R v Abdi

[1994] QCA 402

[1994] QCA 402

COURT OF APPEAL

MACROSSAN CJ McPHERSON JA MACKENZIE J

CA No 218 of 1994
THE QUEEN
v.

ABDULLAHI MOHAMED ABDI Applicant

BRISBANE
..DATE 23/08/94
THE CHIEF JUSTICE: The applicant appeals against a conviction
for an offence that on a date unknown between 28 September
1992 and 25 May 1993, he parted with possession of a document
with intent that it be used to help a person gain entry into
Australia, this being an offence under the Migration Act 1958,
section 81(2A).

The sentence was imposed by a Magistrate at Townsville on this charge on 1 June 1994. The Magistrate's order was that the applicant be convicted and released without sentence being passed, upon his giving security by recognisance in the sum of $2,000 that he be of good behaviour for 18 months. The Magistrate acted under section 21A of the Crimes Act 1914 in making this order. The Magistrate has ordered in addition that the conviction be recorded.

The background circumstances were these: the applicant's cousin in 1993 arrived at Melbourne Airport, and as a Somali citizen sought refugee status in Australia. At the time of his arrival he did not have any travel documentation in his correct name but was in possession of an Australian certificate of identity which had been issued on 28 September 1992 in the name of one Farah Abdul Mohamed, giving a date of birth in July 1967. That person was the brother of the applicant.

The document contained identity details and a photograph relating to the applicant's brother. It also contained immigration stamps, indicating a departed Australia stamp which was not an authentic one. The cousin telephoned the applicant and the applicant then became aware that the intended outline of events had miscarried. The applicant made certain admissions, aware that the intended scheme had come to a dead end.

Behind those events occurring on that date, this was the situation: the applicant's brother had his certificate of identity issued in September 1992. He wanted it so that he could make a trip back to Kenya to help his family. To acquire that certificate of identity the applicant's brother had been required to produce travel tickets, which he did. He received the certificate of identity in due course but the trip was postponed and a refund obtained for the tickets.

The applicant's brother being left in possession of the certificate, gave it to the applicant for the purpose of arranging visas to other countries. The applicant, having obtained the visa as his brother asked, then, without the knowledge of his brother sent the certificate of identity to Kenya via some people who were travelling there. He, the applicant, declined to disclose the identity of these persons.

The intention of the applicant was that the document be

delivered to his cousin, so his cousin could use it to travel
to Australia. This was the purpose for which it was used.
The applicant told his cousin to keep the document intact if
he could after he had used it on his arrival in this country.
The applicant said that he knew nothing about the false stamp
which had been placed on the document, but of course he was
involved in the intended deceptive use of the document. That
appears from what I have already said. The applicant
conceded, when questioned, that he knew that what he was doing
was wrong. He said his sole motivation was that he believed
that if his cousin could come to Australia, the cousin would
be able to help the applicant support their family in Kenya.
The applicant said that his family was facing significant
economic hardship and he was under tremendous pressure from
his families, that being stated in the plural I think in the
sense of extended families in various African countries and
Yemen in addition.
The applicant is an Australian citizen and he had arrived in
this country as a Somalian refugee in December 1986. He was a
49 year old at the date of the proceedings below and he had no
previous convictions recorded. The contention on behalf of
the applicant is that a conviction should not have been
recorded by the Magistrate who dealt with the matter. The
applicant's submission is that the Magistrate should have
proceeded under section 19B of the Crimes Act. The Magistrate
has chosen to proceed under section 20(1)(a) which provided a
discretion, if the Magistrate thought fit, to release the
person involved upon his giving security with or without
sureties by recognisance to be of good behaviour for a
specified period.
No objection is made on the applicant's behalf to the
sentence, other than in respect of the conviction which was
imposed. Indeed, it could not sensibly be suggested that for
a significant offence the Magistrate acted in any way that was
excessive in ordering simply that the applicant enter into a
recognisance to be of good behaviour. The amount of the
recognisance was $2,000 and the period specified was 18
months.

It is said, in support of the submission that a conviction should not have been recorded; that in the particular circumstances of this case the fact of recording the conviction involved an excessive penalty because of the applicant's professional background and qualifications. It was said that he would be seriously disadvantaged by the recording of a conviction. That last submission is not unfamiliar to the Court.

It is from time to time contended that a particular applicant would be disadvantaged to an extent beyond the ordinary by the imposing of a conviction. The applicant has a number of professional qualifications. He has a medical diploma which is part of the record issued in the USSR, as it then was. He was described as being in a position where he would complete a Masters degree within the next two years in public health and tropical medicine at the James Cook University. He has a number of languages at his command. These matters are then relied on in support of the application that leave be granted and the penalty imposed set aside so far as the recording of the conviction is concerned.

It appears to me that there are distinct public elements of importance involved in an offence of this kind; that is, under the Migration Act. There is a public interest in having matters regulating migration being properly administered. The regulation of such matters, in my view, can be regarded as better served by not allowing the tracks of infringers in this area to be covered.

I do not think that any substantial case is made out that the applicant was significantly disadvantaged beyond the average person's situation by the fact of the recording of a conviction. The applicant knew that what he was doing was wrong when he lent himself to the scheme. He admitted to his wrong-doing only after the scheme had been discovered. His cooperation with the authorities, even after the discovery of the scheme, was limited. He declined to reveal the identities of those other persons whose assistance he had utilised in having the documentation taken to his cousin abroad, that is the certificate which was used on the entry to Australia.

Certificates of identity of the kind in question are, in the respondent's admission, items of value. That can be accepted.

There is an element of trust imposed upon the recipients of

such certificates to use them, in my view, only for the
purpose for which they are issued and the applicant having
come into possession of the certificate in question here
should not have used it in the way that he did. All in all I
do not consider that a case has been made out that the
sentence in respect of the imposition of the conviction
involved any manifestly excessive penalty or otherwise
involved a penalty which should result in this Court
interfering. I would refuse the application.

McPHERSON JA: I agree. Underlying the submissions on behalf of the applicant is the proposition that the discretion of the Magistrate miscarried in recording a conviction, having regard to the impact it would have on the applicant's future or his career. The difficulty confronting the applicant in that regard is that there is no precise evidence or even indication in the material to show what particular detriment will result for the applicant from a recording of the conviction for this offence.

By that I mean a detriment beyond that which is experienced by
anyone in the community from having a conviction against his
or her name. It is now shown, for example, that the applicant
will not be permitted to complete the Masters degree that he
is now studying for at university, nor is it shown that he
will, on account of that conviction, be refused registration
as a medical practitioner if that is what he proposes, which
is something we do not know.
Even if it were shown that that result would follow, we would
have to ask ourselves the question whether it was our duty to
interfere with that process, rather than that the relevant
body be left to determine whether that consequence should
follow. If, in those circumstances, we were in this case to
upset the recording of the conviction, we would, as I see it,
be doing so on the footing that some unspecified detriment
usually does follow from recording a conviction and that
therefore that course should generally not be taken. That
would, in my view, not be a proper attitude to adopt in
relation to a provision like section 19B.
What I have said so far, in any event, rather assumes that the
Magistrate may have gone wrong in the approach that he

adopted. The matter was, however, one within his discretion.

He exercised his discretion to record the conviction and it

is not evident from anything that he said, or anything that
passed before him at the hearing, that he exercised his
discretion incorrectly. In these circumstances I do not think
that we can justifiably intervene to reverse the decision that
was given below. I would therefore, for those reasons and for
the reasons that have been given by The Chief Justice, refuse
the application in this case.

MACKENZIE J: I am satisfied that it has not been demonstrated that the Magistrate's exercise of discretion in recording a conviction miscarried in any way. I agree with the remarks that have been made by both the learned Chief Justice and my brother, McPherson, and agree with the order proposed.

THE CHIEF JUSTICE: The application is refused.

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