Semrad v Habiburahman - [2013] NTCA 6

Semrad v Habiburahman [2013] NTCA 06

PARTIES: SEMRAD, Monica

v
HABIBURAHMAN

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:AP 15 of 2012 (21203102)
DELIVERED:  7 June 2013
HEARING DATES:  30 May 2013
JUDGMENT OF:  RILEY CJ, BARR and HILEY JJ
APPEALED FROM:  SOUTHWOOD J (in proceeding
nos 41 and 43 of 2012)

CATCHWORDS:

CRIMINAL LAW — Sentencing — Federal offences — Discretion not to record conviction where it is ‘inexpedient to inflict any punishment’ — Offence committed under ‘extenuating circumstances’ — Crimes Act 1914 (Cth) s 19B(1)(b).
CRIMINAL LAW — Sentencing — Crown appeal — Manifest inadequacy — Conviction — Discharge without conviction — Discretion not to impose conviction will only be interfered with if error demonstrated — Crimes Act 1914 (Cth) s 19B(1)(b).

REPRESENTATION:
Counsel:
Appellant:G R Rice SC
Respondent:  S J Cox QC with K E Roussos
Solicitors:
Appellant:Commonwealth Director of Public Prosecutions
Respondent:  Northern Territory Legal Aid Commission
Judgment category classification:    B
Judgment ID Number:  Ril1305
Number of pages:  17

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Semrad v Habiburahman [2013] NTCA 06

No AP 15 of 2012 (21203102)
BETWEEN:

MONICA SEMRAD

Appellant

AND:

HABIBURAHMAN

Respondent

CORAM: Riley CJ, Barr and Hiley JJ
REASONS FOR JUDGMENT
(Delivered 7 June 2013)
The Court:
Introduction

This is a Crown appeal against sentence.
On 8 June 2012, following a trial in the Court of Summary Jurisdiction, the respondent was found guilty of engaging in conduct which caused harm to a Commonwealth public official. Further, on 15 June 2012, he pleaded guilty to having caused damage to property belonging to the Commonwealth. On 18 June 2012 he was convicted and sentenced to imprisonment for a period of three months in relation to the offence of causing harm. The sentence was suspended forthwith upon him giving security by recognisance in the sum of $1000 to be of good behaviour for 12 months. In relation to the crime of causing damage to property belonging to the Commonwealth, he was convicted and released on a $1000 bond to be of good behaviour for a period of 12 months.
The respondent appealed to the Supreme Court against the sentences on various grounds including that the sentences were manifestly excessive. The judge noted that:
The appellant's primary object is to try and correct what he says was a failure of the presiding magistrate to exercise his discretion under s 19B(1) of the Crimes Act 1914 (Cth) not to record a conviction against him because his convictions may result in the Minister for Immigration refusing to issue him a visa.[1]
The appeal in relation to the sentence imposed for causing damage to property belonging to the Commonwealth was dismissed. The conviction for that offence was not disturbed. The appeal in relation to the sentence imposed for the crime of causing harm to a Commonwealth public official was allowed and the conviction and the sentence of imprisonment for…

Grounds of appeal

[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.

Continue reading Semrad v Habiburahman

Details

AGLC: Semrad v Habiburahman [2013] NTCA 06
Case: [2013] NTCA 6
Decision Date: 7 June 2013

CaseChat Overview and Summary

The appellant, who was the complainant in the proceedings below, appeals against the decision of the sentencing judge, who had discharged the respondent without conviction. The appellant argues that the sentence was manifestly inadequate. The respondent, a Burmese refugee, was in detention since 2009, and despite being recognised as a refugee in 2010, he remained in detention pending a security check. During a welfare check, the respondent assaulted the complainant, who was a Commonwealth public official. The appellant suffered injuries consistent with being struck and bitten by the respondent. The appeal concerns the adequacy of the sentence imposed by the sentencing judge.

The legal issues before the court were whether the sentencing judge had erred in law in discharging the respondent without conviction and whether the sentence imposed was manifestly inadequate. Specifically, the court had to consider whether the sentencing judge had correctly applied the discretion not to record a conviction under section 19B(1)(b) of the Crimes Act 1914 (Cth) and whether there was evidence of extenuating circumstances that justified the discharge without conviction.

The court found that the sentencing judge had correctly exercised the discretion not to record a conviction, considering the extenuating circumstances of the respondent's case. The court acknowledged the respondent's traumatic history, including severe discrimination, persecution, and personal losses in Burma, as well as his experiences in detention, which contributed to his mental deterioration. The court held that the respondent's actions, although serious, were influenced by these circumstances and that discharging him without a conviction was appropriate. The court also noted that the appeal court would only interfere with the sentencing judge's discretion if an error was demonstrated.

The court dismissed the appeal, affirming the sentencing judge's decision to discharge the respondent without conviction. The court concluded that the sentence was not manifestly inadequate, as it took into account the respondent's extenuating circumstances and the nature of the offence.

Orders

Orders of the court

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Background

Background to the litigation

The appellant, who was the complainant in the proceedings below, appeals against this decision primarily on the basis that the sentence imposed by the learned judge was manifestly inadequate.The facts For the purposes of this appeal the parties agreed the following matters:(a)The respondent is a 33-year-old Burmese refugee who had been in immigration detention under the Migration Act 1958 (Cth) since his arrival at Christmas Island on 28 December 2009 until the time of the offending the subject of this appeal.(b)In May 2010, the Department of Immigration and Citizenship assessed the respondent and determined that he was a genuine refugee. However, he remained in detention while the Australian Security Intelligence Organisation completed a security check. The security check was completed in December 2011 when it was determined that the respondent was not a security risk.(c)While refugees are in detention they are subject to welfare checks. Welfare checks are undertaken three to four times a day to ensure that detainees remain in detention and are being cared for appropriately. They are also undertaken after there have been rooftop protests or demonstrations. A welfare check after a rooftop protest involves SERCO employees entering the rooms of detainees and speaking to them to ensure that they are off the roof, safe and unharmed. They also involve an assessment of a detainee’s mental state. The respondent was familiar with such checks.(d)On 12 August 2011 the respondent participated in a rooftop protest at the Northern Immigration Detention Centre in Darwin where he was detained. The protest was about the length of detention of refugees. During the course of the protest the respondent climbed up onto the roof of one of the buildings where he remained for about five hours. After he came off the roof he went to sleep in the room that he had been allocated.(e)After the respondent went to sleep, a welfare check was conducted by Mr Paul Green, a SERCO employee. Mr Green was a Commonwealth public official. He conducted the welfare check quietly and respectfully because it was night time and efforts were made not to disturb people if they were asleep. Mr Green walked into the appellant’s room which was dark. There appeared to be a person asleep with a cover over his head on a bottom bunk in the room and it looked like another person occupied the top bunk. A light was on in the bathroom so Mr Green walked to the bathroom to see if anybody was in the bathroom. He knocked quietly on the bathroom door before he checked the bathroom. There was nobody in the bathroom.(f)After he checked the bathroom, Mr Green turned and saw the respondent was out of his bunk and standing directly in front of him. He asked the respondent if he was Mr Habib and if he had come down off the roof. Mr Habib responded by screaming, ‘get out of my room!’ Mr Green again asked the respondent if he was Mr Habib and if he had come down from the roof. The respondent pointed at Mr Green’s face and again screamed, ‘get out of my room’. Mr Green put his hands up in a peaceful stance in response to the respondent pointing and shouting at him aggressively. The respondent then hit him, at least twice, in the face. There was then a scuffle in the room which involved another detainee and a number of SERCO employees who had come to Mr Green’s assistance. During the scuffle the other detainee hit Mr Green on the chest. Ultimately, both the respondent and the other detainee were restrained.(g)Mr Green was injured and he was taken to hospital. He sustained superficial lacerations to his left ear and bruising to his left face. That is, bruising to the posterior auricular region and some mandible tenderness but no mastoid tenderness. These injuries were consistent with Mr Green being hit or punched by the respondent. Mr Green also suffered a bite wound and bruising to his left upper chest. These injuries were caused by the other detainee biting Mr Green.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Once error on the part of the presiding magistrate had been established, the judge on appeal was entitled to consider the operation of s 19B(1)(b) of the Crimes Act 1914 (Cth) for himself and, if the provision had application, exercise the sentencing discretion under the relevant provisions of the Crimes Act 1914 (Cth).The decision The judge conducted a detailed review of the evidence and concluded that there was evidence of both extenuating circumstances and the requisite link between the extenuating circumstances and the offence committed by the appellant.[3] His Honour provided a history of the respondent. He is a member of the Rohingyan ethnic group from the State of Arkan in Burma. The group has been the subject of ‘severe discrimination and persecution’ and many of his people have fled from Burma. The respondent's family home was demolished twice by the Burmese authorities. His father and two of his siblings were detained by the authorities and his father died in detention in 2008. The family decided he should leave Burma and, in 2007, he travelled to Thailand and then to refugee camps in Malaysia. Whilst in detention in Malaysia he was sold by corrupt officials to the owner of a Thai fishing boat and forced to work there for eight months before he was able to escape. He then stayed in other refugee camps in Malaysia and eventually saved sufficient money to pay to travel to Indonesia and then on to Christmas Island. He applied for protection as a refugee and was found to be a refugee and not to be a security risk. He is seeking a visa to enable him to remain in Australia. The evidence before the sentencing magistrate was that the respondent had been in detention since December 2009. After he had been found to be a refugee he was kept in detention for a further 19 months whilst necessary security checks were undertaken. References provided to the court by people associated with the respondent during his period of detention reveal that he suffered traumatic experiences including physically saving a person from hanging himself and assisting others who were experiencing suicidal ideation. He was anxious about his family in Burma. He was experiencing escalating distress and anguish due to his experiences in detention. The witnesses expressed the view that the actions of the respondent were out of character and that he was a gentle man. His Honour noted that the respondent had suffered a significant deterioration in his mental function as a result of the length of his detention and his experiences in detention. Before the incident he had participated in a rooftop protest which had lasted five hours and then had his sleep interrupted by the intrusion of the Commonwealth official. He lost his temper and assaulted the victim. In support of these conclusions the judge referred to the following:(a)the respondent had been in detention since December 2009;(b)he had been found to be a refugee but was kept in detention for a further 19 months while necessary security checks were undertaken;(c)he witnessed an attempted suicide and he helped other people who were experiencing suicidal ideation;(d)he was anxious about the well-being of his family in Burma; and(e)the observations of a Red Cross observer were that the respondent was experiencing: escalating distress and anguish; a deterioration of judgment, reasoning and awareness; and that the length of his detention and his experiences in detention had caused significant deterioration in his function.

Ratio Decidendi

Legal Principle Established

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