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…

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.

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Details

Case: [2005] SASC 222
Decision Date: 17 June 2005

CaseChat Overview and Summary

The Crown appealed against the sentence imposed by a magistrate on Mr Kakar, who had pleaded guilty to two counts of escaping immigration detention under section 197A of the Migration Act 1958 (Cth). In respect of the first count, the magistrate discharged Mr Kakar without conviction upon his entry into a recognizance in the sum of $100 to be of good behaviour for two years. For the second count, the magistrate released Mr Kakar without penalty. The Crown appealed on the grounds that the 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.

The court considered the principles discussed in Morrison v Behrooz and examined the legislative scheme of the Migration Act and the seriousness of the offence of escaping immigration detention. The court also took into account Mr Kakar's personal antecedents, including his mental health, and sections 16A and 19B of the Crimes Act 1914 (Cth) and the two-stage sentencing process. The court held that the appeal was allowed for the purpose of setting aside the penalty imposed by the magistrate in respect of the second offence. Mr Kakar was convicted of the second offence 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.

The court concluded that the magistrate erred in his approach to the second count. The magistrate imposed no penalty at all for the second escape, treating it as a less serious matter. The court found that the magistrate failed to have regard to the seriousness nature of Mr Kakar’s offending, the need for deterrence, and the policy considerations underlying the legislation on the question of general deterrence. The magistrate's approach led to a situation where he failed to have regard to important sentencing considerations. The court held that the magistrate's approach to sentencing Mr Kakar was incorrect.

The court held that the appeal was allowed for the purpose of setting aside the penalty imposed by the magistrate in respect of the second offence. Mr Kakar was convicted of the second offence 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. 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.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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.