R v Osenkowski

[2005] SASC 142

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

MORRISON v BEHROOZ

Judgment of The Honourable Justice Gray

15 April 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 escaping immigration detention, section 197A Migration Act 1958 (Cth) - magistrate discharged respondent without conviction upon his entry into a recognizance in the sum of $100 to be of good behaviour for two years - 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 legislative scheme of Migration Act and seriousness of offence of escape immigration detention - 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 - consideration of application of section 20BQ of the Crimes Act.

Held - magistrate erred in sentencing process - magistrate obliged to consider the legislative scheme of the Migration Act; seriousness of the offence of escaping immigration detention and the public interest in effective general deterrence - magistrate obliged undertake the two-stage process required by section 19B of the Crimes Act - appropriate to re-sentence respondent - consideration of further material relevant to sentence - regard had to scheme of Migration Act, seriousness of the offending, need for general deterrence and personal antecedents of the respondent - consideration of two stage process required by section 19B - merciful approach warranted in circumstances - appropriate to proceed without recording conviction and imposition of good behaviour bond - sentence imposed by magistrate appropriate - appeal against sentence dismissed.

Migration Act 1958 (Cth) s 4, s 189 and s 197A; Crimes Act 1914 (Cth) s 4J, s 16A, s 19B and s 20BQ, referred to.
Behrooz v Secretary of Department of Immigration, Migration and Indigenous Affairs (2004) 208 ALR 271; ; Behrooz v Secretary of Department of Immigration, Migration and Indigenous Affairs (2003) 84 SASR 479; Secretary of Department of Immigration, Migration and Indigenous Affairs v Behrooz (2002) 84 SASR 453; Chu Kheng Lim v Minister of Immigration (1992-1993) 176 CLR 1; Minister for Immigration and Multicultural Affairs v Al Kafaji (2004) 208 ALR 201; Al Kateb v Goodwin (2004) 208 ALR 124; Behrooz v Secretary of Department of Immigration, Migration and Indigenous Affairs (2004) 208 ALR 271; Everett v The Queen (1994) 181 CLR 295; Police v Cadd (1997) 69 SASR 150; R v Selleck (2000) 78 SASR 194; Burman v Commonwealth Services Delivery Agency [2004] SASC 224; R v Knight (1986) 40 SASR 479; R v Forrest (1987) 46 SASR 75; R v Cox (1996) 66 SASR 152; R v Shepperbottom (2001) 212 LSJS 486; R v Stokes [2001] NSWCCA 82; Bailey v Kupsch [1966] Tas R (NC 20); Commission of Taxation v Baffsky (2001) 192 ALR 92; Cobiac v Liddy (1969) 119 CLR 257; Jones v Morley (1981) 29 SASR 57; Holmes v Lewinski [2005] SASC 96; Cobia v Liddy (1969) 119 CLR 257; R v Miceli [1998] 4 VR 588; Osenkowski (1982) 30 SASR 212 at 212-213; R v Penno [2004] SASC 354; R v Carter (1997) 91 A Crim R 222; R v Clarke [1996] 2 VR 520 at 523; R v Lowery (1992) 14 Cr App R 485; R v Wall [2002] NSWCCA 42; R v Briese [1998] 1 Qd R 487; Newcombe v Police [2004] SASC 26, considered.

MORRISON v BEHROOZ
[2005] SASC 142

Magistrates Appeal

GRAY J:

Introduction

1. This is a Crown appeal against sentence.

2. A primary issue raised by the appeal is the importance of general deterrence in the sentencing process, having regard to the provisions of the Migration Act1958 (Cth). Other questions arise concerning the sentencing powers of a magistrate pursuant to the provisions of the Crimes Act 1914 (Cth).

3. On 20 October 2004, the respondent, Mehran Behrooz, pleaded guilty to a charge of escaping immigration detention contrary to section 197A of the Migration Act 1958 (Cth). The offending occurred on 18 November 2001 at Woomera Immigration Reception and Processing Centre, South Australia.[1]

   [1] Earlier appeal proceedings concerning this matter are reported.  See Behrooz v Secretary of Department of Immigration, Migration and Indigenous Affairs (2004) 208 ALR 271; Behrooz v Secretary of Department of Immigration, Migration and Indigenous Affairs (2003) 84 SASR 479 and Secretary of Department of Immigration, Migration and Indigenous Affairs v Behrooz (2002) 84 SASR 453.

   Circumstances of the Offending

4. An agreed summary of facts recounted the circumstances of Mr Behrooz’ offending:

   On 18 November 2001 6 detainees escaped from the Woomera Immigration Reception and Processing Centre (WIRPC).  The six persons escaped during the early hours of the morning 18 November 2001.

   At about 4 am, while conducting a random check of the western internal palisade fence Detention Officers noticed an irregularity in the fence.  About 28 metres from south-western corner it was observed that one of the palings appeared to be off centre and had been cut into two sections, approximately one metre apart.  The two sections appeared to be held together with a putty like substance.

   As a result of the damage found in the palisade fencing, a head count was conducted of the residents of Oscar Compound.  It was established that residents were missing from the Oscar Compound.

   A search was conducted of the WIRPC environs, the Woomera Township and Pimba.  Pimba is approximately 9 km south of the WIRPC.

   At approximately 5.00am, [two] detainees [other than Mr Behrooz] were located at the Pimba Railway Siding.  The two detainees were then escorted to the South Australian Police at Woomera.

   At approximately 8.00am, three detainees [other than Mr Behrooz] were located in the Pimba area in a storm water drain that ran under the train track.  They were then escorted to the South Australian Police at Woomera.

   At approximately 9.00am, the defendant Mehran Behrooz … was discovered in an unoccupied shed situated adjacent to the railway line at the Pimba Railway Siding.  He was then driven to the South Australian Police cells at Woomera.

   …

   Personal Antecedents

5. Mr Behrooz arrived in Australia by boat from Indonesia in January 2001. Upon arrival, he was detained at the Woomera Immigration Reception and Processing Centre.  His application for a visa was refused by the Minister of Immigration, Multicultural and Indigenous Affairs.

6. Mr Behrooz is Iranian.  His family is Muslim.  His father worked for the Iranian government and army.  While still in Iran, he converted to Christianity.  He had a Christian partner.  As a result of his conversion, Mr Behrooz was estranged from his family.  His father reported to him to government authorities.  He then fled Iran.

7. Since arriving in Australia, Mr Behrooz has experienced mental health problems.  His mental condition deteriorated significantly following the initial refusal of his visa application and again after his recapture in November 2001 following the offending the subject of this appeal. 

8. On 25 October 2003, Mr Behrooz was admitted to the Royal Adelaide Hospital Glenside Campus Mental Health Service.  This followed several suicide attempts and what were described as  “serious suicidal intent and behaviours and symptoms suggestive of major depression”.  Mr Behrooz’ initial clinical presentation was described by Glenside Health Service as follows:

   Upon admission, [Mr Behrooz] was clearly found to be experiencing features of melancholic depression with significant neurovegetative change including very poor dietary intake and anhedonia.  He remained suicidal and required individual one-to-one nursing care for several weeks until his mood began to improve and he could be managed under conditions of close observation.  He described a number of features of post-traumatic stress disorder, particularly persistent nightmares that have remained a problem up to the time of discharge.

9. A psychiatrist reported:

   On admission Mr Behrooz described a gradually worsening mood and a deep sense of hopelessness, despondency and despair over the preceding four months.  He described disinterest in all activities, reduced food intake (with associated weight loss), poor sleep, concentration and poor energy levels.  At the time of presentation he was extremely hopeless and was preoccupied with thoughts of death and an increasing determination to kill himself.  He believed there was no other solution to his situation apart from death.  … In addition to displaying all the neuro-vegetative symptoms of depression Mr Behrooz displayed some symptoms of post traumatic stress disorder and nihilistic ruminations about suicide and death.

   On admission he was treated with a combination of the antipsychotic Olanzapine 10mg at night and the antidepressant Mirtazapine 60mg at night.  Following admission, there was such concern about the level of the depression and the seriousness of this suicide intent, that Electro Convulsive Therapy was seriously considered.  … The antipsychotic was ceased, the antidepressant was changed to Reboxetine, additional night time sedation was given to assist with ongoing disturbed sleep and eventually the antipsychotic Risperidone was added.

   With the high and ongoing risk of suicide, Mr Behrooz has required one to one constant supervision with a nurse special from the day of his admission until the 16^th of December 2003. …

10. From 7 November 2003, Mr Behrooz came under the guardianship of the public advocate, Mr Harley.

11. In July 2004, Mr Behrooz was discharged from Glenside hospital.  At that time he was diagnosed as still suffering from a major depressive disorder.  It was recommended that he be released into a community detention arrangement to minimise the risk of suicide that would arise if he returned to a detention centre.  Since his discharge, Mr Behrooz has lived in the community with support from Youth with Mission, a mental health and disability service provider. 

    Proceedings before the Magistrate

12. On 1 December 2004, the learned Chief Magistrate sentenced Mr Behrooz.  Without proceeding to a conviction, Mr Behrooz was discharged on a good behaviour bond.  The Chief Magistrate delivered short remarks on penalty:

    Mr Behrooz, you entered a plea of guilty to the charge and after hearing some submissions from Mr Manetta and Mr Fisher I also took some evidence in the matter from Mr Harley.  Mr Harley has a particular statutory responsibility and has taken that responsibility following an order that relates to you that as made by the Guardianship Board. The law recognises the particular health issues that you suffer from, and the extent of that in your case is quite unusual.  The position is that your oversight is by a responsible person who has a statutory responsibility for you.  All of the material that was before me indicates the appropriateness of that order and I should in sentencing you for this matter particularly bear that in mind.  I also received a considerable amount of material from [counsel for Mr Behrooz] that was before the members of the High Court when your matter was argued before that court.  I read that material and am quite familiar with it.

    I commented on the last occasion [when sentencing other detainees for escaping immigration detention] about the remarks of Justice Kirby when the case was before him. In dealing with you, I have had regard to all of that material and the submissions that have been made. In my view the appropriate mode of dealing with you, is contained in Section 19B of the Crimes Act. The charge here had indeed been found proved by your plea of guilty but the ameliorative effect of Section 19B of the Crimes Act is attracted and properly attracted by the material that relates particularly to your mental condition.  The causative factors of it or the exacerbating aspects of it, whilst they are of themselves of importance, simply provide the background and the understanding to your current condition.

    In the circumstances here, pursuant [sic] Section 19B of the Crimes Act without proceeding to a conviction I direct that you be discharged on entering into a bond in the sum of $100 to be of good behaviour.  The bond in your case should in my view given your current health issues be for a period of two years.  I do not intend to impose other conditions unless any are suggested given the statutory regime that Mr Harley supervises.

    Mr Behrooz before I adjourn let express my thanks to your counsel and to those who have instructed him, I am aware of the history of the matter and I am very grateful to your counsel for taking the responsibility in this case.

13. The magistrate was of the view that the guardianship order was appropriate having regard to Mr Behrooz’ personal circumstances.  The magistrate referred generally to Mr Behrooz’ health issues, but did not identify the particular health problems suffered by Mr Behrooz.

14. The magistrate’s remarks suggest that he took into account material tendered by counsel for Mr Behrooz, relating to general conditions of detention within Australia.  However, the magistrate made no further reference regarding the content of the material he had received or its relevance to determining an appropriate sentence. 

15. The magistrate heard submissions in the present case at the same time as he heard a number of other cases of escaping from immigration detention. No where in any of the sentencing remarks is there any discussion of the seriousness of the offence, the policy behind the legislation or the importance of general deterrence. The magistrate, when addressing section 19B of the Crimes Act, which empowered the court to proceed without recording a conviction, did not identify or apparently embark upon the required two-stage process (outlined in detail further below). 

16. The magistrate discharged Mr Behrooz without conviction upon his entry into a recognizance in the sum of $100 to be of good behaviour for two years. Both parties had consented to proceedings to be dealt with summarily pursuant to section 4J of the Crimes Act.[2]  As a result, Mr Behrooz  could expect a maximum sentence of twelve months’ imprisonment.

    [2] Section 4J of the Crimes Act 1914 (Cth) which relevantly provides

    Legislative Scheme

17. Before considering whether the sentence imposed by the magistrate was manifestly inadequate and in order to assess whether correct sentencing principles were followed, we should first consider the legislative scheme creating the offence of escaping from immigration detention. 

18. Section 4 of the Migration Act provides:

    (1)The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

    (2)To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.

    (3)To advance its object, this Act requires persons, whether citizens or non-citizens, entering Australia to identify themselves so that the Commonwealth government can know who are the non-citizens so entering.

    (4)To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act.

19. The Migration Act provides for the immigration detention of non-citizens. Section 189 addresses the detention of unlawful non-citizens and sets out the means by which immigration detention is authorised and to be effected.

20. The constitutionality of the power to detain unlawful non-citizens was upheld by the High Court in Chu Kheng Lim v Minister of Immigration[3] and confirmed in Minister for Immigration and Multicultural Affairs v Al Kafaji,[4] Al Kateb v Goodwin[5] and  Behrooz v Secretary of Department of Immigration, Migration and Indigenous Affairs[6]. It is not in dispute in this appeal that DIMIA had authority to detain Mr Behrooz in immigration detention. At issue is whether the magistrate, when sentencing, failed to take into account the policy and purpose of section 197A of the Migration Act. Section 197A provides:

    A detainee must not escape from immigration detention. Penalty: Imprisonment for 5 years.

    [3] (1992-1993) 176 CLR 1.

    [4] (2004) 208 ALR 201.

    [5] (2004) 208 ALR 124.

    [6] (2004) 208 ALR 271.

21. The policy of the Migration Act was discussed by the High Court in Minister for Immigration and Multicultural Affairs v Al Khafaji.[7]  In that case, the High Court considered the legality of mandatory detention of unlawful non-citizens and whether indefinite detention without judicial order infringed Chapter III of the Constitution.  Al Khafaji was heard together with Al-Kateb v Goodwin.  In Al-Kateb, the members of the High Court commented on the policy behind the Migration Act.  Gleeson CJ observed:[8]

    The Migration Act 1958 (Cth) (the Act) provides for administrative detention of unlawful non-citizens. For present purposes, unlawful non-citizens are aliens who have entered Australia without permission, or whose permission to remain in Australia has come to an end. In this context, alien includes a stateless person, such as the appellant. Detention is mandatory, not discretionary. It is not a form of extra-judicial punishment. It exists "in the context ... of executive powers to receive, investigate and determine an application by [the] alien for an entry permit and (after determination) to admit or deport". It is an incident of the exercise of those powers. The Act envisages that the detention will come to an end, by the grant of a visa which entitles the alien to enter the Australian community, or by removal of the alien from Australia, either at the request of the alien, or following the conclusion of an unsuccessful attempt to obtain a visa. …

    …

    One of the features of a system of mandatory, as distinct from discretionary, detention is that circumstances personal to a detainee may be irrelevant to the operation of the system. A person in the position of the appellant might be young or old, dangerous or harmless, likely or unlikely to abscond, recently in detention or someone who has been there for years, healthy or unhealthy, badly affected by incarceration or relatively unaffected. The considerations that might bear upon the reasonableness of a discretionary decision to detain such a person do not operate. ...

    …

    The legislation operates, with reference to the appellant, upon the combined effect of two imperatives. He must be removed from Australia as soon as reasonably practicable. And he must be detained until he is so removed. … This is supported by the purposive nature of the power (and duty) of administrative detention. The primary purpose of the appellant's detention, after the completion of the process of examining his application for a visa and after his request that he be removed, was to facilitate his removal. A secondary purpose may well have been to prevent his entry into the Australian community in the meantime. The primary purpose, however, is plain. The purpose is objective. What is in question is the purpose of the detention, not the motives or intention of the Minister, or the officers referred to in s 198. (footnotes removed)

    [7] (2004) 208 ALR 201.

    [8] (2004) 208 ALR 124 at [1], [12] and [17].

1. In Behrooz[9] Gleeson CJ observed:[10]

   The detention which [the Migration Act] contemplates, authorises, and requires is detention of unlawful non-citizens (aliens) pending processing of their visa applications or deportation. Section 189 provides that, if an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person. (Reference has already been made to s 273, which empowers the establishment of detention centres.) Section 196 provides that an unlawful non-citizen detained under s 189 must be kept in immigration detention until he or she is removed or deported (under ss 198, 199 or 200) or granted a visa. Applications for a visa are commonly made on the basis that the applicant is a person to whom Australia owes protection obligations under the Refugees Convention. Section 198 provides, in sub-s (6), that an officer must remove as soon as reasonably practicable an unlawful non-citizen who is a detainee if the non-citizen has made a visa application and the application has been finally determined in a manner adverse to the applicant. Visa applications are dealt with administratively in the first instance, but are subject to a potentially lengthy process of administrative and judicial review. Cases regularly come before this Court in circumstances where this Court is invited to undertake a fifth level of decision-making in respect of a visa application. Some visa applicants hold temporary visas, and are not in immigration detention, but those who do not have visas may be detained for a substantial period while their litigation proceeds.

   [9] (2004) 208 ALR 271.

   [10] (2004) 208 ALR 271 at [18].

2. By enacting the Migration Act and its subsequent amending Acts, the legislature, inter alia, intended to put in place a particularised policy of immigration detention. The offence provisions, such as section 197A, form part of this policy. Such provisions were intended to facilitate the more effective management of inappropriate behaviour at detention centres, to discourage incidents of violent protests, assaults on officers and mass escapes occurring at detention centres. This is the policy behind the enactment of the offence contained in section 197A of the Migration Act. This policy is a material consideration when sentencing an offender under this section.

   The Appeal

3. As earlier observed, this is a Crown appeal against sentence.  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.

   Preliminary Matters

   Crown Appeal

4. It is an established principle that, in a case relating to a custodial sentence, a prosecution appeal against sentence may only be justified in the rare and exceptional case.  This is because it puts in jeopardy the liberty of an offender for a second time.  In accordance with the authority laid down in Everett v The Queen[11] and as applied by court in Police v Cadd,[12] an appellate court should only intervene in circumstances described in the following terms:[13]

   The function of the Court of Criminal Appeal of a State is to supervise the exercise of sentencing powers by magistrates, by the District Court or its equivalent and by judges of the Supreme Court. A Court of Criminal Appeal of a State is not concerned only with errors of principle, but also with maintaining an appropriate degree of uniformity of sentencing and maintaining adequate sentences.

   Although an appeal lies as of right pursuant to section 42 Magistrates Court Act 1991 (SA), the above-mentioned principles operate to restrict the circumstances in which such an appeal is justifiable.

   [11] (1994) 181 CLR 295.

   [12] (1997) 69 SASR 150.

   [13] (1997) 69 SASR 150 at 159.

5. When considering a Crown appeal against sentence it is necessary for the Crown to establish an identifiable error in the sentencing process.  Where error is identified it may be necessary for the appellate court to re-sentence the defendant.  Circumstances may arise in which an error in the sentencing process is established, however the final sentence imposed remains appropriate.  Such circumstances may arise, for example, where further material is provided to the appellate court during re-sentencing.  In such a case, error of sentencing principle will be established, however the appeal against sentence will necessarily be dismissed. 

   Section 16A

6. The Crimes Act outlines the factors to which a sentencing authority ought to have regard when sentencing with respect to a Commonwealth offence. Section 16A provides:

   In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

   (2)     In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

   (a)     the nature and circumstances of the offence;

   (b)     other offences (if any) that are required or permitted to be taken into account;

   (c)     if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—that course of conduct;

   (d)     the personal circumstances of any victim of the offence;

   (e)     any injury, loss or damage resulting from the offence;

   (f)     the degree to which the person has shown contrition for the offence:

   (i)by taking action to make reparation for any injury, loss or damage resulting from the offence; or

   (ii) in any other manner;

   (g)     if the person has pleaded guilty to the charge in respect of the offence—that fact;

   (h)     the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences;

   (j)    the deterrent effect that any sentence or order under consideration may have on the person;

   (k)     the need to ensure that the person is adequately punished for the offence;

   (m)    the character, antecedents, cultural background, age, means and physical or mental condition of the person;

   (n)     the prospect of rehabilitation of the person;

   (p)     the probable effect that any sentence or order under consideration would have on any of the person's family or dependants.

   (3)     Without limiting the generality of subsections (1) and (2), in determining whether a sentence or order under subsection 19B(1), 20(1) or 20AB(1) is the appropriate sentence or order to be passed or made in respect of a federal offence, the court must have regard to the nature and severity of the conditions that may be imposed on, or may apply to, the offender, under that sentence or order.

7. Section 16A(2) identifies particular matters to which the sentencing court must have regard. It is accepted that although not mentioned specifically, general deterrence remains an important and relevant matter for consideration.[14]

   [14] See R v Selleck (2000) 78 SASR 194; Burman v Commonwealth Services Delivery Agency [2004] SASC 224.

8. Counsel for the Crown submitted that proper sentencing standards were not followed and that the sentence imposed was manifestly inadequate and was not appropriate in all the circumstances of the offence.  Counsel for the Crown submitted that a conviction should have been recorded, a term of imprisonment imposed but an order made for immediate release.  These submissions will be addressed later in these reasons.

   Escape from Migration Detention  - Seriousness of the Offence

9. As earlier observed, the legislative scheme surrounding the offence of escaping immigration detention pursuant to section 197A of the Migration Act suggests: (1) that the offence was intended to be regarded as serious; and (2) that sentences imposed in relation to this offending ought to deter others from engaging in such conduct.

10. Escaping from immigration detention threatens and undermines the operation of the laws with respect to migration in Australia.  Such offending has a tendency to disrupt the orderly administration and management of detention centres; threatens the security and safety of officers employed in the operation of such centres; and incurs considerable expense to the community.

11. Counsel referred to the Explanatory Memorandum to the Migration Legislation Amendment (Immigration Detainees) Bill 2001, where it was observed:

    15.The maximum penalty for this offence is increased from 2 years imprisonment to 5 years imprisonment. The increase in the maximum penalty increases its deterrent effect and brings it into line with the penalty for the offence of escape from lawful custody in section 47 of the Crimes Act 1914 (“the Crimes Act”) (which is inapplicable to detainees).

12. The equating of an offence of escaping from migration detention with escaping from lawful custody is an indication of the seriousness with which the legislature viewed the offence.  The explanatory memorandum suggests that the increased penalty was designed to increase the deterrent effect of the sentence to be imposed. 

13. Cases dealing with escape custody repeatedly emphasise the seriousness of the offence, the need for serious punishment and deterrence being a paramount consideration.  As King CJ observed in Knight:[15]

    Escaping from prison is a serious crime.  The maximum sentence prescribed by law for the crime is five years’ imprisonment.  I am bound to say that, in my opinion, the sentences which have been imposed for this crime over recent years are far too low.  The crime is serous for a number of reasons.  It involves a deliberate defiance of the legal system.  It threatens the control by the authorities of prisons and prisoners.  It puts the community to the expense, often the great expense, of a search for the escapee.  It unsettles the community and undermines its sense of security.  To my mind the deterrent purpose of punishment for this type of crime is paramount.  I believe that the courts should make clear to prisoners that an escape from prison will result in severe punishment.

    [15] (1986) 40 SASR 479 at 479; see also, R v Forrest (1987) 46 SASR 75 at 76-77 and R v Cox (196) 66 SASR 152 at 156.

14. These remarks were referred to by the Court of Criminal Appeal more recently in R v Shepperbottom,[16] where Doyle CJ observed:[17]

    The offence of escaping from custody is a serious offence. It will always call for a deterrent penalty. The fact that Cadell is a low security prison does not diminish the seriousness of the offence. … Accordingly, this is an offence which calls for a deterrent punishment.

    This Court has held in a number of decisions that the offence of escaping from lawful custody will usually attract severe punishment: see R v Cox (1996) 66 SASR 152 at 156, and the cases there referred to, and see also R v Forrest (1986) 46 SASR 75 and R v Heaton (1994) 177 LSJS 342. Sentences of about two years imprisonment are quite common, when there are no particular aggravating circumstances. There have been higher and lower sentences, of course: see, for example, Marshall v R (Unreported, Court of Criminal Appeal, 22 September 1995, Judgment No S5282).

    Although these authorities address a different offence - an escape from prison - they do have relevance.  This is demonstrated by the comparability of the penalty for the offence of escape from custody and the offence of escape from immigration detention.

    [16] (2001) 212 LSJS 486

    [17] (2001) 212 LSJS 486 at [14].

15. The seriousness of an escape depends upon the circumstances as well as the type of custody or detention from which the offender escapes.  The degree of planning involved in the escape is also a relevant factor, as is the period the escapee spent at large.  However, it is a paramount consideration when sentencing offending of this nature to demonstrate to all those in custody or detention that if they escape, imprisonment of sufficient length to act as a deterrent to others may result. [18]

    [18]  See for example R v Stokes [2001] NSWCCA 82; Bailey v Kupsch  [1966] Tas R (NC 20).

16. It was submitted by the Crown that the magistrate erred in his application of the provisions of the Crimes Act 1914 (Cth) and that a manifestly inadequate sentence resulted. Counsel for the Crown said that the offending in this case was serious. Offending of this kind attracts a statutory maximum penalty of five years’ imprisonment. However, as earlier observed, as the matter proceeded in the Magistrate’s Court the maximum penalty to which Mr Behrooz was exposed was twelve months.

    Section 19B

17. As earlier observed, the magistrate proceeded to sentence Mr Behrooz pursuant to section 19B of the Crimes Act.  Section 19B(1) relevantly provides:

    Where:

    (a)     a person is charged before a court with a federal offence or federal offences; and

    (b)the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:

    (i)    the character, antecedents, cultural background, age, health or mental condition of the person;

    (ii)     the extent (if any) to which the offence is of a trivial nature; or

    (iii)    the extent (if any) to which the offence was committed under extenuating circumstances;

    that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;

    the court may, by order:

    (c)     dismiss the charge or charges in respect of which the court is so satisfied; or

    (d)discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph (c), upon his giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he will comply with the following conditions:

    (i)    that he will be of good behaviour for such period, not exceeding 3 years, as the court specifies in the order;

    (ii)     that he will make such reparation or restitution, or pay such compensation, in respect of the offence or offences concerned (if any), or pay such costs in respect of his prosecution for the offence or offences concerned (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay):

    (A)     on or before a date specified in the order; or

    (B)in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs—by specified instalments as provided in the order; and

    (iii)    that he will, during a period, not exceeding 2 years, that is specified in the order in accordance with subparagraph (i), comply with such other conditions (if any) as the court thinks fit to specify in the order, which conditions may include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed.

    …

18. The operation of section 19B involves a two-stage process.[19] The first is the identification of one or more of the factors identified in section 19B(1)(b) (see above). The second stage is the determination, if appropriate, that having regard to the factor or factors so identified, it is inexpedient to inflict any punishment or to reach the other conclusions for which section 19B provides. Section 16A(2) of the Crimes Act identifies the matters that must be taken into account in exercising the second stage of the discretion in section19B. Counsel for the Crown contended that the magistrate had not followed through the two-stage process.

    Section 20BQ

    [19] Commission of Taxation v Baffsky (2001) 192 ALR 92; See also Cobiac v Liddy (1969) 119 CLR 257 discussed; Jones v Morley (1981) 29 SASR 57, Holmes v Lewinski [2005] SASC 96.

19. Mr Behrooz filed a notice of contention advancing the following complaint:

    -that the magistrate erred in law in holding that section 20BQ of the Crimes Act 1914(Cth) did not apply to cases in which a plea of guilty had been taken; and

    -that it was open to the Court to discharge the respondent without conviction pursuant to that section.

20. The magistrate was of the opinion that section 20BQ was not open where a defendant had pleaded guilty to the charge. Although it is strictly unnecessary to deal with this issue in light of my conclusions outlined below, it is appropriate to make a number of brief observations.

21. Counsel for Mr Behrooz submitted that the magistrate ought to have proceeded pursuant to section 20BQ of the Crimes Act.  That section relevantly provides:

    (1)Where, in proceedings in a State or Territory before a court of summary jurisdiction in respect of a federal offence, it appears to the court:

    (a)     that the person charged is suffering from a mental illness within the meaning of the civil law of the State or Territory or is suffering from an intellectual disability; and

    (b)     that, on an outline of the facts alleged in the proceedings, or such other evidence as the court considers relevant, it would be more appropriate to deal with the person under this Division than otherwise in accordance with law;

    the court may, by order:

    (c)     dismiss the charge and discharge the person:

    (i)into the care of a responsible person, unconditionally, or subject to conditions, for a specified period that does not exceed 3 years; or

    (ii)on condition that the person attend on another person, or at a place, specified by the court for an assessment of the first-mentioned person's mental condition, or for treatment, or both, but so that the total period for which the person is required to attend on that other person or at that place does not exceed 3 years; or

    (iii)unconditionally; or

    (d)     do one or more of the following:

    (i)    adjourn the proceedings;

    (ii) remand the person on bail;

    (iii) make any other order that the court considers appropriate.

    (2)Where a court makes an order under paragraph (1)(c) in respect of a person and a federal offence with which the person has been charged, the order acts as a stay against any proceedings, or any further proceedings, against the person in respect of the offence.

    (3)Where a court makes an order under subsection (1) in respect of a person and a federal offence with which the person has been charged, the court must not make an order under section 19B, 20, 20AB or 21B in respect of the person in respect of the offence.

    Counsel for Mr Behrooz further submitted that the magistrate erred in law in holding that the section did not apply where a plea of guilty had already been taken. 

22. Counsel for Mr Behrooz said that the parity of statutory language between sections 19B and 20BQ of the Crimes Act suggested parity in scope. As both sections refer to dismissing a “charge”, notwithstanding that section 19B refers to circumstances where the charge has been pleaded to and proved, counsel for Mr Behrooz said that section 20 BQ could be utilised in circumstances where a guilty plea had been made.

23. There appears to be little authority on the application of section 20BQ and its relationship with section 19B. However, the language of section 20BQ suggests that its scope is limited to circumstances where no plea has been entered. The section does not appear to contemplate a conviction being recorded. Section 20BQ appears to authorise a diversionary process in the case of mental illness. This analysis of the section would support the magistrate’s view that the section did not have application where a defendant is fit to plead.

24. When sentencing, the magistrate observed:

    In my view the appropriate mode of dealing with you, is contained in Section 19B of the Crimes Act. The charge here has indeed been found proved by your plea of guilty but the ameliorative effect of the Section 19B of the Crimes Act is attracted and properly attracted by the material that relates particularly to your mental condition.

    In light of Mr Behrooz’ plea of guilty, I incline to view that the magistrate correctly identified that section 20BQ had no application. It would be inappropriate for Mr Behrooz now to withdraw his plea of guilty in an attempt to invoke the discretion contained in section 20B. No adequate basis has been laid to support an application to withdraw a plea of guilty.

    Mercy

1. Outside of the principles of mitigation, sentencing authorities have an inherent discretion to grant leniency under the doctrine of mercy.  In Cobiac v Liddy[20] Windeyer J observed:[21]

   The whole history of criminal justice has shewn that severity of punishment begets the need for a capacity for mercy.  … This is not because mercy, in Portia’s sentence, should season justice.  It is that a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice.

   [20] (1969)119 CLR 257.

   [21] (1969) 119 CLR 257 at 269.

2. In R v Miceli[22], the Victorian Court of Appeal recognised the doctrine of mercy as relevant to the exercise of sentencing discretion and upheld the observations of King CJ in R v Osenkowski,[23] where it was observed:[24]

   … There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case.  There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experience judges, that leniency at that particular stage of the offender’s life might lead to reform.

   [22] [1998] 4 VR 588.

   [23] (1982) 30 SASR 212.

   [24] (1982) 30 SASR 212 at 212-213. See also R v Penno [2004] SASC 354.

3. This statement has been approved by Winneke P and Hayne JA in R vCarter[25] and R vClarke.[26]  Counsel for the Crown accepted that considerations of mercy have application when sentencing for Commonwealth offences.

   [25] (1997) 91 A Crim R 222.

   [26] [1996] 2 VR 520 at 523.

4. The discretion to adopt a merciful approach to sentencing should only be used in circumstances where weight should be given to factors which are ordinarily not regarded as relevant mitigating circumstances.[27]  For example, the principle of mercy is often sought to relieve or compensate for hardship which resulted either from the offence or from the sentence that would be imposed.  In order to demonstrate sufficient hardship in this context, there is a need to identify a significant burden to be borne in addition to punishment - for example, a substantial economic, social or other disability.  As will be discussed later in these reasons, the personal circumstances to Mr Behrooz give rise to a consideration of a merciful approach to sentencing.

   [27] R vLowery (1992) 14 Cr App R 485.

   Did the Magistrate Err?

5. When sentencing Mr Behrooz, the magistrate was obliged to consider the legislative scheme of the Migration Act, including the seriousness of the offence of escaping migration detention and the public interest in effective general deterrence. Having decided to consider section 19B, the magistrate was further obliged to undertake the two-stage process required by the section.

   Scheme of the Migration Act

6. Counsel for the Crown contended that general deterrence should be a prominent sentencing consideration with respect to offending of this type.  Counsel said that any sentence imposed ought to recognise deterrence as a key objective of the legislation under which Mr Behrooz was charged. 

7. It was submitted by counsel for Mr Behrooz that there was no discernible Commonwealth policy regarding the offence of escaping immigration detention that necessarily warranted a sentence of imprisonment.  Counsel for Mr Behrooz said that Parliament’s intention, as expressed by the policy of the Migration Act, must be measured against the existing sentencing options contained in the Crimes Act. It was further submitted by counsel for Mr Behrooz that the policy of section 197A is to exclude from the community those persons who are not entitled to be a part of that community. Counsel for Mr Behrooz said that, as Mr Behrooz has subsequently been granted refugee status, at the time of his detention and at all times he was entitled to be in the community and therefore his offending behaviour was not in breach of the policy of the Migration Act.  Counsel for Mr Behrooz contended that, as Mr Behrooz was not a person to whom the policy of indeterminate detention was properly directed, it was open to the magistrate to take less account of the issue of general deterrence when sentencing.

8. This submission is misconceived. Section 197A of the Migration Act concerns “detainees”.  It does not differentiate between those who are genuine refugees and those who are not.  A detainee’s status as a refugee is assessed in detention. Parliament’s intention is clear. While in immigration detention, a person does not have the right to leave that detention and enter the community.

9. In R v Wall,[28] the New South Wales Court of Criminal Appeal considered this issue in the context of false or misleading statements.  Wood J observed: [29]

   [T]he purpose of the section is to protect the public from the effects of false or misleading information being provided to the Commission. That objective will be seriously undermined unless there is a significant element of general deterrence reflected in the sentence imposed for a breach of the section such as that committed by the respondent, in particular because of the position he held in the company, and because of the need to ensure that information supplied to the Commission is available to creditors, investors and shareholders, and is accurate and reliable. There is no reference in his Honour’s reasons, either explicitly or implicitly, to general deterrence, and it can only be assumed that it was overlooked or considered to be of no relevance. That it is relevant for sentencing for a Commonwealth offence is well established: see Commissioner for Taxation v Baffsky at para93.

   [28] [2002] NSWCCA 42.

   [29] [2002] NSWCCA 42 at [87].

10. By failing to pay due regard to, or even to mention, the need to address the principle of deterrence, the sentencing process in the present case miscarried.

11. Counsel referred to further observations of Wood J in Wall:[30]

    In my view, it cannot be seriously maintained that a discharge without conviction can ever be regarded as “at least as serious a punishment as one of community service”, let alone as a more serious punishment, regardless of what conditions may be imposed on the accompanying recognisance.

    Nor do I understand how it could be said that the order made resulted in something more than nominal punishment. The fact that the offender has been required to enter into a recognizance with a condition to be of good behaviour may result in his being liable to punishment, but it does not of itself impose any form of punishment. A requirement that an offender undertake community work is a recognised form of punishment, which puts the offender to inconvenience, and reinforces both punitively and publicly the important element of deterrence. It is a non-custodial alternative to a sentence of full time imprisonment, see s8 of the Crimes (Sentencing Procedure) Act (NSW) which applies to federal offenders by reason of s20AB of the Crimes Act (Cth). As such it has considerable more force than a disposition which involves the imposition of a bond without the recording of a conviction.

    … His Honour stated that he agreed with the Crown Prosecutor’s submission that the primary purpose of the section is protective. His Honour went on to say:

    “..but I take the view as I have already indicated, that the public will best be protected by placing this man on a bond to be of good behaviour, the protection lying in the fact that if he is not, he will be brought back before me and can expect no mercy.”

    [30] [2002] NSWCCA 42 at [83]-[86].

12. As the magistrate failed to mention the seriousness of the offending or the need for deterrence anywhere in his remarks, it could be inferred that these matter were overlooked. 

13. Mr Behrooz’ escape was described by counsel for the Crown as premeditated.  He was in the company of six others.  The escape involved the cutting of a perimeter fence and the deliberate leaving of immigration detention without lawful authority.  Counsel for the Crown said that the sentencing magistrate failed to have adequate regard to the seriousness of the offending.

14. The magistrate’s approach led to a situation where he failed to have regard to the policy considerations underlying the legislation on the important question of general deterrence.  Even if Mr Behrooz’ state of health was a compelling enough reason to proceed without conviction, it was important for the magistrate to explain why this issue outweighed other important sentencing considerations.  He did not do so.

    Section 19B and the Two-Stage Process

15. As earlier observed, the magistrate proceeded to sentence Mr Behrooz pursuant to section 19B of the Crimes Act. Evidence before the magistrate indicated that Mr Behrooz suffered from a serious depressive illness which in part had been attributed to the his lengthy period in immigration detention following the rejection of his initial visa application. This circumstance was accepted by counsel for the Crown to enliven the magistrate’s discretion under section 19B of the Crimes Act. 

16. As discussed above, section 19B requires the sentencing authority to engage in a two-stage process, involving the identification of one or more of the factors identified in section 19B(1)(b) followed by a consideration of whether, having regard to the factor or factors so identified, it is inexpedient to inflict any punishment or to reach the other conclusions for which section 19B provides.

17. Counsel for the Crown submitted that the magistrate failed to undertake this two-stage process and that, as a result, the sentencing process miscarried. In particular, counsel for the Crown submitted that the magistrate failed to take into account the legislative regime underlying the offence with which Mr Behrooz was charged, the seriousness of the offence and the need for general deterrence when proceeding pursuant to section 19B.

18. Counsel for Mr Behrooz submitted that it was appropriate for the magistrate to have regard to his client’s personal circumstances including the conditions of his detention at Woomera Immigration Reception and Processing Centre, and in particular to have regard to his poor mental condition. Counsel for Mr Behrooz said that, given Mr Behrooz’ poor mental health, the need for a sentence to address concerns of general and personal deterrence was diluted. Counsel for Mr Behrooz contended that, in the circumstances, it was appropriate for the magistrate to have taken a merciful approach when sentencing Mr Behrooz. Counsel said that there was ample justification for the magistrate’s exercise of discretion under section 19B, and in particular:

    -that there was evidence that at the time of sentencing Mr Behrooz was suffering from a major depressive illness contributed to by his unnecessary, protracted detention; and

    -that the nature of the offending was trivial, involving no violence; no damage to property; no resistance; a short interval at large; repentance; and voluntary surrender.

19. Counsel for Mr Behrooz submitted that the magistrate did not err in exercising his discretion to proceed without recording a conviction.  Counsel further said that, at the time of sentencing, Mr Behrooz’ personal circumstances were such that proceeding without recording a conviction was appropriate.  Counsel for Mr Behrooz pointed out that there was evidence before the magistrate that the respondent’s application for a protection visa was under consideration by the Department of Immigration.  Counsel for Mr Behrooz claimed that the Department was awaiting Mr Behrooz’ sentence in relation to the present offending before it would issue a visa.  Counsel further suggested that the sentence imposed might affect the Department’s decision to grant a visa.  A conviction, counsel for Mr Behrooz claimed, could well jeopardise Mr Behrooz’ chance of obtaining a visa, which might result in his deportation to a country in which he was liable to be executed.  Counsel for Mr Behrooz said that this was a relevant matter when considering the appropriate sentence to impose.

20. The legislative regime of the Migration Act was a necessary consideration when determining whether to exercise the discretion conferred by section 19B of the Crimes Act.  As observed in Commissioner of Taxation v Baffsky, it is appropriate to have regard to the significance of the conduct regulated by the statute creating the offence when determining whether it is inexpedient to impose punishment:[31]

    [31] (2001) 192 ALR 92 at [94]-[96].

    The significance of the conduct regulated by the statute which creates an offence is a consideration to which a sentencing judge must have regard in deciding whether it is "inexpedient" to impose punishment in a particular case. Such matters fall within "the whole of the circumstances ... of the offence" to which Windeyer J referred in Cobiac v Liddy at 276 and within "whether it is expedient in all the circumstances", to which the joint judgment referred at 265. (See also the "whole of the circumstances of the offence" in Kowald v Hoile (No. 2) (1976) 14 SASR 314 at 321 per Zelling J; Aikman v Bourne (supra) at 470 per Cox J; McQuestin v Australian Securities Commission (supra) at 36.

    In Lanham v Brake (1983) 34 SASR 578 at 585, Cox J was concerned with the application of s19B(1) in the context of offences of bringing fruit into Australia contrary to the Quarantine Act 1908 (Cth) and the making of a false statement to a Customs Officer, in this respect. His Honour referred to the seriousness of the offence and said at 584:

    "This is an area, in my view in which considerations of deterrence must predominate".

    Cox J also said at 585:

    "In the case of these quarantine offences, the relevant considerations will include the seriousness of the offence, its prevalence, the obvious difficulty of detecting breaches under disembarking conditions in which its quite impracticable to examine the luggage of every passenger ... ."

    His Honour concluded at 586 that the magistrate "had insufficient regard to the intrinsic seriousness of this sort of offence."

21. In the present case, the sentencing magistrate failed to give any or adequate consideration to the significance of the proscribed conduct when he concluded that it was inexpedient to inflict punishment and when he exercised his discretion to proceed without imposing a conviction pursuant to section 19B of the Crimes Act.

22. The magistrate’s remarks disclosed no recognition of the two-stage process involved in the application of section 19B. It was important that this process be addressed. The magistrate noted that:

    ... the ameliorative effect of Section 19B of the Crimes Act is attracted and properly attracted by the material that relates to your mental condition.

23. However, the magistrate failed to recognise or proceed through the two-stage process.  He did not balance relevant considerations such as Mr Behrooz’ mental condition on the one hand with the other matters relevant to sentencing (such as general deterrence on the other hand). 

    Conclusion

24. The legislative scheme of the Migration Act makes it clear that unlawfully escaping from immigration detention is directly contrary to the policy and purpose of the Act.  It was the intention of Parliament to treat such offending as a serious matter and to impose a penalty regime that reflected the need for general deterrence. 

25. The magistrate’s approach led to a situation where he failed to have regard to the policy considerations underlying the legislation on the important question of general deterrence.  Even if Mr Behrooz’ state of health was a compelling enough reason to proceed without conviction, it was important for the magistrate to explain why this issue outweighed other important sentencing considerations.  He did not do so.

26. General deterrence was an important sentencing consideration.  Mr Behrooz committed an offence forming part of a legislative scheme aiming to regulate and control the entry and detention of illegal immigrant.  As earlier discussed, it is clear from the scheme of the Migration Act that the offence against section 197A must be regarded as serious. The magistrate failed to pay due regard to this material factor and the need for general deterrence.

27. Further, the magistrate elected to sentence Mr Behrooz pursuant to section 19B of the Crimes Act.  However, his sentence remarks fail to disclose the two-stage inquiry required.  The magistrate’s remarks do not identify the relevant factor or factors contained in section 19B(1) and also fail to demonstrate a determination of whether, having identified those factors, it was appropriate to proceed with one of the sentencing options available under that section. 

28. Where a court is minded to take what could be described as a “merciful” or “lenient” approach to sentencing, it is in the interests of the community that reasons be articulated outlining the basis for taking such an approach.

29. The sentencing magistrate erred in the process of sentencing Mr Behrooz.  As a result, it is necessary for this court to consider re-sentencing Mr Behrooz.

    Re-sentence

    Further Facts

30. Further material relevant to Mr Behrooz’ personal antecedents was placed before this Court during the hearing of this appeal.  No objection was taken to this evidence being received.  In the event that error occurred in the sentencing process, it was accepted that this court should re-sentence having regard to all relevant material available at the time of re-sentencing. 

31. As earlier observed, on 27 July 2004 Mr Behrooz was discharged from Glenside hospital and placed in community immigration detention.  In a further psychologist report of 11 October 2004, Mr Behrooz’ psychological state was described as follows:

    -Continual depressed mood, characterized by pervasive feelings of sadness, helplessness, powerlessness and hopelessness with regard to the future

    -Loss of pleasure or enjoyment in daily activities – anhedonia and passivity

    -Loss of appetite 

    -Extremely disturbed sleep pattern

    -Constant fatigue and lack of physical energy

    -Problems with concentration

    -Suicidal Ideation

    …

    [Mr Behrooz] also reports regular disturbing nightmares involving themes of accidents or assaults, being shot or hanged.  [Mr Behrooz] does not relate these nightmares to specific past experiences, but they evoke feelings of extreme fear and panic.  This is indicative of an Acute Stress disorder … or a Posttraumatic Stress Disorder …, but the clinical picture is obscured by the long-term and ongoing stressful situation in which [Mr Behrooz] is situated.

    …

    It is my clinical opinion that [Mr Behrooz] continues to suffer from a severe Depressive condition characterized by:

    -Melancholic depressive mood, flatness or affect

    -Intrusive ruminative thoughts

    -Feelings of helplessness and hopelessness

    -Extremely disturbed sleep pattern

    -Lack of concentration and diminished memory

    -Lack of physical energy

    -Anhedonia – lack of enjoyment of everyday activities

    -Suicidal ideation

    In my opinion, [Mr Behrooz] also suffers from symptoms of a co-morbid chronic stress syndrome, characterized by recurrent nightmares and intrusive thoughts of impending doom.

32. In July 2004, the Minister for Immigration, Multicultural and Indigenous Affairs, exercising her discretion, invited Mr Behrooz to re-apply for a temporary protection visa.  Subsequent to the magistrate’s decision in the present proceedings, Mr Behrooz has been granted a temporary protection visa.

33. By letter dated 18 February 2005 Mr Harley, at the request of this court, reported in writing on Mr Behrooz’ present personal circumstances.  Mr Behrooz is now residing with a friend at North Parramatta.  His friend is a fellow refugee whom he met in Woomera, and is also the holder of a temporary protection visa.  Mr Behrooz recently consulted a general medical practitioner, who has referred him to a specialist psychiatrist.

1. Mr Harley further reported that Mr Behrooz continues to follow a prescribed course of medical treatment.  He is in receipt of welfare benefits.  He pays rent and maintains himself.  Mr Behrooz has applied for two positions of employment, one with a security company and the other with a supermarket.  He is presently working voluntarily with a friend who is a house painter.  Mr Harley said that Mr Behrooz intends to enrol in English classes.  Mr Harley advised:

   As a personal observation I say that Mr Behrooz, whilst speaking to me, was positive, sounded much happier, initiated conversation and evidenced an enthusiasm for life which I heretofore had not seen in him.  Consistent with my previous dealings with him he was cooperative and of his own volition was taking steps to ensure his mental health and rehabilitation and recover [sic] and that he becomes a self-sufficient member of society.

   Section 19B Discretion

2. 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 Behrooz’ character, his antecedents, cultural background, age and mental health. These factors must then be considered along with all other relevant matters in deciding whether to exercise the enlivened discretion in favour of Mr Behrooz.

3. As earlier observed, when sentencing offenders for escaping immigration detention it is necessary to have regard to the strong public interest in the need to deter others from this type of offending.  The policy of the Migration Act makes it clear that the detention of unlawful immigration and orderly operation of immigration detention centres constitutes a material consideration when sentencing offending under section 197A of the Migration Act. However, in the present case, factors of character, antecedents, cultural background, age and mental health need to be taken into account.  The relevant facts pertaining to these matters have been canvassed earlier in these reasons.  There is also a public interest in deterrence which must be balanced with the competing public interest – the public interest in offenders, particular offenders of otherwise good character, being successfully rehabilitated.  When re-sentencing Mr Behrooz, it is appropriate to have regard to the effect the sentence may have on his future rehabilitation. 

4. Other than the offending the subject of the present appeal, Mr Behrooz is of good character.  He now appears to be responding positively to mental health treatment and is able to reside in the community with the assistance of support agencies.  As earlier observed, Mr Harley notes an improvement in Mr Behrooz’ mental condition and general mood.  He is currently seeking employment and undertaking steps to learn English.  These are material matters to consider when sentencing and they suggest that Mr Behrooz would be a good candidate for rehabilitation. 

5. As earlier observed in November 2001, Mr Behrooz escaped from  the Woomera Immigration Reception and Processing Centre.  The escape did not involve any personal violence and included minimal property damage.  Notwithstanding these factors, the offence cannot be described as trivial.  It was an intentional act that constituted an escape from immigration detention.  However, it should also be noted that, although an intentional act, the escape had the hallmarks of being relatively unplanned.  Mr Behrooz was located at 9 am on the morning after the escape by authorities in a vacant shed in Pimba, approximately nine kilometres from Woomera Immigration Reception and Processing Centre.  He had no apparent plan as to where he would go after escaping detention.

6. As earlier observed, the learned chief magistrate erred in his approach to sentencing Mr Behrooz.  However, it does not follow that the sentence imposed was inappropriate, particularly when regard is had to the further evidence.

7. When re-sentencing I have had regard to the seriousness of the offending and the need to recognise the importance of deterrence in sentencing offending of this kind.  However, Mr Behrooz’ personal circumstances give rise to the need to take a merciful approach to re-sentencing.

8. Counsel for Mr Behrooz submitted that the conditions of his detention were a relevant factor to consider when sentencing.  A contention that it had been established that the detention conditions were inhumane was abandoned.  However, Mr Behrooz’ perception of his plight raises different considerations.  Mr Behrooz described these conditions as being “very bad”, and his experience of indeterminate detention in such conditions has been referred to in the medical evidence as a source of his mental condition and suicidal tendencies.

9. Material describing Mr Behrooz’ perception of his conditions of detention is relevant to his mental health history.  From the affidavit evidence before the Court, it is clear that Mr Behrooz perceived his situation in detention to be intolerable.  While Mr Behrooz’ mental health history does not excuse his behaviour, it does provide an explanation for his conduct and suggests that his criminal culpability is materially diminished.

10. In addition to Mr Behrooz’ mental health problems, regard must be had to his prospects for future rehabilitation.  With the support of Mr Harley and other agencies, Mr Behrooz is currently attempting to learn English and gain employment and there is material before the court to suggest he is making some progress in these areas.  In R v Briese[32] the Queensland Court of Criminal Appeal observed:[33]

    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 have significant detriment effects on Mr Behrooz’ opportunities to participate meaningfully in the Australian community. 

    [32] [1998] 1 Qd R 487; see also Newcombe v Police [2004] SASC 26 at [24]-[26].

    [33] [1998] 1 Qd R 487 at 491

11. Notwithstanding the public interest in the need for general deterrence for offending of this nature, the evidence of Mr Behrooz’ past and present mental condition, his lengthy period in a mental institution, his personal circumstances and his good prospects for rehabilitation indicate that it would be inexpedient to proceed to record a conviction or to impose an immediate custodial sentence.  I am satisfied having regard to all of the above factors that to proceed without recording a conviction was the appropriate course.  In reaching this conclusion I consider that Mr Behrooz’ personal circumstances allow a merciful approach to be taken.

12. During the course of the hearing, I discussed with the counsel the possible advantage of the bond being a supervised bond.  Supervision would offer Mr Behrooz support, guidance and advice.  He could be directed to undertake courses that may assist with education and employment as well as other matters.  Mr Behrooz’ counsel strenuously resisted these suggestions.  Counsel said that Mr Harley as guardian filled this role.  In the circumstances, it is not appropriate to vary the terms of the bond.

    Conclusion

13. The appeal against sentence is dismissed.

    
    

(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.