R v Kellegher

[2015] SADC 159

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal: Disputed Facts Hearing)

R v KELLEGHER

[2015] SADC 159

Reasons for Ruling of His Honour Judge Tilmouth

20 November 2015

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS

Held: It is open to take into account periods of immigration detention in sentencing for offences which have a close connection with such detention.

Criminal Law (Sentencing) Act 1988 (SA) s 30; Nicholls v Police (2007) 97 SASR 431; Muhamad v Australian Fisheries Management Authority [2007] NTSC 4; R v Zainudin (2005) 190 FLR 149; Migration Act 1988 (Cth) s 189, referred to.
PNJ v The Queen (2009) 83 ALJR 384; Darter v Diden and Others (2006) 94 SASR 505, applied.
R v Witter (2011) 111 SASR 293, discussed.

R v KELLEGHER
[2015] SADC 159

1. The defendant Mr Pauric Kellegher was sentenced earlier today to 11 months imprisonment suspended, for an aggravated offence of causing harm with intent to cause harm and of recklessly causing harm.  These reasons explain why the sentence was reduced to take account of time spent in immigration detention.

2. Mr Kellegher is a 30 year old single man from Ireland, in Australia on an extended work permit at the time of the offences.  He was taken into immigration detention on 9 September 2015, his working holiday visa having expired on 7 September 2015.  That is he was detained in an immigration detention centre as an unlawful non-citizen pursuant to s 189 of the Migration Act 1988 (Cth).  An issue arose during the sentencing process as to whether it was open, and if it was, whether it was appropriate to take the period of detention into account in fixing the penalty.

3. The general power to take into account time spent in custody before sentence is conferred by s 30 of the Criminal Law (Sentencing) Act 1988 (SA) which relevantly provides:

   30—Commencement of sentences and non-parole periods

   (2)If a defendant has spent time in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment, the court may, when sentencing the defendant, take into account the time already spent in custody and—

   (a)     make an appropriate reduction in the term of the sentence; or

   (b)     direct that the sentence will be taken to have commenced—

   (i)    on the day on which the defendant was taken into custody; or

   (ii)on a date specified by the court that occurs after the day on which the defendant was taken into custody but before the day on which the defendant is sentenced.

4. This very provision was considered by a unanimous decision of the High Court in PNJ v The Queen,[1] to be construed widely:

   [17] … The expression used in s 30(2), about which the relevant operation of par (b) would hinge, is "[i]f a defendant has spent time in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment". No narrow construction should be given to the words "time in custody in respect of an offence". The better view may be that they are words that in this case would encompass the time the applicant has spent in custody following his arrest for and awaiting trial for the wounding, and the time he has spent in custody serving the sentence imposed on him for the wounding.

   [18] If a person is charged with an offence, taken into custody, and later convicted of that offence, there is no doubt that s 30(2) would apply. But if, as is often the case, the charge that is laid at the time of an offender's arrest is not the charge of which the offender is later convicted, it does not follow that the time served cannot be described as "time in custody in respect of an offence" of which the offender is later convicted. The question is whether the time in custody is "in respect of" (which is to say, is referable to) the offence in question. And where, as here, the applicant's conduct was complete when he was taken into custody but the offence of murder was not complete until the victim died, the expression "time in custody in respect of an offence" may be given the application that has been described.

   [1] (2009) 83 ALJR 384.

5. PNJ was applied by the Court of Criminal Appeal in R v Witter,[2] so as to permit ‘full credit’ to be given for time spent in custody with respect to ‘related breaching offences’, which were not the offences for which the appellant was actually sentenced.

   [2] (2011) 111 SASR 293 at [22].

6. Adopting these principles, there is no doubt that time spent in immigration detention is ‘referable to’ the two offences with which Mr Kellegher is charged.  Although the immediate cause of his detention is the lapsed visa, it only lapsed because of these charges.  Otherwise either the visa would have been extended, or Mr Kellegher would have left the country.  Either way he would not have otherwise been placed in immigration detention.

7. This conclusion is entirely consistent with the decision of Doyle CJ in Darter v Diden and Others,[3] a decision which obviously predates PNJ v The Queen. That case was an appeal against sentences imposed by a Magistrates Court for using a foreign fishing vessel for commercial fishing in the Australian Fishing Zone contrary to s 100(2) of the Fisheries Management Act 1991 (Cth), and of being in charge of a foreign boat equipped for fishing, contrary to s 101(2). The defendants came from a village in Indonesia and were all detained in immigration custody for between 46 days and 51 days. Each faced deportation.

   [3] (2006) 94 SASR 505.

8. The Chief Justice considered that as there was ‘such a close connection between the detention and the offence’, it was appropriate to take the periods in detention into account.[4]  His Honour held:

   [24]  It is also appropriate to take account of the time spent in detention, even though that detention may be a result of the defendant’s immigration status (that is, not being an Australian citizen or the holder of an appropriate visa) rather than a result of the offence itself.  That was the view of the Full Court of the Supreme Court of the Northern Territory in Yusup v The Queen [2005] NTCCA 19 at [13]-[25] per Riley J, with whom the other members of the court agreed …

   [4] Above at [24].

9. This decision has since been followed by Kelly J in Nicholls v Police,[5] and by Reilly J in Muhamad v Australian Fisheries Management Authority.[6]  An identical conclusion was reached by Mildren in R v Zainudin:[7]

   Clearly being held in detention is the same, for all practical purposes, as being held in remand so far as the detainee is concerned.  Considerations of justice require that it be taken into account in a proper case …

   [5] (2007) 97 SASR 431 at [59].

   [6] [2007] NTSC 4 at [34].

   [7] (2005) 190 FLR 149 at [39].

10. It is for the above reasons and on the basis of the above authorities that I determined the head sentence imposed on Mr Kellegher should be reduced by the whole of the 10 weeks he had spent in immigration detention.