Police v Kakar; Elder v Kakar

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.