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 to section 19B of the Crimes Act 1914 (Cth), Mr Ghorban was released without conviction on his recognisance to be of good behaviour for 12 months.
Circumstances of the Offending
An agreed summary of facts recounted the circumstances of Mr Ghorban’s offending:
The defendant is Iranian and at the relevant time was a detainee at the Baxter Immigration Detention Facility.
It is alleged that [Mr Ghorban] and [another detainee] scaled the perimeter fence of the Baxter Immigration Detention Facility at about 11.45pm on 9/3/03. During the progress of the escape Detention Officer Abe Rautahi arrived at the scene in a four-wheel drive vehicle. He attempted to prevent the men from escaping. He held one of the men to the ground, but was pulled away from this man by the other detainee. The men then got into the four-wheel drive. Rautahi broke one of the windows of the car by throwing his radio at it. He then leaned into the car and held onto the man sitting in the drivers seat. The other detainee then got out of the car and kicked Rautahi. The two men then ran away. Rautahi sustained scratches and cuts to his hands, shoulders and bruising to his left arm as a result of attempting to prevent the escape.
Soon after the escape a detainee head count was undertaken at Baxter which showed [Mr Ghorban] and [the other detainee] were missing.
[Mr Ghorban] and [the other detainee] were sighted about 6am the following day walking along a street in Port Augusta. They were detained by SAPOL officers and taken to the Port Augusta Police Station where ACM detention officer Margaret Davis identified them.
Neither [the other detainee] or [Mr Ghorban] had permission to be outside the Baxter Immigration Detention Facility.
Personal Antecedents
Mr Ghorban was born on 9 April 1962 in Anzali, northern Iran. He received six years education whilst in Iran. He is not married and has no children. When in Iran, Mr Ghorban was employed as a carpenter and a general labourer.
Mr Ghorban experienced many traumatic events whilst in Iran. A friend was killed by the Imain Khomini government. His father was killed by security forces. Mr Ghorban’s partner was jailed by the Imain Khomini government for four years and has subsequently disappeared. Mr Ghorban is fearful that his partner was killed.
Before coming to Australia, Mr Ghorban lived in a small rural village in South Korea for three years. While in Korea he converted to Christianity. He was baptised. When he returned to Iran as a Christian, Mr Ghorban was incarcerated, physically beaten and psychologically tortured by government officials. Mr Ghorban fears that if he were to be returned to Iran he would be killed.
Mr Ghorban arrived in Australia on 7 October 2000. He applied for a visa upon his arrival. This application was rejected. During 2001, Mr Ghorban appealed to the Refugee Review Tribunal and then to the Federal Court. Both appeals were dismissed. Mr Ghorban appealed to the Full Federal Court in August 2001 and then to the High Court in February 2002. These appeals were also dismissed.
A psychological report complied by Mr Balfour, a psychologist, dated 1 December 2004 was before the magistrate at the time of sentencing. In this report, Mr Balfour concluded that there was no clinical evidence to suggest that Mr Ghorban suffered from a psychotic illness, intellectual disability, drug or alcohol abuse problems or a serious personality disorder. However, it was observed that he had suffered political and religious persecution in Iran and had led a chaotic and stressful life for many years. Mr Balfour reported that:
[Mr Ghorban’s] presentation and personal history are consistent with suffering from a major depressive illness and Post Traumatic Stress Disorder. His mental health problems have been exacerbated by the unique stressors associated with indeterminate detention.
…
I believe that he meets the legal definition of having a ‘mental illness’.
Mr Ghorban told Mr Balfour that he felt confused and frustrated by the visa application process and was continually concerned for the safety of his family in Iran. He experienced feelings of stress, disturbed sleep, poor appetite and had developed a stomach problem.
Proceedings before the Magistrate
Both parties had consented to the proceedings being dealt with summarily pursuant to section 4J of the Crimes Act.[1] As a result, Mr Ghorban was exposed to a maximum sentence of 12 months imprisonment.
[1] Section 4J of the Crimes Act 1914 (Cth) which relevantly provides
Mr Ghorban was sentenced together with others. In relation to Mr Ghorban, the magistrate delivered the following remarks:
Yesterday I received a great deal of material relating to matters at Woomera, and I was aware previously of remarks made by Justice Kirby in the High Court. I am particularly familiar with a report from Lyn Bender and some remarks from Glenda Koutroulis that relate particularly to the conditions at Woomera. I made some remarks yesterday that also included comment about the use of numbers to describe people, the practice that has been criticised elsewhere. Mr Shajaee [sic] and Mr Ghorban, I have seen the reports that have been prepared in relation to you, and I am grateful for the preparation of those reports by Mr Balfour. Mr Balfour refers in another document to reviewing eleven detainees at Baxter and his reports in other matters were tendered to me yesterday.
…
In the case of Mr Ghorban you have had considerable contact with citizens in the community, the extension to you of friendship from the community members will no doubt have been a great deal of help to you whilst you have been in detention and the members of the community who have extended that friendship are to be commended for it.
In each of the cases for you Mr Gormravi, Ghorban and Shajaee you have pleaded guilty and it is my view particularly in connection with you Mr Ghorban and you Mr Shajaee that given the material before me that relates particularly to your heath issues material that is accepted by the prosecutor, that in your cases it is appropriate to deal with you pursuant to Section 19B of the Crimes Act.
Accordingly for you Mr Ghorban and you Mr Shajaee, each of you will be discharged pursuant to Section 19B(1) without proceeding to a conviction; each of you to enter into a bond in the sum of $100 to be of good behaviour for 12 months.
These remarks suggest that the magistrate took into account material tendered by counsel for Mr Ghorban, related to general conditions of detention within Australia. However, the magistrate did not refer to the content of the material or identify its relevance to sentence.
Recently, this Court handed down reasons for its decision in the matters of Morrison v Behrooz,[2] Shillabeer v Hussain,[3] Elder v Kakar; Police v Kakar[4] and Boonstoppel v Hamidi.[5] Those matters involved factual and legal circumstances with similarities to those of the present case. Behrooz concerned a Crown appeal against a sentence imposed by a magistrate for an offence of escaping immigration detention. In Behrooz this Court considered, in some detail, the legislative scheme of the Migration Act.[6] Those observations are incorporated into these reasons for judgment.
[2] [2005] SASC 142.
[3] [2005] SASC 198.
[4] [2005] SASC 222.
[5] [2005] SASC 248.
[6] [2005] SASC 142 at [17]-[23].
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 increased penalty was designed to strengthen the deterrent effect of the sentence by equating the offence with an offence of escaping lawful custody. In Behrooz the court considered the case law dealing with escaping other forms of lawful custody.[7] It was concluded that the seriousness of an escape depends upon the circumstances and type of custody or detention. The sentence should, where possible, deter those in custody from escaping.[8] The protection of those charged with the care and control of those in detention is an important consideration.
[7] [2005] SASC 142 at [30]-[36]. See also R v Shepperbottom (2001) 212 LSJS 486; R v Knight (1986) 40 SASR 479.
[8] See for example R v Stokes [2001] NSWCCA 82; Bailey v Kupsch [1966] Tas R (NC 20).
The Appeal
The grounds of appeal advanced by counsel for the Crown 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 prosecution appeal against sentence may only be justified in the rare and exceptional case as it puts in jeopardy the liberty of an offender for a second time. The observations made in Behrooz in this respect are incorporated as part of these reasons.
The magistrate proceeded to sentence Mr Ghorban pursuant to section 19B of the Crimes Act. This section requires the sentencing authority to undertake a two-stage process: first, to ascertain whether one or more of the factors identified in section 19B(1)(b) exist and then second, to determine, if appropriate, that having regard to the factor or factors so identified, whether it is inexpedient to inflict any punishment or to reach one of the other conclusions for which section 19B provides. These issues are discussed fully in Behrooz.
The sentencing magistrate did not undertake the two-stage process required by section 19B and, as a result, the sentencing process miscarried. In particular, the magistrate did not address the legislative regime underlying the offence, the seriousness of the offence and the need for general and personal deterrence when proceeding pursuant to section 19B. The legislative scheme of which the offence of escaping immigration detention formed part was a relevant matter to consider when proceeding pursuant to section 19B.[9] The magistrate erred in the sentencing process. As a result, it is necessary for this Court to consider re-sentencing Mr Ghorban.
[9] Commissioner of Taxation v Baffsky (2001) 192 ALR 92.
Re-sentence
Mr Ghorban’s escape from Baxter Immigration Detention Facility involved an assault on an employee of the Facility charged with the care and control of detainees. This led to personal injury to the employee. Property damage was also caused by the escape. The offence cannot be described as trivial. It was an intentional act that constituted an escape from immigration detention. The offence also involved the “commandeering” of a vehicle.
Counsel for Mr Ghorban submitted that Mr Ghorban decided to escape immigration detention in response to information from DIMIA representatives that his visa application had been refused and that he would be forcibly returned to Iran. It was said that he and another detainee crafted insulated gloves from socks so that the electrified fence surrounding Baxter Immigration Detention Facility would not affect them. When Mr Ghorban and the other detainee had climbed the fence, a Baxter Immigration Detention Facility employee apprehended the other detainee. Counsel for Mr Ghorban submitted that the employee was holding the other detainee by the throat. Mr Ghorban came to the detainee’s assistance. It was said that it was in this way that the assault occurred. Both detainees then made their way from the Detention Facility towards Port Augusta. Police apprehended Mr Ghorban some six hours later in Port Augusta. Mr Ghorban had no apparent plan as to where he would go following his escape.
The circumstances of Mr Ghorban’s escape, in particular the altercation with the employee, highlight the need for the sentence imposed to address personal and general deterrence.
As observed in Behrooz, regard must be had to the public interest in the need to deter others from this type of offending. The policy of the Migration Act makes it clear that the detention of unlawful immigrants and the orderly operation of immigration detention centres constitutes a material consideration when sentencing for offending under section 197A of the Migration Act.
There is also a public interest in offenders, particularly offenders of otherwise good character, being successfully rehabilitated. When re-sentencing Mr Ghorban, it is appropriate to have regard to the effect the sentence may have on his future rehabilitation.
On the hearing of the appeal, counsel for the Crown accepted that the first stage of the section 19B process was satisfied. The discretion to proceed pursuant to section 19B was enlivened by Mr Ghorban’s character, his antecedents, cultural background, age and mental health. These factors should be considered along with all other relevant matters in deciding whether to exercise the enlivened discretion in favour of Mr Ghorban.
Other than the offending the subject of the present appeal, Mr Ghorban appears to be of good character. Numerous character references from members of the community were before the magistrate. One such reference included the following passage:
[Mr Ghorban] is a great favourite with the other residents at Baxter as well as the officers and visitors. He is a gentle man with a great sense of humour…
[Mr Ghorban] is absolutely no threat to the community outside of Baxter.
In my opinion [Mr Ghorban] would make a great citizen of Australia brining to our society his faith, his good humour, his gracious manner, his desire to work and to make a contribution.
Further material relevant to Mr Ghorban was placed before this Court. No objection was taken by the Crown to the receipt of this evidence.
Material before the Court suggests that while in detention Mr Ghorban participated positively in social activities and regularly attended education programs. Progress notes provided from Baxter Immigration Detention Facility indicate that while in detention, Mr Ghorban attended conversational English classes on a regular basis. He also attended a range of recreational activities.
From the medical evidence before the Court it is clear that Mr Ghorban found his situation in detention to be intolerable. While Mr Ghorban’s mental health history does not excuse his behaviour, it does provide an explanation for his conduct. It is noted that Mr Ghorban experienced feelings of frustration surrounding his visa application process and continued to suffer depression.
Mr Ghorban was released from the Baxter Immigration Detention Facility on 1 December 2004 following his successful application for a visa. He now resides in Queensland. He appears to have a large support network within the Australian community. These are relevant matters to be considered when sentencing and suggest that Mr Ghorban would be a good candidate for rehabilitation.
When re-sentencing regard must be had to the seriousness of the offending and the need to recognise the importance of deterrence in sentencing offending of this kind. However, Mr Ghorban’s personal circumstances, in particular the traumatic experiences endured whilst in Iran, his good character and positive prospects for rehabilitation, give rise to the need to take a merciful approach to re-sentencing.
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.

(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.