WILLIAMS v Ghorban - [2005] SASC 283

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WILLIAMS v GHORBAN
Judgment of The Honourable Justice Gray
2 August 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
Crown appeal against sentence imposed by magistrate – respondent pleaded guilty to escaping immigration detention, section 197A Migration Act 1958 (Cth) – magistrate discharged respondent without conviction upon his entry into a recognizance in the sum of $100 to be of good behaviour for two years – Crown appealed on grounds that magistrate: failed to give effect to the policy and purpose of section 197A of the Migration Act; paid insufficient regard to the seriousness of the offence; paid insufficient regard to the need for deterrence; and that the sentence imposed was manifestly inadequate.
Consideration of legislative scheme of Migration Act and seriousness of offence of escape immigration detention – consideration of circumstances of the offending – consideration of personal antecedents, including mental health, of respondent – discussion of section 18B of Crimes Act and the two-stage process.
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.
Held: appeal against sentence allowed – respondent convicted of the offence of escaping immigration detention – released immediately upon his entry into recognisance to be of good behaviour.
Migration Act 1958 (Cth) s 4, s 189, s 197A; Crimes Act 1914 (Cth) s 4J, 16A, 19B, referred to.
Morrison v Behrooz [2005] SASC 142; Shillabeer v Hussain [2005] SASC 198; Elder v Kakar [2005] SASC 222; Police v Kakar [2005] SASC 248; 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; R v Lowery (1992) 14 Cr App R 485; R v Briese [1998] 1 Qd R 487, considered.

WILLIAMS v GHORBAN
[2005] SASC 283
Magistrates Appeal
GRAY J:
Introduction

This is a Crown appeal against sentence.
On 1 December 2004 Bakhshi Bahambari Ghorban pleaded guilty to a charge of escaping immigration detention from the Baxter Immigration Detention Facility, South Australia, contrary to section 197A of the Migration Act 1958 (Cth). The escape occurred on 9 March 2003. Pursuant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading WILLIAMS v Ghorban

Details

AGLC: WILLIAMS v Ghorban [2005] SASC 283
Case: [2005] SASC 283
Decision Date: 2 August 2005

CaseChat Overview and Summary

The case of Williams v Ghorban involved an appeal by the Crown against the sentence imposed by a magistrate on the respondent, Ghorban, who had pleaded guilty to escaping from immigration detention under section 197A of the Migration Act 1958 (Cth). The magistrate had discharged Ghorban without a conviction after he entered into a recognizance of $100 to be of good behaviour for two years. The Crown appealed, arguing that the magistrate had failed to give effect to the purpose and policy of section 197A, had not paid sufficient regard to the seriousness of the offence, had not adequately considered the need for deterrence, and had imposed a manifestly inadequate sentence.

The court had to decide whether the magistrate's sentence was appropriate in light of the legislative scheme of the Migration Act, the seriousness of the offence of escaping immigration detention, and the need for general deterrence. The court considered the circumstances of the offending, which included an unwarranted attack on an employee at the Baxter Immigration Detention Facility, and the taking of a vehicle, which were aggravating circumstances. The court also took into account Ghorban's personal antecedents, including his mental health issues. The court held that the magistrate had erred in the sentencing process by not considering the legislative scheme of the Migration Act, the seriousness of the offence, and the need for general deterrence. The magistrate was obliged to undertake the two-stage process required by section 19B of the Crimes Act.

The court allowed the appeal against the sentence and re-sentenced Ghorban. The court held that the circumstances of Ghorban's escape were serious, and that it was inappropriate to proceed without conviction. The court considered the scheme of the Migration Act, the seriousness of the offending, the need for general deterrence, and Ghorban's personal antecedents in reaching its decision. The court concluded that Ghorban was to be convicted of the offence of escaping immigration detention and was to be released immediately upon his entry into a recognizance of $500 to be of good behaviour for three years.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The circumstances of Mr Ghorban’s escape are serious. The attack on the Baxter Immigration Detention Facility employee was unwarranted. This was an aggravating circumstance of the escape. Although the personal injury sustained has not left lasting damage, the employee concerned should not have been exposed to such an attack. The taking of the vehicle is also an aggravating feature of the escape. When these matters are weighed with those matters personal to Mr Ghorban, it is inappropriate to proceed without conviction.Conclusion The appeal is allowed for the purpose of setting aside the penalty imposed by the magistrate. Mr Ghorban is convicted and released forthwith upon his entry into a recognisance in the sum of $500 to be of good behaviour for three years pursuant to section 20(1)(a) of the Crimes Act.

Ratio Decidendi

Legal Principle Established

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