SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SHILLABEER v HUSSAIN
Judgment of The Honourable Justice Gray
2 June 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
Respondent 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 principles discussed in Morrison v Behrooz [2005] SASC 142 - 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.
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 and s 19B, referred to.
Morrison v Behrooz [2005] SASC 142; Everett v The Queen (1994) 181 CLR 295; Police v Cadd (1997) 69 SASR 150; R v Knight (1986) 40 SASR 479; 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; R v Briese [1998] 1 Qd R 487; Newcombe v Police [2004] SASC 26, considered.
SHILLABEER v HUSSAIN
[2005] SASC 198Magistrates Appeal
GRAY J:
Introduction
This is a Crown appeal against sentence.
On 30 November 2004 the respondent, Sajid Hussain, pleaded guilty to escaping immigration detention contrary to section 197A of the Migration Act 1958 (Cth). The offending occurred on 27 June 2002 at the Woomera…
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- AGLC
- Shillabeer v Hussain [2005] SASC 198
- Case
- [2005] SASC 198
- Decision Date
CaseChat Overview and Summary
The central legal issues in this case involved whether the magistrate correctly applied the sentencing principles outlined in section 19B of the Crimes Act, particularly whether the magistrate properly considered the legislative scheme of the Migration Act, the seriousness of the offence, and the need for general deterrence. The Crown argued that the magistrate failed to undertake the required two-stage process under section 19B, thereby miscarrying in the sentencing process. Mr Hussain's counsel contended that the magistrate appropriately considered his personal circumstances, including his mental health, and that these factors justified a more lenient sentence.
The court found that the magistrate did not appropriately consider the legislative scheme of the Migration Act and the need for general deterrence, which are critical factors under section 19B of the Crimes Act. The court noted that the legislative scheme of the Migration Act emphasises the seriousness of unlawfully escaping from immigration detention and underscores the importance of deterrence. The court held that the magistrate's failure to consider these elements constituted a misapplication of the sentencing principles. Consequently, the court allowed the appeal against sentence and remitted the matter back to the Magistrates Court for resentencing.
The final orders of the court included allowing the appeal against sentence and remitting the matter to the Magistrates Court for resentencing. The court emphasised that the resentencing process must appropriately consider the legislative scheme of the Migration Act, the seriousness of the offence, and the need for general deterrence.
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
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Ratio Decidendi
Legal Principle Established
As noted in Behrooz,[8] even where an error in the sentencing process occurs, the sentence imposed may still be appropriate. In such a case, an appeal court may identify and correct the error of sentencing principle but dismiss the appeal against sentence. Legislative Scheme of the Migration Act [8] [2005] SASC 142. Counsel for the Crown submitted that general deterrence should be a prominent sentencing consideration in this case. As earlier observed, the legislature regarded the offence as serious. The legislative scheme of the Migration Act indicates that unlawfully escaping from immigration detention is contrary to the policy and purpose of the Act. The increase in penalty for escaping immigration detention demonstrates that the legislature intended that the sentence should deter future offenders. The magistrate’s approach failed to have regard to the policy of general deterrence underlying the Migration Act. Mr Hussain committed an offence that formed part of a legislative scheme aiming to control the detention of illegal immigrants. Even if there were compelling health reasons to proceed without conviction, it was important for the magistrate to explain why those issues outweighed other important sentencing considerations. He did not do so. Legislative Scheme of the Crimes Act, Section 19B In the present case, the magistrate proceeded to sentence Mr Hussain pursuant to section 19B of the Crimes Act. That section requires the sentencing authority to undertake a two-stage process: first, identify the existence of one or more of the factors identified in section 19B(1)(b); and then determine, if appropriate, whether having regard to the factor or factors identified, it is inexpedient to inflict any punishment or to reach one of the other conclusions that section 19B provides. These issues are discussed fully in Behrooz.[9] [9] [2005] SASC 142. Counsel for the Crown accepted the fact that Mr Hussain’s poor mental health enlivened the magistrate’s discretion to sentence pursuant to section 19B of the Crimes Act. However, it was submitted that the magistrate failed to undertake the two-stage process required by section 19B. In particular, the Crown submitted that the magistrate failed to take into account the legislative regime underlying the offence committed by given Mr Hussain, the seriousness of the offence and the need for general deterrence. The Crown submitted that the magistrate was required to consider the legislative scheme of the Migration Act when proceeding pursuant to section 19B.[10] It was contended that the legislative scheme emphasised the seriousness of the offending and the need for sentences imposed to provide general deterrence. On this basis, the Crown argued that the sentencing process miscarried.[10] Commissioner of Taxation v Baffsky (2001) 192 ALR 92. Counsel for Mr Hussain contended that it was appropriate for the magistrate to adopt a merciful approach when sentencing in the present case. Counsel argued that the magistrate took into account Mr Hussain’s personal circumstances, including the conditions of his detention and Mr Hussain’s mental illness. Counsel claimed that Mr Hussain’s mental health problems lessened the need for the sentence to address general and personal deterrence.