Shillabeer v Hussain - [2005] SASC 198

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 198
Magistrates 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 Immigration Reception and Processing Centre, South Australia.
An agreed summary of facts recounts the circumstances of Mr Hussain’s offending:
At about 10.13pm on Thursday 27 June 2002, five or six vehicles containing between 12-20 people arrived at the Woomera Immigration Reception and Processing Centre (WIRPC) parking their vehicles about 30 metres from corner of the south west fences. They were sounding their car horns and chanting.
At this time a group of detainees in one of the compounds breached their compound fence and entered sterile zone. About 60-80 detainees walked along the sterile zone to area where the people outside the WIRPC were standing. The people outside the fence passed items to the detainees who had climbed onto the palisade fencing and began cutting razor wire. Others outside the fence threw blankets and a large banner onto the razor wire on top of the palisade fence. They also passed star pickets through the palisade fence to the detainees. The detainees and the people outside the WIRPC then used the star pickets to prise open the palisade fence.
At about 10.30pm, the palisade fence was breached with one palisade fence strap being damaged and bent away from the palisade fence. At this point, and within four minutes, thirty five detainees escaped through the breach in the fence. They got into vehicles used by the people assisting with the escape and were driven toward the Woomera township.
None of the detainees had permission to leave the detention centre. 35 detainees escaped in total. It is alleged both Kakar and Hossain [sic] escaped.
About 5.30pm on Saturday 29 June 2002 police located Hossain [sic] with eleven other escapees at a campsite approximately 30 kilometres north of Port Augusta and approximately 700 metres west of the Port Augusta / Woomera road. He was taken to the Port Augusta Police Station where he was searched and lodged.
Mr Hussain is about 25 years of age. He was born and raised in a village in Afghanistan. Mr Hussain’s father employed him to cut wood. He had no opportunity for formal education and, as a result, has very limited literacy and numeracy skills. He does not speak conversational English.
Mr Hussain follows the Shiya Muslim faith. The Taliban persecuted and terrorised his family and other members of the village. During his childhood he witnessed violence, killing and conflict.
Mr Hussain came to Australia by boat in 2000. He was detained upon arrival and has been in immigration detention since. His mother is deceased and he fears that his father may have been killed. He has had no contact with his family since being held in detention.
Proceedings before the Magistrate
Counsel for Mr Hussain provided a psychological report dated 24 November 2004 to the sentencing magistrate. The psychologist concluded that Mr Hussain suffered from a post traumatic stress disorder, headaches and depression whilst in detention. However, the psychologist commented:
There was no clinical evidence to suggest that Mr Hussain suffers from any psychotic illness (break with reality), intellectual disability, drug or alcohol abuse problems or a serious personality disorder.
…
He was subjected to persecution in Afghanistan by the Taliban, the Suni Muslims, and Hezbi Islami which is both a political and religious party. He witnessed numerous atrocities such as the killing of others during his childhood due to the ongoing conflict in Afghanistan. He fled Afghanistan to avoid being forced by the Taliban to fight in their holy war and/or to be executed. He has a good work ethic and has worked in the kitchen in detention. He is chronically bored in detention. He has suffered from headaches since being in detention. He suffers from a PTSD [post traumatic stress disorder] and a depressive illness.
The psychologist explained that at the time of the offence, Mr Hussain was mentally and physically weak due to the effects of starvation and dehydration. He had been on a hunger strike and “exposed to the elements” for five days. The psychologist commented:
He felt confused and disorientated. Nevertheless, he was aware of the hole in the perimeter fence made by the protestors. He could see other detainees exiting through the hole. He decided to walk through the hole because he wanted to talk to the protestors, introduce himself, and obtain food to eat and water to drink. I believe that despite his weakened mental and physical state he did form the intent to exit through the hole in the fence. However, he may not have fully appreciated the illegality of his behaviour until he received legal advice in Adelaide.
When asked by the psychologist why he offended, Mr Hussain replied:
If you keep a bird in a cage and the bird finds a way out of the cage would it fly away or not? I’m really fed up and bored with my life in detention centre.
Mr Hussain continued:
I won’t escape again and I won’t break the law again.
The magistrate received a number of letters of support for Mr Hussain from members of the Australian community. These letters emphasised that Mr Hussain had survived horrific experiences in Afghanistan and described how unhappy he was in detention. The letters portray Mr Hussain as an honest and hardworking man who wishes to start a new life in Australia. The Department of Immigration and Multicultural and Indigenous Affairs approved Mr Hussain’s application for a temporary protection visa on 3 November 2004.
On 30 November 2004, the magistrate sentenced Mr Hussain.
Both parties consented to proceedings being dealt with summarily pursuant to section 4J of the Crimes Act 1914 (Cth).[1] Accordingly, Mr Hussain faced a maximum sentence of 12 months’ imprisonment.
[1] Section 4J of the Crimes Act 1914 (Cth) which relevantly provides:
(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.
Counsel for Mr Hussain tendered material related to the alleged conditions of detention within Australia. In his sentencing remarks, the magistrate states that he took this material into account. However, the magistrate did not refer to the content of that material or its relevance to sentence.
Further, in his sentencing comments, the magistrate did not discuss the seriousness of the offence, the policy behind the legislation or the importance of general deterrence.
The magistrate addressed section 19B of the Crimes Act. That section empowered the magistrate to proceed without recording a conviction. However, the magistrate did not identify or embark upon the required two-stage process in section 19B. This two-stage process is necessary to determine whether Mr Hussain’s circumstances meet the criteria in section 19B.
The magistrate delivered remarks on penalty. It is to be noted that two other detainees were sentenced at the same time. The magistrate’s remarks include the following:
You have each pleaded guilty to these various escapes. The facts are quite brief. In each instance you escaped from detention with the assistance of protestors. You were in the presence of those people for a period. In some instances you were then abandoned by those people, and your counsel is critical of your abandonment. Having been then detained you were in custody on these matters before being returned to immigration detention. It is really not possible in the scope of these reasons to canvas all of the material provided to me. I am very mindful of the material that is before me that relates to conditions at Woomera, I am particularly mindful of the very detailed and helpful reports by Mr Balfour.
The issue of the regime has been commented on particularly by Justice Kirby in the High Court in his remarks in the matter of Behrooz particularly at paragraph 97. Those remarks tend to echo the material that is present today from Justice Bhagwati and the other material provided to me by your counsel.
I had a brief discussion with your counsel as to whether the court is able to proceeded [sic] pursuant to Section 20BQ of the Crimes Act, this issue may become important but it is important to note that each of you have entered a plea of guilty to these charges. In my opinion section 19B of the Crimes Act is available where the charge has been proved. In my opinion the charge here has been proved on the plea of guilty. In my opinion Section 20BQ is not now available. There are many similarities between the three of you particularly as far as your health is concerned.
…
You Mr Hossain [sic] have been assisted by members of the Australian community, I mention Miss Longmore, Miss Kingston, Miss Grey and Mr Grey and I am grateful for the tender of those references. Mr Balfour says Mr Hossain [sic], that while you were in detention you felt very depressed that you contemplated suicide but did not make an attempt and that during a hunger strike you sewed your lips together for five or six days. You were not aware that it was a crime to leave the detention centre, you have very little reading skills and you are unable to write, you have almost no information about your family and you assume your father is deceased. You have been in detention for some three years and the absence of knowledge of family and friends for such a long period is something that most people in Australia would have no experience of. Mr Balfour describes this as an impoverished environment.
…
In connection with your Mr Aref, and you Mr Hossain [sic], similarly, on the single counts to which you have pleaded guilty you will each be discharged without conviction on entering into a bond in the sum of $100 to be of good behaviour for 12 months.
The magistrate discharged Mr Hussain without conviction upon his entry into a recognizance in the sum of $100 to be of good behaviour for 12 months.
Morrison v Behrooz
Recently, this court delivered its reasons in the matter of Morrison v Behrooz.[2] That case concerned a Crown appeal against a magistrate’s sentence for the offence of escaping immigration detention. Behrooz addressed similar legal issues to those arising in the present case.
[2] Morrison v Behrooz [2005] SASC 142.
In Behrooz, the Court considered the legislative scheme of the Migration Act. Relevant observations may be summarised as follows:[3]
- the legislature intended to put in place a particular policy concerning immigration detention by enacting the Migration Act .
- the offence provisions, such as section 197A, form part of this policy.
- the gravity of the offence in section 197A is evident from the legislative scheme and from the stipulated maximum penalty.
- the legislature intended the penalty in section 197A to discourage incidents of violent protests, assaults on officers and escapes.
- this policy is a material consideration when sentencing an offender for an offence against section 197A.
[3] [2005] SASC 142.
The legislature amended the Migration Act in 2001, increasing the maximum penalty for escaping immigration detention from two to five years’ imprisonment. The explanatory memorandum suggests that the legislature intended to increase the deterrent effect of the sentence by equating the offence with an offence of escaping from lawful custody.
In Behrooz, the court considered the common law dealing with escaping from other forms of lawful custody.[4] The Court concluded that the seriousness of an escape depends upon the circumstances and type of custody or detention. However, the sentence should, where possible, deter all people in custody or detention from escaping. [5]
[4] R v Shepperbottom (2001) 212 LSJS 486; R v Knight (1986) 40 SASR 479,
[5] See for example R v Stokes [2001] NSWCCA 82; Bailey v Kupsch [1966] Tas R (NC 20).
The Appeal
As earlier observed, this is a Crown appeal against sentence. The grounds of appeal advanced 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.
A court will only allow a prosecution appeal against sentence in a rare and exceptional case. A prosecution appeal puts the liberty of the offender in jeopardy for a second time. As observed in Everett v The Queen[6] and Police v Cadd,[7] an appellate court may intervene where there has been an error of sentencing principle, where it is necessary to maintain an appropriate degree of uniformity in sentencing or where it is necessary to maintain adequate sentences.
[6] (1994) 181 CLR 295.
[7] (1997) 69 SASR 150
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.

Counsel stressed that at the time of sentencing Mr Hussain was suffering from depression, caused by his experiences in Afghanistan and his unnecessary, protracted detention. Counsel pointed out that he suffered from a post traumatic stress disorder as a result of his experiences in Afghanistan. The disorder was exacerbated by the conditions of his detention and lack of contact with his family in Afghanistan.
Counsel submitted that it was appropriate for the magistrate to sentence under section 19B. She emphasised that the offence involved: no violence; no damage to property; no resistance; a short interval at large; repentance and voluntary surrender.
Counsel for Mr Hussain submitted that the magistrate did not err in proceeding without recording a conviction. It was said that Mr Hussain’s personal circumstances at the time of sentencing, proceeding without a conviction was appropriate.
Counsel for Mr Hussain informed this court that the Department of Immigration is awaiting the outcome of this appeal before considering the issue of a protection visa. Counsel submitted that a conviction may jeopardise Mr Hussain’s chance of obtaining a visa. This, it was said, may result in his deportation to a country in which he is liable to be executed. Counsel contended that this was a relevant matter when considering the appropriate sentence to impose.
Reconsideration of the Sentence
The magistrate sentenced Mr Hussain pursuant to section 19B of the Crimes Act. However, he did not undertake the two-stage inquiry.
The sentencing magistrate erred in the process of sentencing Mr Hussain. As a result, it is necessary for this court to consider the issue of sentence.
Counsel for Mr Hussain placed further evidence relating to Mr Hussain’s personal antecedents before the court during the hearing of this appeal. The Crown did not object to the receipt of this evidence. In the event that error occurred in the sentencing process, both counsel accepted that this court should re-sentence having regard to all relevant material available at the time of re-sentencing.
Counsel for Mr Hussain provided progress notes from Baxter Detention Centre. These notes document recent improvements in Mr Hussain’s mental health. Notwithstanding that Mr Hussain is frustrated that the Department has kept him in detention after approving his temporary protection visa application, Mr Hussain’s depression has lifted. The notes report that he is enjoying his employment duties at the Detention Centre.
Mr Hussain’s perceptions of the detention conditions are relevant. From the affidavit evidence before the Court, it is clear that Mr Hussain, at the time of offending, perceived his situation in detention to be intolerable. Medical evidence describes his experience of indeterminate detention as a cause of his mental health problems. Mr Hussain’s traumatic experiences in Afghanistan have also contributed to his mental health problems. While Mr Hussain’s suffering does not excuse his behaviour, it does provide an explanation for his conduct and suggests that his criminal culpability is materially diminished.
Mr Hussain is of good character. He has responded positively to medical treatment and has demonstrated a positive work ethic. These matters suggest that Mr Hussain is a good candidate for rehabilitation.
On the hearing of the appeal, counsel for the Crown accepted that the first stage of the section 19B process was satisfied. Mr Hussain’s character, his antecedents, cultural background, age and mental health enlivened the discretion to proceed pursuant to section 19B.
As observed in Behrooz,[11] in deciding whether to exercise the section 19B discretion, the court must consider the need to deter others. It is material to consider the orderly operation of immigration detention centres when sentencing for offending under section 197A of the Migration Act.
[11] [2005] SASC 142.
However, the public interest in deterrence is to be balanced with the competing public interest in offenders, particularly offenders of otherwise good character, being successfully rehabilitated. When re-sentencing Mr Hussain. Court must consider the effect of the sentence on his future rehabilitation.
Mr Hussain’s offence cannot be described as trivial. It was an intentional act that constituted an escape from immigration detention. However, the escape did not involve any personal violence and minimal property damage. It occurred amidst a large-scale demonstration where protestors facilitated and encouraged the escape. Mr Hussain was one of many detainees who escaped. He was located by authorities three days after the escape. The escape had the hallmarks of being unplanned.
When sentencing, the Court should consider the seriousness of the offending and the importance of deterrence. However, Mr Hussain’s personal circumstances call for a merciful approach to be taken.
The Department of Immigration has granted Mr Hussain a temporary protection visa but not yet released him from detention. In Briese[12], the Queensland Court of Criminal Appeal observed that:
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 could significantly impede on Mr Hussain’s ability to participate meaningfully in the Australian community.
[12] [1998] 1 Qd R487 at 491. See also Newcombe v Police [2004] SASC 26 at [24-26]
Notwithstanding the public interest in the need for general deterrence for offending of this nature, the evidence of Mr Hussain’s past and present mental condition, his personal circumstances and his prospect for rehabilitation indicate that it would not be appropriate to proceed to record a conviction or impose an immediate custodial sentence. Having regard to all of the above factors, including the further evidence placed before this court, it is appropriate to proceed without recording a conviction. Mr Hussain’s personal circumstances have allowed a merciful approach to be taken.
The appeal against sentence is dismissed.