Police v Kakar; Elder v Kakar - [2005] SASC 222

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v KAKAR; ELDER v KAKAR
Judgment of The Honourable Justice Gray
17 June 2005
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE - ESCAPE - SENTENCING
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CHARACTER OF OFFENCE
CITIZENSHIP, IMMIGRATION AND EMIGRATION - IMMIGRATION STATUS - NON-CITIZENS - DETENTION AND REMOVAL FROM AUSTRALIA
Crown appeal against sentence imposed by magistrate - respondent pleaded guilty to two counts of escaping immigration detention, section 197A Migration Act 1958 (Cth) - in relation to the first count, magistrate discharged respondent without conviction upon his entry into a recognizance in the sum of $100 to be of good behaviour for two years, in respect of second count, the appellant was released without penalty - Crown appealed on grounds that magistrate: failed to give effect to the policy and purpose of section 197A of the Migration Act; paid insufficient regard to the seriousness of the offence; paid insufficient regard to the need for deterrence; and that the sentence imposed was manifestly inadequate.
Consideration of principles discussed in Morrison v Behrooz [2005] SASC 142 - consideration of legislative scheme of Migration Act and seriousness of offence of escape immigration detention - consideration of two offences - consideration of personal antecedents, including mental health, of respondent - consideration of section 16A of Crimes Act 1914 (Cth) and the sentencing process - consideration of section 19B of Crimes Act and the two stage process.
Held - appeal allowed for purpose of setting aside the penalty imposed by the magistrate in respect of the second offence - in respect of the second offence, respondent convicted and released forthwith upon entry into recognizance to be of good behaviour for three years pursuant to section 20(1)(a) of the Crimes Act.
Migration Act 1958 (Cth) s 4, s 189, s 197A; Crimes Act 1914 (Cth) s 4J, s 16A, s 19B, referred to.
Morrison v Behrooz [2005] SASC 142; Shillabeer v Hussain [2005] SASC 198; Everett v Hussain (1994) 181 CLR 295; Police v Cadd (1997) 69 SASR 150; R v Knight (1986) 40 SASR 479; R v Shepperbottom (2001) 212 LSJS 486; R v Stokes [2001] NSWCCA 82; Bailey v Kupsch [1966] Tas R (NC 20); Commissioner of Taxation v Baffsky (2001) 192 ALR 92; Cobiac v Liddy (1969) 119 CLR 257; R v Briese [1998] 1 Qd R 487; Newcombe v Police [2004] SASC 26, considered.

POLICE v KAKAR; ELDER v KAKAR
[2005] SASC 222
Magistrates Appeal
GRAY J:
Introduction

This is a Crown appeal against sentence.
On 30 November 2004 Aftab Kakar pleaded guilty to two counts of having escaped immigration detention from the Woomera Immigration Reception and Processing Centre contrary to section 197A of the Migration Act 1958 (Cth). The escapes occurred on 29 March and 27 June 2002. Mr Kakar was sentenced pursuant to section 19B of the Crimes Act 1914 (Cth). In relation to the offence of 29 March 2002, Mr Kakar was released without conviction upon entering into a recognizance in the sum of $100 to be of good behaviour for 12 months. The sentencing magistrate dismissed the second count without penalty.
Circumstances of the Offending
An agreed summary of facts recounted the circumstances of Mr Kakar’s offending of 29 March 2002:
Prior to and on Friday 29 March 2002 a group of demonstrators, protesting against the detention of refuges at the WIRPC, arrived at Woomera and made a campsite in an open paddock approximately 450 metres south of the WIRPC.
At about 6.00pm on Friday 29 March 2002 approximately 250 protestors breached the restricted area. They crossed open paddocks until they reached an unoccupied compound on the southern side of the road opposite the Detention Centre where a number of protesters pulled down the cyclone wire fences. At the same time a number of flares were discharged whilst other protestors waved flags. These actions incited the detainees within the centre with detainees climbing on rooftops, waving banners and chanting. Detainees breached the inner perimeter fences and entered the sterile zone between the cyclone wire fence and the outer palisade fence.
The protestors made their way from the overflow compound and went to the southern side of the Detention Centre approximately 40 metres west of the main entrance.
The protestors pushed up against the palisade fence and about 70-90 detainees arrived in the sterile area adjacent to the protestors. Both the protestors and the detainees began a noisy demonstration with detainees climbing and shaking the palisade fence. A number of small hand tools including wire cutters, pliers, a spanner and pocket knife was [sic] thrown over the palisade fence by the protestors. The detainees attempted to breach the palisade fence using this equipment.
A short time later the outer palisade fence was breached in two places with numerous palisade palings being damaged or removed. Detainees had removed volley ball posts and shade cloth supports (galvanised pipe with concrete attached to the bottom) and used these as levers to damage the palisade fence. A number of detainees escaped through holes made with the aid of protestors and decamped the area. Detainees within the Detention Centre continued to throw rocks at ACM staff and advanced towards staff with weapons including palisade palings as spears, steel posts, sling shots and other weapons. Detainees escaped.
APS and South Australia Police (SAPOL) recaptured some detainees shortly after their escape. A number of protestors were also arrested by SAPOL and taken to the Woomera Police station. When order and control was restored, staff from the medical centre treated staff and detainees for minor injuries.
A total of 50 detainees escaped, including … [Aftab Kakar].
In relation to Aftab Kakar – About 4.50am on Saturday 30^th March 2002, SA Police attended at the Woomera to Pimba Road, approximately 2 kilometres from Woomera. The defendant was one of 6 escapees from WIRPC found in a white van along with 3 non-detainees. The defendant was arrested and conveyed to Woomera Police Station.
Mr Kakar spent eight days in custody in relation to the March 2002 offending.
The circumstances of Mr Kakar’s offending of 27 June 2002 were also agreed:
At about 10.13pm on Thursday 27 June 2002, five or six vehicles containing between 12-20 people arrived at the Woomera Immigration Reception and Processing Centre (WIRPC) parking their vehicles about 30 metres from the corner of the south west fence. They were sounding their car horns and chanting.
At this time a group of detainees in one of the compounds breached their compound fence and entered sterile zone. About 60-80 detainees walked along sterile zone to area where the people outside the WIRPC were standing. The people outside fence passed items to the detainees who had climbed onto the palisade fencing and began cutting the razor wire. Others outside the fence threw blankets and a large banner onto the razor wire on top of the palisade fence. They also passed star pickets through the palisade fence to the detainees. The detainees and the people outside the WIRPC then used the star pickets to prise open the palisade fence.
At about 10.30pm, the palisade fence was breached with one palisade fence strap being damaged and bent away from the palisade fence. At this point, and within four minutes, thirty five detainees escaped through the breach in the fence. They got into vehicles used by the people assisting with the escape and were driven toward Woomera township.
None of the detainees had permission to leave the detention centre. 35 detainees escaped in total. It is alleged [that Kakar] escaped.
…
About 5.17am on Sunday 30 June 2002 SA Police located Kakar with another escapee in Port Augusta West. He was taken to the Port Augusta Police Station where he was searched and lodged.
Personal Antecedents
Mr Kakar, an Afghan, was born on 1 January 1975. He was raised in a Muslim family and was one of four sons. He belonged to the Kakar tribe. The Taliban murdered one of Mr Kakar’s brothers six months before he came to Australia.
Mr Kakar was employed in Afghanistan as a watchman and porter. He was married with children, however, since being in detention he has been unable to recall the details of his life in Afghanistan. Mr Kakar has had no formal education. He does not speak conversational English. He recounted that due to his ethnicity and religion, both the Mujahadin and Taliban groups in Afghanistan wanted him to fight in their armies. He feared that if he did not fight for them he would be killed. Mr Kakar believed his life was in danger in Afghanistan. He arrived in Australia during 2001 with the assistance of people smugglers. Mr Kakar believes that since he has been in Australia, the Taliban have killed his father. He has had no direct contact with his family since he has been in Australia.
A psychological report dated 15 November 2004 was before the magistrate at the time of sentencing. The psychologist noted that Mr Kakar appeared to be depressed, but not suicidal. The psychologist reported that Mr Kakar was suffering from insomnia and was of normal intelligence. However, in the psychologist’s opinion:
… [T]here was no clinical evidence to suggest that Mr Kakar suffers from a psychotic illness (break with reality), intellectual disability, drug or alcohol abuse problems, or a serious personality disorder.
Although no psychotic illness was diagnosed, the psychologist noted that Mr Kakar had experienced feelings of depression whilst in Afghanistan. He was fearful of the fundamentalist Muslim regime. This contributed to his depression. Mr Kakar’s depressive condition was exacerbated when in detention in Australia. He reported sleeping problems. He twice engaged in self-mutilation. Mr Kakar reported feeling depressed at his lack of personal freedom and privacy. He felt degraded when staff referred to him by identification number rather than by name. He also experienced feelings of deep rejection associated with his visa application process. He further reported feeling very depressed when thinking about the welfare of his family.
When asked why he had escaped immigration detention, Mr Kakar replied:
I was really fed up and tired of life in detention centre. When the protestors came behind the fence, the detainees inside, and that was a 1,000 of them, because it was a big rush at that time. All these people were saying that the protestors were the high profile lawyers they were the people who would continue our application and they are the people to whom we could give out statements and applications and they could for instance assist us.
…
The people responsible are the people who were at the fence, who broke the fence and who opened the fence. And those people are responsible, that’s why they made us escape and that’s why I’m not escaping now because there is not opening in there now and there are no protestors.
…
I feel that it is a bad thing to do and I feel sorry about it and I think it was breaking the law. I was not mentally able to think properly and I was basically mad. I saw the people outside the fence and the people inside told me that they were high profile lawyers and that they would be able to help us.
When asked whether he would be likely to offend again Mr Kakar replied:
No I don’t want to break the law. I wouldn’t break the law because I respect the law and I want to obey the law. If I was a person to break the law I would have done so a lot of times in Afghanistan because it is very easy to do, to break the law in Afghanistan. So I just want to follow it.
Proceedings before the Magistrate
Both parties consented to the proceedings being dealt with summarily pursuant to section 4J of the Crimes Act.[1] As a result, Mr Kakar was exposed to a maximum sentence of 12 months’ imprisonment in respect of each offence.
[1] Section 4J of the Crimes Act 1914 (Cth) relevantly provides
Mr Kakar was sentenced at the same time as two other detainees. In relation to Mr Kakar, the magistrate delivered the following remarks on penalty:
You have each pleaded guilty to these various escapes. The facts are quite brief. In each instance you escaped from detention with the assistance of protestors. You were in the presence of those people for a period. In some instances you were then abandoned by those people, and your counsel is critical of your abandonment. Having been then detained you were in custody on these matters before being returned to immigration detention. It is really not possible in the scope of these reasons to canvas [sic] all of the material provided to me. I am very mindful of the material that is before me that relates to conditions at Woomera, I am particularly mindful of the very detailed and helpful reports by Mr Balfour.
The issue of the regime has been commented on particularly by Justice Kirby in the High Court in his remarks in the matter of Behrooz particularly in paragraph 97. Those remarks tend to echo the material that is present today from Justice Bhagwati and the other material provided to me by your counsel.
I had a brief discussion with your counsel as to whether the court is able to proceeded [sic] pursuant to Section 20BQ of the Crimes Act, this issue may become important but it is important to note that each of you have entered a plea of guilty to these charges. In my opinion section 19B of the Crimes Act is available where the charge has been proved. I n my opinion the charge here has been proved on the plea of guilty. In my opinion Section 20BQ is not now available. There are many similarities between the three of you particularly as far as your health is concerned.
In your case Mr Kakar, you are described as suffering from a mental illness and you are suffering from a depressive illness.
…
Mr Kakar, you have escaped on two occasions. Mr Balfour in his remarks makes reference to your concern about an ID number. When these matters have been before the court reference to these numbers has been made. It is a very unusual thing in our society to refer to people by numbers. We are a community which prides itself on our individuality and the promotion of identity. My recollection is this was a topic upon which Justice Gaudron spoke on one occasion. You told Mr Balfour that you thought you had gone mad with chronic boredom. You told Mr Balfour that you were married, that you had forgotten the name of your wife. You could not remember the details of your marriage or your children. It is little wonder that Mr Balfour reaches the conclusion about your health that he does. He comments too about your self-harm.
…
In your case Mr Kakar in connection with the offence of 29 March 2002 count one, I think it appropriate to proceed pursuant to Section 19B of the Crimes Act; that is so because of your mental condition. As to that count, without proceeding to a conviction you are discharged on entering into a bond in the sum of $100 to be of good behaviour for 12 months. In connection with the second count the escape on 27 June 2002, and given the order that I have made already in connection with count one, it is appropriate to order as I do that count 2 stands dismissed.
The magistrate’s remarks suggest that he took into account material tendered by counsel for Mr Kakar related to general conditions of detention within Australia. However, the magistrate did not refer to the content of that material or identify its relevance to sentence.
Further, in his sentencing remarks the magistrate did not discuss the seriousness of the offences, the policy behind the legislation or the importance of general deterrence.
The magistrate addressed section 19B of the Crimes Act. This section empowered the magistrate to proceed without recording a conviction. However, the magistrate did not identify or embark upon the required two-stage process required by section 19B. The two-stage process was necessary to determine whether Mr Kakar’s circumstances met the statutory criteria.
Legislative Scheme
Recently, reasons were delivered in the matter of Morrison v Behrooz.[2] That case concerned a Crown appeal against a magistrate’s sentence for escaping immigration detention and involved similar factual and legal circumstances to the present case.
[2] Morrison v Behrooz [2005] SASC 142; See also Shillabeer v Hussain [2005] SASC 198.
In Behrooz the Court considered the legislative scheme of the Migration Act. Relevant observations from the decision may be summarised as follows:[3]
-     by enacting the Migration Act, the legislature intended to institute a policy concerning immigration detention.
- the offence provisions, such as section 197A, form part of this policy.
- the gravity of the offence in section 197A is evident from the legislative scheme and from the stipulated maximum penalty.
-     the provision seeks to discourage incidents of violent protests, assaults on officers and escapes.
-     this policy is a material consideration when sentencing an offender under this section.
[3] Morrison v Behrooz [2005] SASC 142 at [17]-[23].
The legislature amended the Migration Act in 2001, increasing the maximum penalty for escaping immigration detention from two to five years imprisonment. The explanatory memorandum suggested that the legislature intended to increase the deterrent effect of the sentence by equating the offence with an offence of escaping lawful custody. In Behrooz, the court also considered the common law dealing with escaping from other forms of lawful custody.[4] It was concluded that the seriousness of an escape depends upon the circumstances and type of custody or detention. However, the sentence should, where possible, deter those in custody or detention from escaping.[5]
The Appeal
[4] R v Shepperbottom (2001) 212 LSJS 486; R v Knight (1986) 40 SASR 479.
[5] See for example R v Stokes [2001] NSWCCA 82; Bailey v Kupsch [1966] Tas R (NC 20).
The grounds of appeal advanced by counsel for the Crown were as follows:
-the magistrate failed to give effect to the policy and purpose of section 197A of the Migration Act;
-the magistrate paid insufficient regard to the seriousness of the offence;
- the magistrate paid insufficient regard to the need for deterrence; and
- the sentence imposed was manifestly inadequate.
A prosecution appeal against sentence may only be justified in the rare and exceptional case. This is because a prosecution appeal puts the liberty of an offender in jeopardy for a second time. As observed in Everett v The Queen[6] and Police v Cadd,[7] an appellate court may intervene where there has been an error in sentencing principle, where it is necessary to maintain an appropriate degree of uniformity in sentencing or where it is necessary to maintain adequate sentencing standards.
[6] (1994) 181 CLR 295.
[7] (1997) 69 SASR 150.
As noted in Behrooz,[8] even where there was an error in the sentencing process, the final sentence may still be appropriate. In such a case, an appeal court may identify and correct the error of sentencing principle but dismiss the appeal against sentence.
[8] [2005] SASC 142.
Counsel for the Crown submitted that the magistrate failed to have regard to the need for the sentence imposed to facilitate personal deterrence, given that Mr Kakar committed the two offences. It was submitted that the magistrate had erred in imposing a lesser penalty for the second escape. The Crown submitted that the magistrate failed to distinguish between the penalties given to Mr Kakar, who escaped twice, and those imposed on detainees who had only escaped once.
The Two Escapes

Mr Kakar’s escapes took place in the context of two large demonstrations and involved many others. Protestors encouraged and facilitated the escapes. Both escapes involved exiting through a perimeter fence. While it is possible that the first escape was unplanned and was instigated by protestors, during the second escape, Mr Kakar knew or ought to have known that leaving detention was a serious offence.
The magistrate erred in his approach to the second count. He imposed no penalty at all for the second escape. He did so having regard to his decision not to record a conviction on the first count and to release Mr Kakar on a good behaviour bond. Such an approach treats the more culpable second escape as a less serious matter. This approach is incorrect. As a result of the first escape, Mr Kakar spent eight days in custody, had been charged, and had been taken before the Court. At the time of the second escape, Mr Kakar was well aware that such conduct was contrary to the law. His criminal culpability on the occasion of the second escape was necessarily the greater.
The Policy and Purpose of the Migration Act
Unlawfully escaping from immigration detention is contrary to the policy and purpose of the Migration Act. When sentencing Mr Kakar, the magistrate was obliged to consider the legislative scheme of the Migration Act, including the seriousness of the offence and the public interest in personal and general deterrence.
In the present case, by failing to even mention the need to address the principle of deterrence or the seriousness of the offence, the sentencing process miscarried. As observed by the New South Wales Court of Criminal Appeal in Wall[9] and more recently by this court in Behrooz,[10] as the magistrate failed to mention the seriousness of the offending or the need for deterrence in his remarks, it may be inferred that he overlooked these matters. The magistrate failed to have regard to the seriousness nature of Mr Kakar’s offending. Nor did he have regard to the need for the sentence imposed to reflect a degree of personal deterrence.
[9] [2002] NSWCCA 42 at [83]-[86].
[10] Morrison v Behrooz [2005] SASC 142 at [54-59].
The magistrate’s approach led to a situation where he failed to have regard to the policy considerations underlying the legislation on the question of general deterrence. The magistrate only briefly referred to the fact that this was Mr Kakar’s second escape. There is no indication in the magistrate’s reasons that Mr Kakar’s offending behaviour was considered to be of a more serious nature than that of the other detainees. There is no indication that the magistrate considered the need for personal deterrence when sentencing Mr Kakar. The second escape offence was dismissed without penalty. Even if there were other compelling reasons to proceed in this manner, it was important for the magistrate to explain why those reasons outweighed other important sentencing considerations. He did not do so.
Section 19B
The magistrate proceeded to sentence Mr Kakar pursuant to section 19B of the Crimes Act. This section requires the sentencing authority to undertake a two-stage process: first, ascertain whether one or more of the factors identified in section 19B(1)(b) exist and then determine, if appropriate, that having regard to the factor or factors so identified, whether it is inexpedient to inflict any punishment or to reach one of the other conclusions for which section 19B provides. These issues are discussed fully in Behrooz.[11]
[11] [2005] SASC 142.
The magistrate did not undertake the two-stage process required by section 19B and as a result, the sentencing process miscarried. In particular, the magistrate failed to take into account the legislative regime underlying the offence, the seriousness of the offence and the need for general and personal deterrence when proceeding pursuant to section 19B. The legislative scheme of which the offence of escaping immigration detention formed a part was a relevant matter to consider when proceeding pursuant to section 19B.[12] This legislative scheme emphasised the seriousness of the offending and the need for sentences imposed to provide general deterrence. The sentencing magistrate erred in the process of sentencing Mr Kakar. As a result, it is necessary for this court to consider re-sentencing Mr Kakar.
Re-sentence
[12] Commissioner of Taxation v Baffsky (2001) 192 ALR 92.
Further Facts
Further material relevant to Mr Kakar’s personal antecedents was placed before this Court. No objection was taken by the Crown to the receipt of this material.
Progress notes for the period from September 2004 to February 2005 compiled by a counsellor at Baxter Detention Centre reported that Mr Kakar appeared to be frustrated by the delay in his visa application process and the conditions of his detention. However, the notes indicate that during this period Mr Kakar displayed no mental health problems of concern.
Section 19B Discretion
On the hearing of the appeal counsel for the Crown accepted that the first stage of the section 19B process was satisfied. The discretion to proceed pursuant to section 19B was enlivened by Mr Kakar’s cultural background, age and mental health. These factors should then be considered along with all other relevant matters in deciding whether to exercise the enlivened discretion in favour of Mr Kakar.
As observed in Behrooz[13], regard must be had to the strong public interest in the need to deter others from this type of offending. In Mr Kakar’s case, due to the repeat nature of his conduct there is also a public interest in the sentence imposed have a personal deterrent effect. The policy of the Migration Act makes it clear that the detention of unlawful immigrant and the orderly operation of immigration detention centres constitutes a material consideration when sentencing offenders under section 197A of the Migration Act.
[13] [2004] SASC 142.
There is also a public interest in offenders, particularly offenders of otherwise good character, being successfully rehabilitated. When re-sentencing Mr Kakar, it is appropriate to have regard to the effect the sentence may have on his future rehabilitation.
As earlier observed, in March 2002 and June 2002, Mr Kakar escaped from the Woomera Immigration Reception and Processing Centre. Both escapes occurred during large-scale demonstrations involving outside protestors. A number of detainees escaped. The escape did not involve any personal violence and there was minimal property damage. Notwithstanding these factors the offences cannot be described as trivial. Both escapes were intentional acts that constituted escapes from immigration detention.
An aggravating aspect of Mr Kakar’s later offending is its repeat nature. Mr Kakar’s conduct resulting in the first escape may be capable of being explained, although not excused, by his particular personal antecedents, his physical and mental health problems and the circumstances giving rise to the escape, such as the role of the protestors. The second escape, however, cannot be viewed in this way. By the time of the second escape, Mr Kakar was or ought to have been aware of the seriousness of his previous conduct. He had already experienced the consequences of participating in a large-scale demonstration where detainees were encouraged to leave detention.
Although the escapes appear to be relatively unplanned, they remain intentional acts. In relation to the first escape Mr Kakar was at large for some two days; in relation to the second, about 24 hours. These are material matters to have regard to when sentencing. They demonstrate the need for the sentencing authority to consider the objects of general and personal deterrence when sentencing for offending of this kind. I have had regard to the serious nature of the offending and the importance of deterrence when re-sentencing Mr Kakar. However, Mr Kakar’s personal circumstances give rise to the need to take a merciful approach to re-sentencing.
Counsel for Mr Kakar submitted that the conditions of his detention were a relevant factor to consider when sentencing. During an interview with Dr Balfour, Mr Kakar described life in detention as a “slow gradual death”. He described feeling humiliated by the lack of personal freedom and lack of certainty or control over his life.
Material describing Mr Kakar’s perception of his conditions in detention has a relevance to his mental health history. Medical evidence before the Court allows the conclusion that Mr Kakar perceived his situation in detention to be intolerable. While Mr Kakar’s perceptions of conditions of detention do not excuse his behaviour, they do provide an explanation for his conduct.
Regard must be had to Mr Kakar’s prospects for future rehabilitation. There is material before the court to suggest that, apart from the offending the subject of the present appeal, Mr Kakar is of good character. He presently remains in immigration detention at Baxter Detention Centre.
It appears that Mr Kakar is not suffering from any serious mental health problems, although he has experienced frustration and a depressed mood as a result of the indeterminate detention. These are relevant matters to consider when sentencing. In R v Briese[14] the Queensland Court of Criminal Appeal observed:
The effect of [a conviction] is capable of considerable effect in the community. Persons who may have an interest in knowing the truth in such matters include potential employers, insurers, and various government departments including the Immigration Department. … For present purposes it is enough to note that the making of an order [to proceed without conviction] has considerable ramifications of a public nature, and the courts need to be aware of this potential effect.… .
On the other hand the beneficial nature of such an order to the offender needs to be kept in view. It is reasonable to think that this power has been given to the courts because it has been realised that social prejudice against conviction of a criminal offence may in some circumstances be so grave that the offender will be continually punished in the future well after appropriate punishment has been received. This potential oppression may stand in the way of rehabilitation … .
A conviction or immediate custodial term of imprisonment could adversely affect Mr Kakar’s ability to obtain a temporary protection visa. There may be other adverse effects.
[14] [1998] 1 Qd R487 at 491; See also Newcombe v Police [2004] SASC 26 at [24-26].
Mr Kakar’s personal antecedents allow a merciful approach to be taken when sentencing. In relation to the first count, it is appropriate in the circumstances to proceed without imposing a conviction and to release Mr Kakar on a good behaviour bond. As a result there is no need to interfere with the order of the magistrate.
In relation to the second count, the later of the offences, it is appropriate to have regard to the repeat nature of Mr Kakar’s conduct, the need for general and personal deterrence and the seriousness of the offence. Mr Kakar’s personal antecedents are also a relevant consideration but do not act to reduce his criminal culpability to the same degree as in relation to the first count. In respect of count two, pursuant to section 20(1)(a) of the Crimes Act, Mr Kakar is convicted and released forthwith upon his entry into a recognizance to be of good behaviour for three years.
If Mr Kakar breaches his recognizance he faces the prospect of being re-sentenced. In the event of breach, the Court is invested with a discretion to make a number of orders one of which includes a revocation of the earlier order and the imposition of an immediate custodial sentence. Section 20A of the Crimes Act relevantly provides:
(1)Where a person has been discharged in pursuance of an order made under subsection 19B(1), or released in pursuance of an order made under subsection 20 (1), and information is laid before a magistrate alleging that the person has, without reasonable cause or excuse, failed to comply with a condition of the order, the magistrate may:
(a)     issue a summons directing the person to appear, on a date, at a time and at a place fixed in the summons, before the court by which the order was made; or
(b)     if the information is laid on oath and the magistrate is of the opinion that proceedings against the person by summons might not be effective—issue a warrant for the apprehension of the person.
…
(2)     Where:
(a)     a person who is served with a summons issued under subsection (1) fails to attend before the court as required by the summons; or
(b)     a person who has been admitted to bail under subsection (4) fails to attend before the court as required by the conditions of his bail;
the court may, on proof of the service of the summons or of the admission of the person to bail, as the case may be, issue a warrant for the apprehension of the person.
…
(5) …
(b)     in the case of a person who has been released in pursuance of an order made under paragraph 20(1)(a):
(i)without prejudice to the continuance of the order, impose a pecuniary penalty not exceeding 10 penalty units on the person;
(ii)revoke the order and, subject to subsection (6), deal with the person, for the offence or offences in respect of which the order was made, in any manner in which he could have been dealt with for that offence or those offences if the order had not been made and he was before the court for sentence in respect of the offence or offences; or
(iii)     take no action; or
…
(6)Where a person who has been discharged in pursuance of an order made under subsection 19B(1), or released in pursuance of an order made under subsection 20 (1), is dealt with under subsection (5) for the offence or offences in respect of which the order was made, the court, in so dealing with the person, shall, in addition to any other matters that the court considers should be taken into account, take into account:
(a)     the fact that the order was made;
(b)     anything done under the order; and
(c)     any other order made in respect of the offence or offences.
(7)Where a person who has been discharged in pursuance of an order made under subsection 19B(1), or released in pursuance of an order made under subsection 20 (1), is dealt with under subsection (5) for the offence or offences in respect of which the order was made, the court may, in addition to dealing with him for that offence or those offences, order that any recognizance entered into by him, or by a surety for him, shall be estreated and any other security given by or in respect of him shall be enforced.
(8)Where a person who has been discharged in pursuance of an order made under subsection 19B(1), or released in pursuance of an order made under subsection 20 (1), is dealt with under subsection (5) for the offence or offences in respect of which the order was made, there shall be such rights of appeal in respect of the manner in which the person is dealt with for that offence or those offences as there would have been if:
(a)     in the case of a person who has been discharged in pursuance of an order made under subsection 19B(1)—the manner in which he is dealt with had been a sentence or sentences passed upon his conviction for the offence; or
(b)     in the case of a person who has been released in pursuance of an order made under subsection 20(1):
(i)the court had, immediately before so dealing with him, convicted him of the offence or offences; and
(ii)the manner in which he is dealt with had been a sentence or sentences passed upon that conviction.
…
Conclusion
The appeal is allowed for the purpose of setting aside the penalty imposed by the magistrate in relation to the second count. In relation to the second count, Mr Kakar is convicted and released forthwith upon his entry into a recognizance to be a good behaviour for three years pursuant to section 20(1)(a) of the Crimes Act.

(1) Subject to subsection (2), an indictable offence (other than an offence referred to in subsection (4)) against a law of the Commonwealth, being an offence punishable by imprisonment for a period not exceeding 10 years, may, unless the contrary intention appears, be heard and determined, with the consent of the prosecutor and the defendant, by a court of summary jurisdiction.
…
(3) Subject to subsection (6), where an offence is dealt with by a court of summary jurisdiction under subsection (1), the court may impose:
(a) where the offence is punishable by imprisonment for a period not exceeding 5 years—a sentence of imprisonment for a period not exceeding 12 months or a fine not exceeding 60 penalty units, or both; or
(b) where the offence is punishable by imprisonment for a period exceeding 5 years but not exceeding 10 years—a sentence of imprisonment for a period not exceeding 2 years or a fine not exceeding 120 penalty units, or both.