convictions against the defendant; and
(b)the sentencing magistrate erred by imposing fines without taking into account the financial circumstances of the defendant.
The offending
The offending occurred on 16 December 2013 which was also the appellant’s 18^th birthday.
He had arrived in Australia on board a suspected illegal entry vessel and had been detained on suspicion of having been an unlawful noncitizen. On 16 December 2013 he was in detention at the Wickham Point Detention Centre near Darwin. On that day, along with a number of other detainees, he was conveyed to the Sanderson School for an English language class. The school is classified as a place of detention. During the course of the afternoon it was discovered that he was missing. Later in the afternoon he was located at the Darwin airport attempting to board a flight for Melbourne. He was in possession of a Vietnamese passport issued in another name along with a boarding pass for the flight to Melbourne.
In a subsequent record of interview the appellant said he had gone to the airport because he “wanted freedom”.[1] He then gave different, and apparently false, explanations as to how he got to the airport. When asked who paid his taxi fare to the airport he said he did not know. He said he met some Vietnamese people at the airport who bought him an airline ticket. He said he did not know who they were. When it was put to him that he had met a person at the school who paid for his taxi fare to the airport and gave him a passport, credit card and arranged for his flights, he refused to comment.
At the time of the offending he had been in detention for some 275 days. It was submitted that he was in a state of “total uncertainty as to the duration of his detention”[2] and how that detention would end. He had reason to believe he would be deported to Vietnam where he was fearful of religious persecution. It was submitted that the motivation for his escape was fear. The Court was advised that as a direct result of his escape he had been transferred to the Christmas Island Detention Centre and was only permitted to return to Darwin to face court. It was submitted to the sentencing magistrate that a conviction should not be recorded.
The magistrate imposed a conviction in relation to each count.
When the matter came back before his Honour on 15 April 2015 his Honour accepted that an error in sentencing had occurred and, without hearing further submissions as to penalty, fined the appellant $50 on each count noting:
If I have slipped up, and I am not completely sure that I have, but in the circumstances I will impose a nominal fine, which should fix the situation if I did slip up.
Recording of convictions
The appellant complained that the sentencing magistrate failed to correctly apply the provisions of s 19B of the Act to the circumstances of his case.
Section 19B of the Act provides for the discharge of offenders without proceeding to conviction. It is in the following terms:
(1) Where:
(a) a person is charged before a court with a federal offence or federal offences; and
(b) the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:
(i) the character, antecedents, age, health or mental condition of the person;
(ii) the extent (if any) to which the offence is of a trivial nature; or
(iii) the extent (if any) to which the offence was committed under extenuating circumstances;
that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;
the court may, by order:
I dismiss the charge or charges in respect of which the court is so satisfied; or
(d) discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph I, upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with (conditions as specified in sub sections (i)-(iii).
It is accepted that the exercise of the discretion to discharge an offender without proceeding to conviction consists of a two-stage process.[3] The first stage is the identification of a factor or factors within s 19B(1)(b) of the Act and, the second, having regard to that factor or those factors, the determination of whether it “is inexpedient to inflict any punishment” or to reach the other conclusions provided in the paragraph.
The appellant argued that the magistrate failed to have regard to material considerations in determining whether the discretion to proceed without conviction had been enlivened. It was submitted that the appellant fell within the ambit of s 19B(1)(b)(i) of the Act (his “character, antecedents, age, health or mental condition”) and also s 19B(1)(b)(iii) of the Act (the offences were committed under extenuating circumstances). It was not argued that the offending was of a trivial nature and the appellant therefore did not seek to rely upon s 19B(1)(b)(ii) of the Act. The respondent argued that none of the relevant matters was present and the discretion had not been enlivened.
In the reasons for decision the sentencing magistrate did not specifically address those provisions or declare that his discretion under the section had been enlivened. When the issue of a discharge without conviction was raised by counsel for the appellant his Honour observed that he thought “a conviction was appropriate given the devious nature of what occurred” and invited counsel to address that issue. Both counsel took his Honour through each of the matters referred to in s 19B(1)(b) of the Act. His Honour then adjourned the matter for consideration.
Later that morning the sentencing magistrate delivered the following short, ex tempore, reasons:
I do take into account his pleas of guilty. I’m asked to not record conviction. In my view, having regard to the legislative framework and the criteria set out therein and all the matters put to me by Ms Ker, I am of the opinion that a conviction must be and should be recorded.
This goes beyond a man just scaling a fence under some emotional distress in a foreign land. He took part in a planned and devious attempt to further his escape by obtaining support and false identity documents, and he was only caught at the last moment before he was able to get on a plane and disappear. That was not, as I say, an opportunistic and simple scaling of a fence and being caught immediately thereafter or without much time difference. And, in my view there ought to be some kind of denouncement. He was being held by the authorities lawfully, after coming here unlawfully, and I think a conviction is appropriate.
Having regard to the other matters put to me by Ms Ker, the time he spent in detention, he has been brought here in handcuffs, humiliation that occurred from that, and his youth, I think the matters can be comfortably disposed of by way of a conviction and discharge on both matters and I tender and record that as the appropriate penalty, having regard to all the principles and guidelines set out in the Commonwealth legislation to do with such matters.
When the matter returned to the Court to be corrected his Honour did not revisit the issue of whether convictions should be imposed but, rather, proceeded to fine the appellant $50 on each count.
In my opinion it is apparent from the sentencing remarks that the magistrate did regard his discretion under the second stage of the two-stage process provided for by s 19B(1)(b) of the Act to be enlivened. However, he concluded that, in light of all of the circumstances, it could not be said that it was “inexpedient to inflict any punishment other than a nominal punishment”.[4]
When considering the adequacy of the reasons it must be borne in mind that his Honour dealt with this matter in the midst of a busy list. As has been observed on numerous occasions, it is the substance of what the magistrate said and did that must be considered.[5] An appellate court is entitled to assume that the magistrate has considered all matters which are necessarily implicit in the conclusion reached. It is to be assumed that the magistrate is well aware of the sentencing options available particularly where, as here, appropriate dispositions have been raised in the course of submissions.[6] It is necessary to ascertain the essential thrust of the reasoning processes applied.[7]
There was a strong basis for his Honour to proceed in that way. As is acknowledged on behalf of the appellant the offending was not trivial, indeed, it was serious. Escaping from immigration detention has the effect of undermining the operation of laws with respect to migration in Australia. Such offending has the effect of disrupting the orderly administration and management of detention centres. In this case the appellant was involved in an escape which suggested considerable forethought and planning. He departed from the education institution and was transported to the airport where he was found in possession of a foreign travel document which he knew was not issued to him. He had possession of a boarding pass to enable him to leave the Northern Territory and travel to Victoria. As the sentencing magistrate observed, the offending went well beyond someone impulsively scaling a fence in circumstances of emotional distress. He was lawfully in detention and, with the assistance of another or others, planned his escape from that lawful detention. It was not a case of the appellant, on the spur of the moment, seizing an opportunity to run away. This was a “planned and devious attempt”[8] to enable him to escape the detention centre and travel interstate, presumably to disappear into the community. His apparent intention was to subvert the detention regime.
When he was apprehended the appellant told lies to the authorities. He did not provide any assistance to them. They, no doubt, incurred expense and inconvenience in locating and apprehending the appellant and in the investigation of his conduct. He has not demonstrated any remorse.
The appellant was a young man who was living in what for him must have been stressful conditions. Those are mitigating factors. However this was considered and planned offending of a relatively serious kind striking at the heart of the detention regime. General deterrence is a major consideration in determining an appropriate sentence.
In my opinion the nature and circumstances of the offending required that convictions be recorded. The recording of a conviction in each case was an appropriate response.
Failure to enquire into financial circumstances
The appellant complained that the sentencing magistrate should not have imposed the fines without enquiring into the financial circumstances of the appellant and his capacity to pay. Section 16C(1) of the Act provides that a court must take into account the financial circumstances of the person before imposing a fine. The applicable considerations were summarised by Roberts–Smith J in Djou v Commonwealth Department of Fisheries[9] as follows:
(1)A fine is not to be imposed without an assessment of the offenders means to pay it;
(2)A fine must be within the capacity of the offender to pay;
(3)A fine should not be imposed where the offender has no capacity to pay;
(4)A court is not precluded from imposing a fine because the offender’s financial circumstances cannot be ascertained by the court;
(5) In a case falling within (4), the fine must reflect the gravity of the offence;
(6) …
The respondent submitted that the sentencing magistrate was aware the appellant was a person in immigration detention and had been in detention for some 275 days at the time of the offending. His Honour had some idea of the circumstances of the appellant. However, it was conceded that his Honour did not have information which permitted him to assess the appellant’s means to pay any fine, nor whether it was within the capacity of the appellant to pay the fine. It was conceded the appeal must be allowed on this ground.
The appeal is allowed. It is necessary to resentence the appellant.
Resentence
In my opinion, and for the reasons discussed above, each of the offences required the recording of a conviction. In my opinion, in all the circumstances, it is not appropriate to discharge the appellant without proceeding to conviction. He will be convicted on each count. In relation to each count he will be released upon his giving security in the sum of $500 own recognisance that he will be of good behaviour for a period of six months from this day.
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[1] CSJ Transcript dated 10 April 2015 at p 3.

[2] CSJ Transcript dated 10 April 2015 at p 5.

[3] Commissioner of Taxation v Baffsky (2002) 192 ALR 92 at 96; (2001) 122 A Crim R 568.

[4] Section 19B(1) of the Act.

[5] Acuthan v Coates (1986) 6 NSWLR 472 at p 478.

[6] Henda v Cahill [2009] NTSC 63 at par [10].

[7] Bird v Peach [2006]17 NTLR 230; [2006] NTCA 7at par [9].

[8] CSJ Transcript dated 10 April 2015 at p 10.

[9] (2004) 29 WAR 216 at p 228.