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.
[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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AGLC
R v Osenkowski [2005] SASC 142
Case
[2005] SASC 142
Decision Date
CaseChat Overview and Summary
In the case of R v Osenkowski, the respondent pleaded guilty to an offence under section 197A of the Migration Act 1958 (Cth), which pertains to escaping from immigration detention. The magistrate, exercising their discretion under section 16A of the Crimes Act 1914 (Cth), discharged the respondent without a conviction, requiring the respondent to enter a recognizance of $100 to be of good behaviour for two years. The Crown appealed this decision, arguing that the magistrate failed to adequately consider the policy and purpose of section 197A of the Migration Act, did not sufficiently regard the seriousness of the offence, and did not adequately consider the need for deterrence. The Crown also contended that the sentence imposed was manifestly inadequate.
The court examined the legislative scheme of the Migration Act, the seriousness of the offence of escaping immigration detention, and the public interest in effective general deterrence. The court also considered the respondent's personal antecedents, including mental health issues. The court found that the magistrate erred in the sentencing process by not considering the legislative scheme of the Migration Act, the seriousness of the offence, and the need for general deterrence. The court also found that the magistrate did not undertake the two-stage process required by section 19B of the Crimes Act. However, the court concluded that, in light of the merciful approach warranted in the circumstances, it was appropriate to proceed without recording a conviction and imposing a good behaviour bond.
The court found that the sentence imposed by the magistrate was appropriate and dismissed the appeal against the sentence. The court also considered the possibility of a supervised bond for the respondent but decided against it due to the respondent's guardian already fulfilling that role. The appeal against the sentence was ultimately dismissed, and the original sentence stood.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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 The appeal against sentence is dismissed.