Warnakulasuriya v The Queen
[2009] WASC 257
•16 SEPTEMBER 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: WARNAKULASURIYA -v- THE QUEEN [2009] WASC 257
CORAM: HALL J
HEARD: 28 AUGUST 2009
DELIVERED : 16 SEPTEMBER 2009
FILE NO/S: SJA 1060 of 2009
BETWEEN: THUSHARA SAMPATH FERNANDO WARNAKULASURIYA
Appellant
AND
THE QUEEN
Respondent
FILE NO/S :SJA 1061 of 2009
BETWEEN :SUMITH SURESH KUMARA MENDIS BALAPUWADUGE
Appellant
AND
THE QUEEN
Respondent
FILE NO/S :SJA 1062 of 2009
BETWEEN :PRASATH INDIKA MENDIS BALAPUWADUGE
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
For File No : SJA 1060 of 2009
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE J R PACKINGTON
Citation :CI 16 of 2009
For File No : SJA 1061 of 2009
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE J R PACKINGTON
Citation :CI 15 of 2009
For File No : SJA 1062 of 2009
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE J R PACKINGTON
Citation :CI 14 of 2009
Catchwords:
Criminal law - Sentencing - Commonwealth offences - Escaping custody (immigration detention) - Whether imprisonment only option - Whether reasons of magistrate adequate - Whether dismissal or discharge under s 19B Crimes Act 1914 (Cth) open
Legislation:
Crimes Act 1914 (Cth), s 17A, s 19B
Migration Act 1958 (Cth), s 197A
Result:
Appeal allowed
Suspended sentences of imprisonment set aside
Appellants resentenced
Category: D
Representation:
SJA 1060 of 2009
Counsel:
Appellant: Mr A J Robson
Respondent: Mr D W L Renton
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (Cth)
SJA 1061 of 2009
Counsel:
Appellant: Mr A J Robson
Respondent: Mr D W L Renton
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (Cth)
SJA 1062 of 2009
Counsel:
Appellant: Mr A J Robson
Respondent: Mr D W L Renton
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Al‑Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562
Bridle v Gomravi [2005] SASC 295
Brinkman v Dix (No 2) [1999] TASSC 65
Chan v The Queen (1989) 38 A Crim R 337
Cobiac v Liddy (1969) 119 CLR 257
Commissioner of Taxation v Baffsky [2001] NSWCCA 332; (2001) 122 A Crim R 568
Dadson v O'Brien [1998] TASSC 75
Elder v Said [2005] SASC 286
Elder v Shojaee [2005] SASC 285
Evans v Commonwealth Services Delivery Agency [2009] SASC 75
Freeman v Pulford (1988) 92 FLR 122
Krakouer v Durka (Unreported, WASC, Library No 980595, 14 October 1998)
Matta v Australian Competition and Consumer Commission [2000] FCA 729
Moreland v Snowdon [2007] WASC 137
Morrison v Behrooz [2005] SASC 142; (2005) 239 LSJS 285
Police v Kakar [2005] SASC 222
R v GP (1997) 93 A Crim R 351
R v O'Keefe [1969] 2 QB 29
R v Sinclair (1990) 51 A Crim R 418
Shillabeer v Hussain [2005] SASC 198; (2005) 220 ALR 239
Williams v Ghorban [2005] SASC 283
HALL J: Each of the three appellants appeals against the sentence imposed on him in the Magistrates Court on 21 May 2009. They each pleaded guilty on that day to one charge of escaping from the immigration detention centre on Christmas Island contrary to s 197A of the Migration Act 1958 (Cth). They received the same sentence; 3 months' imprisonment with an order that they be released immediately upon entering into a recognisance in the sum of $100 to be of good behaviour for 2 years pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth).
The facts
The offences occurred sometime in the evening between 18 and 19 December 2008. At that time the appellants were being held at the detention centre on Christmas Island. They had been held there after arriving in Australia by boat from Sri Lanka on or about 28 November 2008. Sometime shortly before they escaped the detention centre they were advised that their requests for asylum had been unsuccessful and that they would be deported from Australia and returned to Sri Lanka on a charter flight which was due to leave on Saturday, 20 December 2008. At around 5.30 am on Friday, 19 December 2008 officials at the detention centre discovered that the appellants were missing and informed police.
A search of the bushland surrounding the detention facility was conducted by police with the assistance of SES volunteers. The search then widened to include abandoned housing and accessible parts of the coastline. At around 4 pm several calls were made to the police by members of the public stating that persons matching the description of the appellants had been seen in the area surrounding the district high school. When police attended, the appellants surrendered without incident.
The appellants were returned to immigration custody. Their escape thwarted the plan to deport them by charter plane. They each subsequently sought protection visas and procedures relating to the consideration of those applications have resulted in them remaining in immigration custody, where they continued to be held as at the date of the hearing of this appeal.
Personal circumstances
The appellants pleaded guilty at the first opportunity and were represented before the learned magistrate by a Legal Aid solicitor. Extensive submissions in mitigation were made on behalf of the appellants.
The learned magistrate was advised that Thushara Warnakulasuriya was aged 35, was married and had three children aged 15, 12 and 5. Sumith Balapuwaduge was aged 28, married and had one child aged 2. Prasath Balapuwaduge was 26, married and had one child aged 5. They had come from two villages on the north‑west coast of Sri Lanka and had all worked as fishermen prior to coming to Australia.
Their average income as fishermen was approximately $AUD150 per week, however fishing had become increasingly unreliable in recent years. None of the appellants owned their own boat. They had each been employed as crew on boats owned by others.
Sumith and Prasath Balapuwaduge are brothers and had lived with their parents or parents‑in‑law. Thushara Warnakulasuriya is the cousin of the other two appellants. He owns his own home, which was estimated to be worth approximately $AUD12,000, although it is mortgaged.
Each of the appellants was described as being deeply and devoutly religious and had been heavily involved in their local Roman Catholic Church in Sri Lanka. They attended church almost everyday when they were at home and not out fishing. Since they were very young they have each prayed for about an hour each day.
The appellants claimed to have left Sri Lanka for three reasons. First, they were supporters of a political party called the United National Party, which was said to be sympathetic to the 'Tamil Tigers'. They said that friends of theirs had been killed because of such political connections, including a close friend of Mr Warnakulasuriya who was killed in October 2006. Sumith Balapuwaduge had been attacked and stabbed on one occasion in Sri Lanka. The father of the Balapuwaduge brothers had also been attacked so badly that he could not walk for a year. Thushara Warnakulasuriya claimed that prior to leaving Sri Lanka he had been in hiding because he feared that he would be killed because of his political connections. Prasath Balapuwaduge claimed that he avoided being the victim of an attack by obtaining the protection of a Catholic priest.
The second reason for fleeing Sri Lanka was that they claimed that there were problems practising their religion in that country. Most of the people in the villages from which they came were Buddhists and Christianity was a minority religion. No details were provided of what problems the appellants faced in this regard.
The third reason that the appellants fled Sri Lanka was that they hoped to obtain a better life in Australia for themselves and their families.
Whilst in Sri Lanka the appellants were approached by a rich and powerful boat owner named Kumara. Kumara was said to be a member of the ruling political party. Kumara asked the appellants if they wished to flee to Australia on one of his boats. He wanted $AUD8,000 from a group of 12 people who would be transported on the boat. This amounted to about $AUD700 each. The appellants were told that Kumara was going to arrange for another 50 asylum seekers to join the 12 local people on the boat. The original 12 boarded the boat and were told to wait for the others to join them. They waited three days and then decided that they would leave without the other people. Although there was no captain or crew on the vessel, being fishermen they had maritime skills and felt able to sail the boat to Australia.
After about a month at sea they arrived at Shark Bay on or about 28 November 2008. Shortly after their arrival they were transferred to the Christmas Island detention centre. After a few days they were allowed to make telephone calls and were able to make contact with their families in Sri Lanka. Their families advised them that Kumara had said that if any of the 12 persons on the boat returned to Sri Lanka he would arrange for them to be killed. The appellants believed that Kumara made this threat because they had left in his boat with only 12 people instead of the full complement of 62 and that Kumara had thereby missed out on the additional fares. They believed that the threat was a real one because Kumara was rich and powerful and that such threats could be readily carried out in Sri Lanka.
Shortly before their escape the appellants spoke again to their families in Sri Lanka and were again told of the death threats from Kumara. They claimed to be extremely frightened by this given their impending deportation. Accordingly, on the evening of 18 December 2008 they decided to escape, locate the Catholic Church on the island and seek sanctuary there. The wire fence around the perimeter of the detention centre was easily climbed. I note that there is no allegation that any damage was caused as a result of their escape. The appellants claim that their escape was not premeditated but was an act of desperation to avoid being returned to Sri Lanka on 20 December 2008 where they thought their lives would be at risk. They said that they could think of nothing else to do other than to try and seek the protection of the Church.
The appellants escaped around midnight and followed the road which led to the high school. They remained around the school buildings and in the adjacent jungle until the next afternoon. It was school holidays at the time so there were no students at the school. The appellants claimed that they wanted to surrender earlier as they were unable to find the Church and were hungry and thirsty. When approached by the police they surrendered without incident and were cooperative.
In support of the claim that death threats had been made in respect of the appellants, defence counsel tendered to the learned magistrate a handwritten note from another inmate of the detention centre. This inmate had travelled to Australia on a later trip. Prior to leaving he had been told by the owner of the vessel on which he travelled, who he described as a 'businessman', that he had 'made arrangements for fifty persons and having left them behind, twelve others have gone to Australia … if Rupees One Hundred Thousand is not given to him, all twelve persons will be killed by the thugs of the Minister'. Defence counsel submitted that she had spoken to the inmate through an interpreter who had indentified the businessman as Kumara and confirmed the death threat. The inmate was not called in the proceedings before the learned magistrate, but no issue was taken to the form or substance of this evidence.
Following their apprehension the appellants' families contacted an immigration lawyer in Melbourne who made applications for protection visas on their behalf and took action to prevent the Immigration Department from deporting them. Sometime around March 2009 the Commonwealth Government changed its policy in respect of the detention of some unlawful non‑citizens with the consequence that a number of those who had travelled to Australia with the appellants were released into the community pending the resolution of their protection visa applications. However, a direct consequence of their escape was that the appellants were considered ineligible for community detention.
Through their counsel, the appellants expressed remorse for their offending. They asked to plead guilty at the earliest opportunity. A number of references from members of the Christmas Island community were tendered on their behalf. One of the references was from Ms Charlene Thompson, a social worker in the employ of the Coalition for Asylum Seekers, Refugees and Detainees. She stated that she had been visiting the appellants every week since February 2009 and that she had found them to be 'humble, open and religious and regretful of their actions to run away to find solace and support from the Church'. A second reference was from Monsignor John Murphy who was the Catholic priest on Christmas Island from 6 ‑ 17 April 2009. During that time he met the appellants on four occasions. He stated that he was 'convinced that they are very committed Catholics, with a great respect for the Church and its ministers'. He also said that he was 'convinced that these three young men have a great respect for authority, and did not escape detention with any malicious intention'.
References for each appellant were also provided by Mr Ronald De Cruz, the chairperson of the Christmas Island Catholic Committee. He said that he had known the appellants for approximately six months as parishioners and that each of them was honest, courteous and religious. The appellants are all members of the Church choir. There were also references from Ms Susan De Cruz who described the appellants as 'very polite, humble and religious'. There were references from Ms Celestine Marsh who said that she had known the appellants for several months in her capacity as a fellow member of the Catholic Church congregation. She said that she had worked with them in developing music for church services and had found them to be of good character. She said the appellants attended weekly church services and had volunteered at the Church and in the community. I would note that the extent to which they are able to attend to such voluntary activities appears to be limited given that they have continued to be detained at the detention centre. Finally, there were references from Mr Paul Maberly, the Chief Executive Officer of the Shire of Christmas Island. I understand Mr Maberly's contact with the appellants had also been in the church context. Mr Maberly states that he found the appellants to be of a good character and humble in spirit.
Sentences
Defence counsel urged the magistrate to dismiss the charges under s 19B of the Crimes Act on the basis that there were significant extenuating circumstances, that the appellants had favourable antecedents and that it was inexpedient to inflict any punishment, in particular bearing in mind the prospects of rehabilitation and the adverse impact that convictions could have on the success of their applications for protection visas.
The prosecution submitted that the offences were so serious that a conviction needed to be recorded against each offender and that the appropriate penalty was imprisonment with time to serve. It was submitted that it was the intention of Parliament to treat the offence of escaping immigration custody, contrary to s 197A of the Migration Act, as a serious matter and to impose a penalty regime that reflected the need for general deterrence.
The learned magistrate referred to the need for general deterrence and noted that the offence was analogous to the offence of escaping lawful custody. He referred to the circumstances of the offending saying that
I suppose that the facts of this case in which the three men, having escaped from the detention centre then just found themselves hanging around in the jungle, as it was described, until they became thirsty and hungry and gave themselves up, might of themselves present some sort of deterrence to other people who might think about escaping from the detention centre on Christmas Island, as opposed to other detention centres (ts 31).
The learned magistrate also noted that one of the reasons the appellants had fled Sri Lanka was that they were fearful for their lives and that this was also a reason why they feared being deported back to that country. He noted that their escape avoided them being sent back to Sri Lanka because they were at large and could not be located at the time that a flight had been arranged. His Honour then made reference to the more recent death threats that were reported to have been made by the owner of the vessel and said:
If one views those reasons for travelling to Australia in the first place as also reasons for wishing not to be put on a plane back to Sri Lanka, the fact that they were fearful for their lives seems, to some extent at least, to have arisen out of the circumstances in which they departed Sri Lanka. In other words, making off with, or in a boat owned by a local identity, and without some of his paying passengers (ts 32).
The learned magistrate then turned to the question of whether a dismissal or discharge under s 19B of the Crimes Act was appropriate in the circumstances of this case. He referred to the case of Morrison v Behrooz [2005] SASC 142; (2005) 239 LSJS 285 and noted that a significant factor in that case appeared to be the mental illness of the offender. I will return to that case again later. His Honour then said that there was a need for a deterrent sentence in this case because 'they have managed to stymie their repatriation, on a flight to Sri Lanka, by removing themselves from the place where they were detained. One can readily imagine that other people in a similar position might think it a good idea to resort to that sort of action themselves'. His Honour referred to the two‑stage process required by s 19B and stated that he had 'little information' before him as to the character and antecedents of the appellants; that the offences could not be considered trivial; and that the offences were not committed in circumstances that he considered to be extenuating. He said that even if he was wrong in that respect, he did not consider that the second stage, namely as to whether it was inexpedient to inflict any punishment, could be satisfied in this case as a punishment involving some general deterrent effect was required.
Grounds of appeal
The grounds of appeal in respect of each of the three appellants are the same.
Ground 1
Ground 1 is as follows:
1.The Learned Magistrate erred in law in failing to consider s 17A of the Crimes Act 1914, which provides that the court should not pass a sentence of imprisonment unless, having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.
PARTICULARS:
(i)S 17(A)(2) requires that a court passing a sentence of imprisonment shall state the reasons for its decision that no other sentence is appropriate.
(ii)The Learned Magistrate failed to provide reasons or refer to this factor.
In the proceedings before the magistrate the prosecutor made reference to s 17A of the Crimes Act and read out the text of subsection (1). That subsection reflects the longstanding common law principle that a sentence of imprisonment should be a sentence of last resort and should not be imposed unless all other available options have been considered. Section 17A also requires that where a court passes a sentence of imprisonment it must state the reasons why no other sentence is appropriate. There is no doubt that a sentence of imprisonment that is effectively suspended by ordering immediate release on a recognisance under s 20(1)(b) is, nonetheless, still a sentence of imprisonment and should not be imposed if other options are open: R v O'Keefe [1969] 2 QB 29, 94 (Parker LCJ), quoted by Malcolm CJ in R v GP (1997) 93 A Crim R 351, 372.
It was submitted for the appellants that the learned magistrate had failed to give adequate reasons for imposing a suspended sentence because there was no express reference to any sentencing options other than a dismissal or discharge under s 19B or imprisonment. It was submitted that the other appropriate and available option in the case of the appellants was conviction with a release on a recognisance to be of good behaviour under s 20(1)(a) of the Crimes Act. That option was referred to in submissions made to the learned magistrate on behalf of the appellants.
Section 17A of the Crimes Act provides as follows:
17ARestriction on imposing sentences
(1)A court shall not pass a sentence of imprisonment on any person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.
(2)Where a court passes a sentence of imprisonment on a person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, the court:
(a)shall state the reasons for its decision that no other sentence is appropriate; and
(b)shall cause those reasons to be entered in the records of the court.
(3)The failure of a court to comply with the provisions of this section does not invalidate any sentence.
(4)This section applies subject to any contrary intention in the law creating the offence.
The appellants submitted that s 17A(2) required the learned magistrate to expressly refer to other options and to explain why he considered them to be inappropriate. The failure to do so was said to be an error in itself regardless of whether the sentences imposed fell within the range of penalties available in the circumstances of this case. The appellants relied in this regard on the decision of Kearney J in Freeman v Pulford (1988) 92 FLR 122. In that case the appellant was convicted of fraudulently misappropriating money whilst employed at a post office and was sentenced to 12 months' imprisonment to be released after 2 months on entering into a good behaviour bond for 2 years. An appeal against the sentence was allowed principally on the ground that the sentencing magistrate had considered himself bound by a decision of the Court of Criminal Appeal of the Northern Territory to impose a sentence of imprisonment for an offence involving a breach of trust by an employee. In approaching the task in this way the magistrate had failed to observe the requirements of s 17A of considering whether other sentencing options were available in the circumstances of the case. There was no suggestion in the present case that the learned magistrate considered that he had no other option than imprisonment and the fact that he considered and rejected a s 19B dismissal or discharge indicates that he was conscious of the ambit of his discretion.
The appellants maintained that, notwithstanding the differences between this case and Freeman v Pulford, comments made by Kearney J supported an interpretation that required magistrates to give detailed reasons why a sentence of imprisonment was the only appropriate penalty. The passage which the appellants relied upon reads as follows:
I observe in passing that I do not consider that Mr Trigg, counsel for the respondent, was correct in his submission that the effect of s 17A(3) is that a failure to comply with s 17A(1) does not ipso facto constitute a ground for upholding an appeal against sentence, and that some further error in the sentencing process must be shown. In Morgan v Schrapel (1983) 2 NTJ 523 it was accepted that noncompliance with s 17A(1) meant that the sentence imposed could be reviewed. The purpose of s 17A(3) is simply to make it clear beyond doubt that the provisions of ss 17A(1) and 17A(2) are directory and not mandatory, with the result that noncompliance with them does not make the sentence a nullity; see to the same effect Morris v Crown Office [1970] 2 QB 114 at 122‑123, per Denning MR, a decision on corresponding legislation in the United Kingdom which lacks an equivalent to s 17A(3) (127 ‑ 128).
In my view, the obiter comments by Kearney J in Freeman v Pulford do not assist the appellants for two reasons. First, his Honour was concerned with whether a failure to comply with s 17A(1) could provide a ground of appeal, not with whether a failure to comply with s 17A(2) could do so. As noted, s 17A(1) requires that consideration be given to all available options before imposing a sentence of imprisonment. In Freeman v Pulford it was possible to say that the magistrate had not given such consideration because he had inappropriately confined his discretion by misinterpreting the effect of a superior court decision. Absent an express statement of this type it may be difficult to conclude that a magistrate has failed to consider other options. Another case relied upon by the appellants, Evans v Commonwealth Services Delivery Agency [2009] SASC 75, also similarly turned on the particular factual circumstances of that case. Second, s 17A(2) requires that reasons be stated for a decision that no other sentence but one of imprisonment is appropriate but does not stipulate the content of those reasons nor does it specifically require that the magistrate run through a checklist of possibilities and state why each of them is not appropriate in the circumstances of the case. The reasons of a magistrate have to be examined in their totality and provided that, when so examined, they adequately explain why no other sentence but one of imprisonment is considered appropriate s 17A(2) is satisfied.
Section 17A was also considered in Dadson v O'Brien [1998] TASSC 75. In that case, Wright J said:
[Section] 17A(2)(a) requires that reasons must be given by the sentencing court explaining why the view has been taken that no sentence other than imprisonment is appropriate. It may be observed at the outset that s 17A(2)(a) does not specifically require the sentencing court to isolate such reasons from other considerations which it has taken into account or to compendiously list those factors as distinct from other factors which have moved the court to take the course of imprisoning the offender. In short, s 17A does not require the court to give separate and distinct reasons for concluding that a sentence of imprisonment is the only appropriate response to the offence being considered, if, in the course of discussing factors relevant to the question of sentence generally, the judicial officer indicates those features which he regards as significantly enhancing the criminality of the offence or the culpability of the offender. Nor, in my opinion, is the court required to give, in effect, a separate decision, making unequivocal reference to s 17A or its specific requirements (see Petreski v Cargill (1987) 31 A Crim R 277 at 285). Usually, the comments made by an experienced judge or magistrate will make it abundantly clear why the sentence of imprisonment has been regarded as the only appropriate response in any individual case (see Diner v Edwards A27/1995, Crawford J at 5).
The court is, of course, required by s 17A(1) to consider 'all other available sentences' in the course of coming to its conclusion that imprisonment is required, but it would be ludicrous to think that this may require the court to expressly mention and discard every conceivable mode of disposition other than imprisonment. What a farce would be created if the sentencing magistrate or judge were required to go through a check list of possible outcomes, such as discharge without conviction, conditional discharge with or without conviction, probation with or without special conditions or supervision, a fine, whether immediate or suspended and community service, and to discuss each and every one as an 'available sentence' before turning his attention to the appropriateness of imprisonment in every federal case. I am satisfied that such is not what Parliament had in mind when s 17A was enacted.
The purpose of s 17A is to reinforce that which has been received wisdom at common law for decades, viz, that imprisonment is the ultimate penal sanction which should be reserved for those cases in which some lesser punishment is inappropriate.
In my opinion, it would be a rare case in which s 17A will afford a basis for impugning a sentence where it is plain that the sentencing judge or magistrate has taken account of all relevant matters and has justifiably concluded that either a suspended or immediate custodial sentence is required.
An example of such a case is to be found in Freeman v Pulford (1988) 92 FLR 199 where the sentence under appeal was imposed by a magistrate who considered himself bound by a superior court decision to impose a sentence of imprisonment in the circumstances. Consequently, he restricted his sentencing discretion and his decision was overturned. Kearney J held that by acting in this way, the magistrate had acted contrary to the express provisions of s 17A(1).
See also Brinkman v Dix (No 2) [1999] TASSC 65.
I agree with the views expressed by Wright J and, accordingly, it cannot be said that merely because the learned magistrate did not specifically refer to options other than a s 19B order or imprisonment that there was failure to provide the reasons required by s 17A(2). In my view, it is clear from the learned magistrate's reasons that he considered that a sentence of imprisonment was the only appropriate disposition in the circumstances of this case. It is evident that he was conscious that other possibilities were open when dealing with offences of this type but did not consider them appropriate in the particular circumstances of this case. Whether his Honour was correct in reaching that conclusion is a separate question. In my view, there was not a failure to comply with s 17A(2) and, accordingly, this ground must be dismissed.
Ground 2
Ground 2 reads:
2.The Learned Magistrate erred in law by imposing a sentence of imprisonment when imprisonment was not warranted by the circumstances.
PARTICULARS:
(i)S 16A(1) requires that a court impose a sentence of a severity appropriate to the circumstances of the offence.
(ii)The sentence imposed exceed the severity appropriate in the light of the circumstances of the Appellant, his antecedents, the circumstances of the offence and sentences imposed for similar offences.
In effect, this ground argues that the sentence imposed was manifestly excessive having regard to all of the circumstances. In Chan v The Queen (1989) 38 A Crim R 337, Malcolm CJ said:
To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type and the personal circumstances of the offender (342).
Section 197A of the Migration Act provides that a detainee must not escape from immigration detention and stipulates a maximum penalty of imprisonment for 5 years. The policy of the Migration Act was considered by the High Court in Al‑Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562. In that case, Gleeson CJ said:
The Migration 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 [1]. (footnotes omitted)
In Morrison v Behrooz Gray J said:
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 s 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 s 197A of the Migration Act. This policy is a material consideration when sentencing an offender under this section [23].
His Honour went on to say:
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 [31].
His Honour then said:
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 [36]. (footnotes omitted)
Section 16A(1) of the Crimes Act requires that a court dealing with a federal offence must impose a sentence of a severity appropriate in all the circumstances of the offence. Section 16A(2) sets out a number of matters that the court must take into account, where information relevant to them is known to the court. Although general deterrence is not specifically referred to in s 16A(2) there is no doubt that it is necessarily incorporated in complying with s 16A(1): R v Sinclair (1990) 51 A Crim R 418.
It is clear from the learned magistrate's reasons that he appreciated the policy underpinning s 197A of the Migration Act and the importance of deterrence as a consideration.
As I have noted, the maximum penalty for this offence is 5 years, however, where dealt with summarily, pursuant to s 4J of the Crimes Act, the maximum penalty is 12 months. Nevertheless, in considering the seriousness of the offence it is relevant to take into account the maximum penalty set by the legislature. It is also relevant to note that in 2001 the maximum penalty was increased from 2 years to 5 years' imprisonment. The reason for that increase was explained by the Explanatory Memorandum to the Migration Legislation Amendment (Immigration Detainees) Bill 2001 (Cth) which stated:
[T]he 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 s 47 of the Crimes Act, which is inapplicable to detainees.
Given the obvious and intended analogy between this offence and the offence of escaping from a prison, it is relevant to take into account that in respect of the latter offence, sentences of imprisonment are considered to be the normal outcome. In Krakouer v Durka (Unreported, WASC, Library No 980595, 14 October 1998), Miller J said:
There is a line of authority in this Court … which indicates that for the offence of escaping legal custody from a lockup or prison, a sentence of imprisonment will invariably be imposed, and cumulative at that. As was said by Steytler J in Delaney (at 7), the offence 'strikes at the disciplinary procedures in prisons and leads to the undermining of the prison system' (18).
There are some distinctions that need to be made between escaping from immigration detention and escaping a prison. In the latter case the escapee is often already serving a sentence imposed as a punishment for a previously committed crime. The escape of a convicted prisoner or a person remanded in custody charged with a serious crime may involve great risks to the safety of the public. On the other hand, the importance of general deterrence is equally significant.
The significance of general deterrence does not, however, exclude other factors, in particular the circumstances of the offending. Not every escape from a detention centre will be equally serious. In this case it is apparent that the appellants were able to effect their escape with relative ease and without causing property damage. There was no suggestion that their escape risked the safety of immigration officials or any member of the public. They were at large for less than 24 hours and readily surrendered themselves when apprehended. Whilst the escape was intended to frustrate their impending deportation, this was mitigated by the fact that each of the appellants claimed to hold a genuine fear that if deported to Sri Lanka their lives would be in danger.
It is also relevant to consider whether there are discernable standards that have been applied to sentencing for offences of this type. Counsel for the appellants referred to a series of decisions by Gray J in the Supreme Court of South Australia relating to a number of escapes from the Woomera Immigration Reception and Processing Centre and the Baxter Immigration Detention Facility. The cases all involved prosecution appeals from decisions by a magistrate to discharge the offender under s 19B or, in one case, to release on a recognisance under s 20(1)(a).
In Morrison v Behrooz the respondent had escaped with five others in November 2001 but was not dealt with until October 2004. Some damage was caused to a fence in effecting the escape. The respondent was apprehended within hours at a railway siding some 9 km from the detention centre. The sentencing magistrate was found to have erred by not taking into account the policy behind the legislation or the importance of general deterrence and had also failed to identify and implement the two‑stage process required before making an order under s 19B. Nonetheless, the appeal was dismissed by Gray J because on resentencing the respondent he considered that the appropriate disposition was a s 19B discharge. In coming to this conclusion his Honour referred to the fact that the escape did not involve any personal violence and minimal property damage. He said that the offence could not be described as trivial but had all the hallmarks of being relatively unplanned. His Honour also had particular regard to the respondent's mental health history, which was one of major depression with several suicide attempts. He said that that history, whilst not excusing the behaviour, did provide an explanation for the conduct and suggested that the criminal culpability was materially diminished. His Honour also took into account that the respondent had good prospects for future rehabilitation and that a conviction could have significant detrimental effects on the respondent's opportunities to participate meaningfully in the Australian community.
Shillabeer v Hussain [2005] SASC 198; (2005) 220 ALR 239 involved another escape from the Woomera Centre. This escape occurred in 2002 as a result of the actions of protestors who passed items to detainees enabling them to cut through razor wire. Star pickets were also used by the detainees to prise open a palisade fence. Thirty‑five detainees escaped on this occasion and got into vehicles used by the protestors and were driven towards Woomera. The respondent was apprehended two days later together with 11 others at a campsite 30 km north of Port Augusta. Gray J concluded that the magistrate had erred in the same respects as in Morrison v Behrooz, however, on resentencing, he determined that a s 19B discharge was nonetheless appropriate and therefore dismissed the appeal. In coming to that conclusion his Honour referred to significant mental health problems of the respondent as a result of traumatic experiences he had suffered in Afghanistan. His Honour also noted that the respondent was of good character and had responded positively to medical treatment and demonstrated a positive work ethic. He concluded that the respondent was a good candidate for rehabilitation. He said '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'. His Honour said that the escape did not involve any personal violence and minimal property damage and had occurred amidst a large scale demonstration where protestors facilitated and encouraged the escape. His Honour said that the respondent's personal circumstances called for a merciful approach.
In Elder v Said [2005] SASC 286 the facts were similar to Shillabeer v Hussain and Morrison v Behrooz. The respondent on this occasion escaped when a large number of protestors pulled down fences around the detention centre and discharged flares inciting the detainees to climb on rooftops waving banners and chanting. Tools were then passed to the detainees including wire cutters, pliers, a spanner and a pocket knife and a fence was breached in two places. Fifty detainees escaped under cover of rocks being thrown at detention centre staff. The details of the respondent's apprehension were not known, however it appeared that he had been at large for only a very short time. As with the previous two cases, Gray J was of the view that the sentencing magistrate had failed to take into account the policy of the Migration Act and the two‑stage process required before making an order under s 19B. However, he dismissed the appeal on the basis that in resentencing he was of the view that a s 19B discharge was the appropriate disposition. His Honour noted that the respondent appeared to be of good character and that the medical evidence suggested that he was receiving treatment for a mental health condition. His Honour referred to the fact that the escape did not involve personal violence and had all the hallmarks of being unplanned. The respondent was said to have limited cognitive ability and had spent a lengthy period in a mental institution. He had good prospects of rehabilitation.
Elder v Shojaee [2005] SASC 285 involved another charge arising from the same escape as the previous case. Again, though the magistrate was found to have erred, the prosecution appeal was dismissed because Gray J came to the view that a s 19B discharge was the appropriate disposition. In this case the respondent was suffering from a chronic major depressive disorder, post‑traumatic disorder and panic disorder with agrophobia. His Honour noted the detrimental impact of detention on the respondent's mental health but that he had substantially improved since being granted a temporary protection visa.
In Police v Kakar [2005] SASC 222, a prosecution appeal against a s 19B discharge for an escape arising out of the same incident as the previous two cases was allowed. In that case the respondent had also committed a further offence of escaping about a month later. Gray J noted that during the second escape the respondent knew, or ought to have known, that leaving a detention centre was a serious offence. His Honour held that whilst a s 19B discharge may have been appropriate for the first offence, a dismissal of the second offence was clearly an error. On resentencing his Honour took into account that the respondent had felt humiliated by the lack of personal freedom and the lack of certainty or control over his life whilst in detention. His Honour noted that the respondent was not suffering from any serious mental health problems but had experienced frustration and a depressed mood as a result of the indeterminate detention. In respect of the second offence his Honour set aside the dismissal under s 19B and imposed a conviction and release upon entry into a recognisance to be of good behaviour for 3 years pursuant to s 20(1)(a) of the Crimes Act.
In Bridle v Gomravi [2005] SASC 295 the prosecution appealed against a s 20(1)(a) recognisance to be of good behaviour for 12 months. The significant distinguishing feature in this case was that the respondent had been able to remain at large for over a year, had travelled to Sydney and resided with a female friend there. There was no psychiatric or psychological report relating to the respondent but there was reference to him having a depressive mental condition and to making previous attempts at self‑harm. Gray J again held that the magistrate had failed to have due regard to the policy underlying the legislation and the need for general deterrence and had not given adequate weight to the considerable period which the respondent was at large, which was described by his Honour as 'continuing and deliberate disregard for the law'. In resentencing his Honour imposed a sentence of 3 months' imprisonment to be released immediately on entering into a recognisance to be of good behaviour for 3 years pursuant to s 20(1)(b) of the Crimes Act.
Williams v Ghorban [2005] SASC 283 related to an escape from the Baxter Immigration Detention Facility in South Australia. Again, this was a prosecution appeal against a s 19B discharge. The circumstances of the offending were that the respondent and another detainee had scaled a perimeter fence at night. A detention officer had arrived at the scene in a four‑wheel drive vehicle and attempted to prevent them from escaping. The officer held one of the men to the ground but was pulled away by the other detainee. The men got into the four‑wheel drive and the officer broke one of windows of the car by throwing his radio at it. The officer then leaned into the car and held onto the man sitting in the driver's seat. The other detainee then got out of the car and kicked the officer. The two men then ran away. The officer sustained scratches and cuts to his hands, shoulders and bruising to his left arm. The respondent and the other detainee were apprehended early the following morning. Gray J held that the magistrate had erred in the same way as in the other cases. In resentencing his Honour noted that the escape was a serious one because it involved an assault on an employee which had led to personal injury and that property damage had also been caused. He also noted that the offence had involved the 'commandeering' of a vehicle. There was some evidence that the respondent had suffered from a major depressive illness and post‑traumatic stress disorder and his Honour held that, whilst that history did not excuse his behaviour, it did provide an explanation for the conduct. His Honour held that the aggravating features of this escape justified the imposition of a conviction and sentenced the respondent to be released on a recognisance to be of good behaviour for 3 years pursuant to s 20(1)(a) of the Crimes Act.
The respondent suggests that the cases referred to can be distinguished on the basis that a significant factor in each of them was the presence of mental illness. However, it is apparent that the level of mental illness varied considerably from mere frustration to chronic depression. It is also apparent that this was not the only factor upon which Gray J placed reliance. In particular, the circumstances of the offending was at least as, if not more, important a factor in the outcomes. This is particularly evident in Police v Kakar and Bridle v Gomravi in which previous offending and being at large for an extended period had a significant effect upon the outcome.
When compared to the other cases, the circumstances of the offending here is comparable to some of these cases and significantly less serious than others. In particular, it is comparable to Morrison v Behrooz and Shillabeer v Hussain and less serious than Police v Kakar, Bridle v Gomravi and Williams v Ghorban. However, the sentences imposed here were greater than all of the cases other than Bridle v Gomravi. That apparent discrepancy does not in itself mean that the sentences imposed here were erroneous. A sample of cases does not necessarily establish a sentencing range, particularly given that circumstances can vary significantly. Consideration needs to be particularly given to the personal circumstances of the appellants.
It was accepted in this case that none of the appellants had criminal records. Furthermore, they had expressed remorse and pleaded guilty at the earliest opportunity. There were a number of references speaking of their good character and this was also relevant in considering their prospects of rehabilitation. The prosecution submitted that the value of the references was diminished by the fact that they were the product of the authors having known the appellants for a limited period of time. Perhaps that was not unusual given that they had only been held in detention in Australia for that period of time and the ability to obtain references from Sri Lanka was limited by their circumstances. There was nothing, however, to suggest that the referees were insincere or inaccurate in their estimations of the appellants.
It is also relevant to take into account the motivations for escaping. It would seem clear that the appellants did not intend to remain on the run or to merge into the broader Australian community. Their immediate intention was to avoid deportation and, whilst this no doubt frustrated the intentions of the immigration officials, this was because of fear of suffering personal harm if they were returned to Sri Lanka. That fear was given some support by the tender of the note from the other inmate. The prosecution did not seek to challenge these claims and, accordingly, the appellants were not put to formal proof. In any event, it would seem that the learned magistrate implicitly accepted that they had such genuine fears albeit that he implied that they were to some extent the cause of these threats by having taken the vessel without the authority of the owner.
In my view, the personal circumstances of the appellants were significantly mitigatory. When those factors, together with the circumstances of the offending, are taken into account, a sentence other than one of imprisonment was open. I am reinforced in this view by the cases that have been referred to. Even taking into account differences in circumstances, the sentences here are inconsistent with those imposed in those cases. Accordingly, in coming to a conclusion that the only appropriate sentence was one of 3 months' imprisonment suspended upon entering into a recognisance, the learned magistrate must, in my view, have failed to have adequate regard to the circumstances of this offending and to the personal circumstances of the appellants. Ground 2, therefore, succeeds.
Ground 3
Ground 3 reads:
3.The Learned Magistrate erred in law by failing to take into account the public interest of offenders of otherwise good character being successfully rehabilitated and the potential impact of a conviction when considering the appropriateness of an order under s 19B of the Crimes Act 1914.
Section 19B of the Crimes Act relevantly provides:
19BDischarge of offenders without proceeding to conviction
(1)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, 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 or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions:
(i)that he or she will be of good behaviour for such period, not exceeding 3 years, as the court specifies in the order;
(ii)that he or she 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 or her 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 or she 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.
…
As has been noted, s 19B requires that a sentencing magistrate engage in a two‑stage exercise. First, regard must be had to the factors referred to in s 19B(1)(b)(i), (ii) and (iii). Second, the court must then consider whether, in any event, it is inexpedient to inflict punishment. In answering the second question the court is to consider all of the circumstances of the offence and the personal circumstances of the offender: Commissioner of Taxation v Baffsky [2001] NSWCCA 332; (2001) 122 A Crim R 568.
The prospects of rehabilitation of an offender is a relevant matter to take into account: s 16A(2)(n) of the Crimes Act. The magistrate in this case had the benefit of extensive submissions from defence counsel which included reference to the appellants' character and antecedents. There had also been submissions made in regard to the appellants' remorse and intentions never to offend again. No doubt these were matters that could be taken into account in assessing the appellants' prospects of rehabilitation.
The magistrate did not make specific reference to rehabilitation as a consideration but it does not follow from that that he failed to consider it. He was not obliged to run through s 16A(2) as if it were a checklist. The argument on this ground relies upon the proposition that it can be inferred that the magistrate did not take into account rehabilitation because, if he had, he would have discharged the appellants under s 19B. When so stated it is apparent that this argument must fail. Good prospects of rehabilitation do not necessarily lead to the conclusion that a s 19B discharge is appropriate. So much depends upon the circumstances of the offence and of the offenders. I do not accept that in concluding that a s 19B dismissal was not appropriate in the circumstances of this case his Honour must have failed to take into account the appellant's prospects of rehabilitation. This ground fails.
Ground 4
Ground 4 reads:
4.The Learned Magistrate erred in fact in determining that there was little evidence of the good character of the Appellant in the present case.
In dealing with whether a s 19B discharge was appropriate, the learned magistrate said 'I have little information before me as to character, antecedents, et cetera'. This was a reference to s 19B(1)(b)(i). The appellants submit that the word 'antecedents' is wide enough to include all aspects of an offenders background, past life, personal, family, social, employment and vocational circumstances and his or her current way of life and interaction with the lives and welfare of others: Commissioner of Taxation v Baffsky [27]. The appellants place particular reliance upon the character references. There were also extensive submissions made to the learned magistrate in regard to the appellants' backgrounds and personal circumstances.
The use of the phrase 'little information' appears, on the face of it, to be an inaccurate reference to the relevant information that had been placed before the learned magistrate. He did not specifically mention the character references, although I do not consider that it was strictly necessary to do so. However, his reference to 'little information' does indicate that he failed to give adequate regard to the information that was before him. The use of the diminutive 'little' can only be interpreted as a reference to the quantity of information, not its quality. This reinforces the conclusion reached in respect of ground 2. Ground 4 must therefore succeed.
Ground 5
Ground 5 reads as follows:
5.The Learned Magistrate erred in fact in determining that the circumstances of the Appellant were not particularly extenuating.
Again, the comments to which this ground is directed occurred in the context of consideration by the learned magistrate of s 19B. His Honour said 'The offence is not trivial, as I have explained already, and the extent to which the circumstances under which the offence was committed do not seem to me to be all that extenuating, also for the reasons that I have outlined'. Unlike the previous ground, this was a statement of conclusion not one as to whether relevant information existed or the extent of it.
The learned magistrate's reference to reasons that he had outlined appears to relate to his assessment that the fear for their lives held by the appellants was a result of threats which arose out of them 'making off with' a boat owned by Kumara without a large number of his paying passengers. One could well imagine that the owner of the boat would be very angry in such circumstances. However, the relevant consideration was whether the appellants acted out of genuine fear. Extenuating circumstances are circumstances which significantly reduce the moral culpability of the offending. In Moreland v Snowdon [2007] WASC 137 [44] Jenkins J said that such circumstances were those relating to the offending behaviour of the respondent which take the case out of the ordinary of offending of this nature. If, as seems to be the case, the learned magistrate accepted that the appellants acted out of genuine fear then it would be possible to view this as an extenuating circumstance. I cannot, however, discount that views in this regard may differ and I cannot conclude that the learned magistrate was necessarily wrong. In any event, given that grounds 2 and 4 succeed, the significance of this ground falls away.
Resentencing
As I have concluded that grounds 2 and 4 must succeed, it is necessary for me to consider what the appropriate sentence is in respect of each of the appellants. On resentencing, the court is entitled to take into account any new information that is available: s 14(5) Criminal Appeals Act 2004 (WA). The court was provided with affidavits to which were annexed statements by a social worker and a case report in regard to each appellant. The social worker is Ms Charlene Thompson who is employed by the Coalition for Asylum Seekers, Refugees and Detainees and was the author of one of the character references. The reports of Ms Thompson are similar in content. She states that the appellants were subject to a number of stress inducing factors at the time of their escape. Significantly, these include disappointment and anger that they had not been given a lawyer, which they allege that they had been promised. They are described by Ms Thompson as being mentally down and traumatised at the prospect of being returned to Sri Lanka and that this caused them to react instinctively when they escaped. She also refers to the fact that at the time of their threatened deportation the appellants had been one month and three days at sea on a small boat and in immigration custody for approximately three weeks. Ms Thompson says that she has met with the appellants almost every week since the time of their escape and that they present as being depressed with no certainty and no cause for hope. Ms Thompson states that she has noticed a gradual deterioration in mood and affect over the past three months.
The case reports are described as having been extracted from the appellants' medical files. The first two appear to be from a counsellor, Mr Max Schneider, dated 25 June 2009 in each case. The report in relation to Mr Sumith Balapuwaduge states that he has a tired and slightly unkempt appearance, is talkative but teary at times, has a lowered mood with blunted affect, and impaired cognitive and general functioning. Mr Schneider notes that Mr Balapuwaduge presents with significant anxiety and depression symptoms, that he reports sleeping problems, diminished appetite, long periods of time feeling sad and teary and is worried about his family and his situation. The report states that Mr Balapuwaduge needs weekly counselling to help him cope and to ensure that he does not deteriorate further. The report places his risk level at level 3, which indicates significant symptomatology, limited coping strategies and that he requires weekly contact with a counsellor.
The case report relating to Prasath Balapuwaduge is very similar and refers to him being frequently teary with a poor general functioning. This report says that personal resources have been exhausted and the appellant relies strongly on his faith. The risk level in this case is placed at level 4, which indicates highly symptomatic behaviour, high risk and exhaustion of individual coping strategies.
The document relating to Mr Warnakulasuriya appears to be case notes dated 20 July 2009 by a psychologist, Ms Brooke Feltis. These notes refer to an episode of suicidal thoughts, though this had since improved. There are references to anxiety and psychological issues, but no other details.
The respondent has submitted that the additional materials fail to establish any significant degree of mental illness. I accept that their value is limited and that they cannot be accorded the weight that would be given to the report of an independent and qualified psychologist or psychiatrist. I have taken the material into account, but only to a limited extent.
Offences of this type are serious and deterrence is an important factor. The efficient operation of detention centres, and the migration system generally, significantly depends upon escapes such as this not occurring. It is relevant that the appellants in this case escaped in order to frustrate their impending deportation and in this regard they appear to have been successful. It is not possible or appropriate for this court to attempt to make any assessment of the merits of that planned deportation or the validity of any claims by the appellants to remain in Australia. It is relevant to take into account that they were lawfully in detention and that significant resources were apparently expended in conducting a search for the appellants.
This appears to be conduct that was unplanned. The fact that the appellants surrendered themselves readily when located and were hungry and thirsty attests to the lack of planning. They appear to have had no thought as to what they would do after escaping other than to try to locate a church where they would take sanctuary. There was no prospect of them escaping into the broader Australian community given the location of the detention centre on Christmas Island. There was no property damage caused, nor was any officer or member of the public threatened or assaulted. The appellants were at liberty for a very short period of time and did not travel far. They were easily apprehended and cooperated with the police.
Each of the appellants acted out of fear that they may be killed if they were returned to Sri Lanka. It is impossible on the available evidence to assess whether there are good grounds for holding those fears. The appellants do not seek to excuse their behaviour on this ground but to explain what motivated them. They accept that it was wrong to escape and that there were other ways to deal with the threat of their impending deportation. I agree with the learned magistrate that other detainees in a similar position might be encouraged by the appellants' actions to consider that escaping would be a good way of deferring or frustrating their impending deportation. Clearly, there are very strong reasons why this should be deterred.
In taking into account the circumstances that now exist, including the additional material, I have given consideration to whether disposition under s 19B is appropriate. In my view, whilst the offences could not be described as trivial, the character, antecedents, mental health and the extenuating circumstances in which the offence was committed satisfy the first stage of s 19B. The extenuating circumstances are that the escapes were motivated by fear and were unplanned leading to speedy recapture. Whether those circumstances are sufficiently extenuating to justify a dismissal or discharge may be open to doubt. However, in any event, it is my view that the second stage is not met; it could not be said that it is 'inexpedient to inflict any punishment other than nominal punishment'. The importance of deterrence and the fact that the appellants intended to subvert their impending deportation requires that some real element of punishment be incorporated into any disposition.
I accept that the consequences of conviction are a relevant consideration: Cobiac v Liddy (1969) 119 CLR 257. But there is no clear evidence that convictions will have a certain effect on the appellants' immigration status and, in any event, this is not a consideration that would outweigh those I have already referred to. Furthermore, the exercise of the discretion under s 19B has been described as 'exceptional': Matta v Australian Competition and Consumer Commission [2000] FCA 729 [3] (French J). In many respects the personal circumstances of the appellants are typical of those held in detention centres, which is not to in any way minimise those circumstances. If the circumstances in which a s 19B dismissal is given are made are too broad, such orders no longer become exceptional and the intended purpose of a provision like s 197A of the Migration Act will be negated.
In my view, the appropriate disposition in each case is that a conviction be recorded and that the appellants be released forthwith upon entering into a recognisance to be of good behaviour. Taking into account the circumstances of the offending and the personal circumstances of the appellants, a sentence of imprisonment, whether immediate or suspended, is not appropriate. A recognisance under s 20(1)(a) of the Crimes Act appropriately balances the need for deterrence with the circumstances particular to the appellants. In coming to this conclusion I have also had regard to the appellants' prospects of rehabilitation. I accept that they have good prospects of rehabilitation and that those prospects will be enhanced by the setting aside of sentences of imprisonment notwithstanding that they will continue to have convictions recorded against them.
Conclusion
The appeal is allowed. The sentences imposed by the learned magistrate on the appellants are set aside. In lieu thereof each appellant is convicted of the offence and sentenced to be released forthwith on entering into a recognisance in the sum of $100 to be of good behaviour for a period of 12 months pursuant to s 20(1)(a) of the Crimes Act.
4
18
2