Semrad v Habiburahman  NTCA 06
PARTIES: SEMRAD, Monica
TITLE OF COURT: COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO: AP 15 of 2012 (21203102)
DELIVERED: 7 June 2013
HEARING DATES: 30 May 2013
JUDGMENT OF: RILEY CJ, BARR and HILEY JJ
APPEALED FROM: SOUTHWOOD J (in proceeding
nos 41 and 43 of 2012)
CRIMINAL LAW — Sentencing — Federal offences — Discretion not to record conviction where it is ‘inexpedient to inflict any punishment’ — Offence committed under ‘extenuating circumstances’ — Crimes Act 1914 (Cth) s 19B(1)(b).
CRIMINAL LAW — Sentencing — Crown appeal — Manifest inadequacy — Conviction — Discharge without conviction — Discretion not to impose conviction will only be interfered with if error demonstrated — Crimes Act 1914 (Cth) s 19B(1)(b).
Appellant: G R Rice SC
Respondent: S J Cox QC with K E Roussos
Appellant: Commonwealth Director of Public Prosecutions
Respondent: Northern Territory Legal Aid Commission
Judgment category classification: B
Judgment ID Number: Ril1305
Number of pages: 17
IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
Semrad v Habiburahman  NTCA 06
CORAM: Riley CJ, Barr and Hiley JJ
REASONS FOR JUDGMENT
(Delivered 7 June 2013)
 This is a Crown appeal against sentence.
 On 8 June 2012, following a trial in the Court of Summary Jurisdiction, the respondent was found guilty of engaging in conduct which caused harm to a Commonwealth public official. Further, on 15 June 2012, he pleaded guilty to having caused damage to property belonging to the Commonwealth. On 18 June 2012 he was convicted and sentenced to imprisonment for a period of three months in relation to the offence of causing harm. The sentence was suspended forthwith upon him giving security by recognisance in the sum of $1000 to be of good behaviour for 12 months. In relation to the crime of causing damage to property belonging to the Commonwealth, he was convicted and released on a $1000 bond to be of good behaviour for a period of 12 months.
 The respondent appealed to the Supreme Court against the sentences on various grounds including that the sentences were manifestly excessive. The judge noted that:
The appellant's primary object is to try and correct what he says was a failure of the presiding magistrate to exercise his discretion under s 19B(1) of the Crimes Act 1914 (Cth) not to record a conviction against him because his convictions may result in the Minister for Immigration refusing to issue him a visa.
 The appeal in relation to the sentence imposed for causing damage to property belonging to the Commonwealth was dismissed. The conviction for that offence was not disturbed. The appeal in relation to the sentence imposed for the crime of causing harm to a Commonwealth public official was allowed and the conviction and the sentence of imprisonment for three months were set aside. The judge then resentenced the respondent in relation to that matter by discharging him without proceeding to conviction upon him giving security to be of good behaviour for a period of 12 months.
 The appellant, who was the complainant in the proceedings below, appeals against this decision primarily on the basis that the sentence imposed by the learned judge was manifestly inadequate.
 For the purposes of this appeal the parties agreed the following matters:
(a) The respondent is a 33-year-old Burmese refugee who had been in immigration detention under the Migration Act 1958 (Cth) since his arrival at Christmas Island on 28 December 2009 until the time of the offending the subject of this appeal.
(b) In May 2010, the Department of Immigration and Citizenship assessed the respondent and determined that he was a genuine refugee. However, he remained in detention while the Australian Security Intelligence Organisation completed a security check. The security check was completed in December 2011 when it was determined that the respondent was not a security risk.
(c) While refugees are in detention they are subject to welfare checks. Welfare checks are undertaken three to four times a day to ensure that detainees remain in detention and are being cared for appropriately. They are also undertaken after there have been rooftop protests or demonstrations. A welfare check after a rooftop protest involves SERCO employees entering the rooms of detainees and speaking to them to ensure that they are off the roof, safe and unharmed. They also involve an assessment of a detainee’s mental state. The respondent was familiar with such checks.
(d) On 12 August 2011 the respondent participated in a rooftop protest at the Northern Immigration Detention Centre in Darwin where he was detained. The protest was about the length of detention of refugees. During the course of the protest the respondent climbed up onto the roof of one of the buildings where he remained for about five hours. After he came off the roof he went to sleep in the room that he had been allocated.
(e) After the respondent went to sleep, a welfare check was conducted by Mr Paul Green, a SERCO employee. Mr Green was a Commonwealth public official. He conducted the welfare check quietly and respectfully because it was night time and efforts were made not to disturb people if they were asleep. Mr Green walked into the appellant’s room which was dark. There appeared to be a person asleep with a cover over his head on a bottom bunk in the room and it looked like another person occupied the top bunk. A light was on in the bathroom so Mr Green walked to the bathroom to see if anybody was in the bathroom. He knocked quietly on the bathroom door before he checked the bathroom. There was nobody in the bathroom.
(f) After he checked the bathroom, Mr Green turned and saw the respondent was out of his bunk and standing directly in front of him. He asked the respondent if he was Mr Habib and if he had come down off the roof. Mr Habib responded by screaming, ‘get out of my room!’ Mr Green again asked the respondent if he was Mr Habib and if he had come down from the roof. The respondent pointed at Mr Green’s face and again screamed, ‘get out of my room’. Mr Green put his hands up in a peaceful stance in response to the respondent pointing and shouting at him aggressively. The respondent then hit him, at least twice, in the face. There was then a scuffle in the room which involved another detainee and a number of SERCO employees who had come to Mr Green’s assistance. During the scuffle the other detainee hit Mr Green on the chest. Ultimately, both the respondent and the other detainee were restrained.
(g) Mr Green was injured and he was taken to hospital. He sustained superficial lacerations to his left ear and bruising to his left face. That is, bruising to the posterior auricular region and some mandible tenderness but no mastoid tenderness. These injuries were consistent with Mr Green being hit or punched by the respondent. Mr Green also suffered a bite wound and bruising to his left upper chest. These injuries were caused by the other detainee biting Mr Green.
 Although not part of the agreed facts, the appellant submitted that Mr Green lost consciousness as a result of the assault. It was submitted that the loss of consciousness reflected the seriousness of the assault and was a matter to be taken into account in determining an appropriate sentence. Neither the magistrate at first instance nor the judge on appeal made a finding that Mr Green lost consciousness. Nevertheless, this Court is invited to make that finding.
 At the trial in the Court of Summary Jurisdiction Mr Green did not, in his evidence-in-chief, give evidence that he lost consciousness. The first mention of losing consciousness arose during cross-examination when he was asked whether he lost consciousness and he said ‘it appears I did, yes.’ He said, ‘it wasn't until I had to write a report that I realised I did actually lose consciousness’. He accepted that he had said in his witness statement that he could not recall losing consciousness and, further, when asked by the doctor at the time whether he had lost consciousness, he had responded that he ‘did not know’.
 The evidence of the two SERCO witnesses who were present at the time, Ms Robertson and Ms Bingham, was not placed before this Court. The reference by the magistrate to the evidence of those witnesses recorded Ms Robertson as saying that she saw Mr Green ‘stumble backwards or something to that effect’ and Ms Bingham only referred to the fact that Mr Green was struck in the ‘head area’. There was no suggestion in the references to the evidence of either witness that they had observed any loss of consciousness or, indeed, Mr Green falling to the ground. On the information available to us we are unable to find to the requisite standard that Mr Green did lose consciousness.
 It is convenient to deal with all of the grounds of appeal together. They were ultimately all directed to the submission that, in the circumstances of the case, it was not inexpedient to inflict any punishment other than a nominal punishment and, to similar effect, the sentence imposed by his Honour was manifestly inadequate.
 There was no ground 1 in the notice of appeal. The remaining grounds of appeal were as follows:
Ground 2: His Honour erred in finding that the learned magistrate erred in the exercise of his sentencing discretion and in determining that appellate intervention was appropriate.
Ground 3: The sentence imposed by his Honour is manifestly inadequate.
Ground 4: His Honour erred in concluding that the punishment imposed by the learned magistrate was not proportional to the objective seriousness of the offence.
Ground 5: His Honour erred in finding that there were extenuating circumstances sufficient to justify releasing the respondent without proceeding to conviction pursuant to s19B of the Crimes Act (Cth).
Ground 6: His Honour gave too much weight to the personal circumstances of the respondent and too little weight to the seriousness of the offence.
Ground 7: His Honour erred in finding that extenuating circumstances outweighed the respondent’s lack of contrition.
 The focus of the appeal was the application of s 19B(1)(b) of the Crimes Act 1914 (Cth). Pursuant to that provision a court has the power to discharge a person without proceeding to conviction. The section is in the following terms:
(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;
(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;
(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 ...
 As was observed by Spigelman CJ in Federal Commissioner of Taxation v Baffsky:
Section 19B(1)(b) itself contains two stages. First is the identification of a factor or factors of the character specified in subparas (i), (ii) and/or (iii) of the paragraph. The second stage is the determination that, having regard to the factor or factors so identified, it ‘is inexpedient to inflict any punishment’ or to reach the other conclusions which the paragraph provides.
 The learned magistrate found that the discretion contained in s 19B had been enlivened by reference to the character, antecedents and age of the respondent. However, his Honour did not accept that ‘extenuating circumstances’ had been demonstrated. The appellant conceded in this appeal that the magistrate erred in this regard. In light of that concession the question for the judge was whether it was inexpedient to inflict any punishment or to inflict any punishment other than a nominal punishment. His Honour determined that to be the case and proceeded to discharge the respondent without proceeding to conviction upon him giving security by recognisance in the sum of $1000 to be of good behaviour for a period of 12 months.
 It was submitted on behalf of the appellant that the judge should not have interfered with the sentence and should have dismissed the appeal because the sentence imposed by the magistrate was, notwithstanding the identified error, the appropriate sentence. It was argued that in the circumstances it was not inexpedient to inflict punishment other than a nominal punishment.
 Once error on the part of the presiding magistrate had been established, the judge on appeal was entitled to consider the operation of s 19B(1)(b) of the Crimes Act 1914 (Cth) for himself and, if the provision had application, exercise the sentencing discretion under the relevant provisions of the Crimes Act 1914 (Cth).
 The judge conducted a detailed review of the evidence and concluded that there was evidence of both extenuating circumstances and the requisite link between the extenuating circumstances and the offence committed by the appellant.
 His Honour provided a history of the respondent. He is a member of the Rohingyan ethnic group from the State of Arkan in Burma. The group has been the subject of ‘severe discrimination and persecution’ and many of his people have fled from Burma. The respondent's family home was demolished twice by the Burmese authorities. His father and two of his siblings were detained by the authorities and his father died in detention in 2008. The family decided he should leave Burma and, in 2007, he travelled to Thailand and then to refugee camps in Malaysia. Whilst in detention in Malaysia he was sold by corrupt officials to the owner of a Thai fishing boat and forced to work there for eight months before he was able to escape. He then stayed in other refugee camps in Malaysia and eventually saved sufficient money to pay to travel to Indonesia and then on to Christmas Island. He applied for protection as a refugee and was found to be a refugee and not to be a security risk. He is seeking a visa to enable him to remain in Australia.
 The evidence before the sentencing magistrate was that the respondent had been in detention since December 2009. After he had been found to be a refugee he was kept in detention for a further 19 months whilst necessary security checks were undertaken. References provided to the court by people associated with the respondent during his period of detention reveal that he suffered traumatic experiences including physically saving a person from hanging himself and assisting others who were experiencing suicidal ideation. He was anxious about his family in Burma. He was experiencing escalating distress and anguish due to his experiences in detention. The witnesses expressed the view that the actions of the respondent were out of character and that he was a gentle man.
 His Honour noted that the respondent had suffered a significant deterioration in his mental function as a result of the length of his detention and his experiences in detention. Before the incident he had participated in a rooftop protest which had lasted five hours and then had his sleep interrupted by the intrusion of the Commonwealth official. He lost his temper and assaulted the victim. In support of these conclusions the judge referred to the following:
(a) the respondent had been in detention since December 2009;
(b) he had been found to be a refugee but was kept in detention for a further 19 months while necessary security checks were undertaken;
(c) he witnessed an attempted suicide and he helped other people who were experiencing suicidal ideation;
(d) he was anxious about the well-being of his family in Burma; and
(e) the observations of a Red Cross observer were that the respondent was experiencing: escalating distress and anguish; a deterioration of judgment, reasoning and awareness; and that the length of his detention and his experiences in detention had caused significant deterioration in his function.
 It is also to be borne in mind that the respondent had been in custody for four days and in detention for an extra seven months solely as a consequence of the charges against him. But for those charges, he would have been released into the community during that period.
 His Honour concluded:
There is a fair inference that at the time the [respondent] committed these offences he was suffering impaired judgment, reasoning and awareness and that his deterioration in function was such that it tended to lessen his culpability for the crime of caus[ing] harm to a Commonwealth public official. His mental state excused to some degree the commission of that crime.
 The view formed by his Honour was that the offence was towards the lower end of the range for such offences. The offence occurred on the spur of the moment and at a time when the respondent’s emotions were likely to have still been high. It was not a sustained assault and the force used was of a low level. The victim suffered minor harm.
 His Honour did not overlook the fact that the victim was acting in the course of his normal duties and the respondent must have been aware that it was a requirement of the detention centre that a welfare check be conducted at the time. His Honour also took into account the ‘intransigence and apparent lack of remorse’ of the respondent. The judge had regard to the principle of proportionality and referred to the judgment in Hoare v The Queen where it was said:
... a basic principle of sentencing law is that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances.
 His Honour concluded that a sentence of imprisonment for a period of three months was not proportionate to the objective seriousness of the offence that was committed and, in the exercise of the sentencing discretion, went on to discharge the respondent without proceeding to conviction whilst imposing a 12 month good behaviour bond. The appellant submitted that his Honour was in error in so doing.
 There is no challenge to the conclusion of his Honour that the mental state of the respondent excused to some degree the commission of the crime. However, the submission of the appellant was that the offending was not committed under such extenuating circumstances as to justify the conclusion that it was inexpedient to inflict any punishment or to inflict any punishment other than a nominal punishment. It was argued that his Honour based his decision upon a consideration of the personal circumstances of the respondent without sufficiently considering the objective seriousness of the assault. It was submitted that his Honour formed an unduly lenient view in this regard. It was further submitted that he made an ‘overly favourable’ finding concerning the character of the respondent and that his Honour did not give sufficient consideration to general deterrence.
 In support of the submission that the offending was objectively serious it was noted that the victim had done nothing to provoke the attack other than to carry out his routine duties. The victim had adopted a conciliatory and non-threatening pose to diffuse the situation and, in so doing, had rendered himself vulnerable to the attack that followed. The attack occurred without warning and involved blows to the head. Fellow SERCO employees were required to come to the assistance of the victim. It was submitted this was a ‘cowardly attack on a defenceless victim’.
 The appellant submitted that the severity of the attack could be measured by the fact that Mr Green was rendered unconscious or, at least, knocked to the ground. We have not been able to find that Mr Green was rendered unconscious. It seems he lost his balance and may have fallen to the ground. The injuries he suffered were described as superficial lacerations to his left ear and bruising to his left face with some tenderness. The judge described the victim as suffering ‘minor harm’, reflecting the description of the injuries. The delivery of a blow to the head is almost always a dangerous act. However, in this case, the consequences for the victim were not significant.
 The appellant challenged the description of the offending provided by his Honour. It was submitted that there was no evidence to support the conclusion that the emotions of the respondent were still ‘high’ at the relevant time. To the contrary, the respondent had been involved in a protest over issues significant to him lasting five hours and had then returned to his room to sleep. He was awoken by the entry of Mr Green in circumstances that immediately led to the confrontation. In our opinion there was ample justification for concluding that the emotions of the respondent would be high. The appellant also challenged the conclusions of his Honour that the degree of force used was of a low level and that this was not a sustained assault. Such descriptions are relative and reflect matters of degree about which views may differ. In our opinion, there was a basis for reaching the conclusions that a low level of force was used and that the assault was not a sustained assault.
 The appellant has not established that the judge was mistaken or that he failed to take into account any material facts.
Manifest inadequacy and the failure to record a conviction
 The recording of a conviction is ‘a formal and solemn act marking the court’s, and society’s, disapproval of a defendant’s wrongdoing’. The recording of a conviction is a component of the sentence and is accorded weight in considering whether or not the sentence is proportionate to the offence.
 In relation to s 4(1) of the Offenders Probation Act 1913 (SA), a provision analogous to s 19B(1) of the Crimes Act 1914 (Cth), King CJ said in Jones v Morley:
Two conditions must exist before any discretionary powers conferred by the section to arise. First, there must be some mitigating aspect arising from one or more of the matters mentioned in the section, which would ‘provide a sufficient ground for a reasonable man to hold that it would be expedient to extend the leniency which the statute permits’: Cobiac v Liddy, per Windeyer J at p 276. Second, the Court must actually form the opinion required by the section, namely that having regard to one or more of the matters mentioned in the section it is expedient to exercise the powers conferred by that section: Reg v Wilton. Once the discretion arises, its exercise is for the sentencing court. The exercise of the discretion will be interfered with by an appellate court only when there has been a wrong exercise of discretion on the well settled principles, that is to say when the court has acted on a wrong principle or on some misapprehension of the facts or when it has failed to have regard to a relevant consideration or has had regard to an extraneous consideration: Uznabnski v Searle.
 His Honour having found error and there being no challenge to that finding, it follows that the sentence imposed was open to reconsideration. The decision whether to exercise his discretion to interfere rested with the sentencing judge. The issue to be resolved on appeal is whether, in so doing, his Honour fell into error. This Court will only interfere if there is some reason for holding that the discretion conferred was improperly exercised.
 The issue is not whether this Court would have taken the course adopted by his Honour. In an oft-quoted passage Windeyer J said in Cobiac v Liddy:
The question is not what we would do, but what could he lawfully do. The discretion was his. He could exercise it as he thought expedient, provided that in the circumstances it was open to him to exercise it at all.
 It is apparent that opinions may differ as to the strength of the extenuating circumstances identified in a particular case, including this case. The judge placed significant weight upon those extenuating circumstances in determining not to record a conviction. He gave particular weight to the fact that the respondent was in a distressed and anxious state and suffering from impaired judgment at the time of the offending. Although the respondent’s conduct was unacceptable, it arose out of circumstances where the accumulation of concerns regarding his own situation and that of others over a long period of time impacted upon his thought processes leading him to act in a way which was quite out of character. In so concluding, his Honour canvassed all of the relevant considerations including the personal circumstances of the respondent and the objective features of the particular offence. In our opinion the reasons for decision identified a justifiable basis for a decision not to record a conviction. It cannot be said that ‘the sentence imposed … is so far outside the range of sentences available that there must have been error’. We see no error on the part of the judge.
 We dismiss the appeal.
 Habib Urahman v Semrad  NTSC 95 at .
 (2001) 192 ALR 92 at 96 .
 See Commissioner of Taxation v Baffsky (2001) 192 ALR 92 at 102 
 Habib Urahman v Semrad  NTSC 95 at .
 Ibid at .
 (1989) 167 CLR 348 at 354 (emphasis in original).
 Crimes Act 1914 (Cth) s 19B(1)(b).
 House v The King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ.
 R v McInerney (1986) 42 SASR 111 at 124 per Cox J.
 Carnese v The Queen  NTCCA 8 at ; Lanham v Brake (1983) 34 SASR 578 at 585. See generally, R G Fox and A Frieberg, Sentencing: State and Federal law in Victoria, 2nd ed at 190–193.
 (1981) 29 SASR 57 at 63.
 (1969) 119 CLR 257.
 (1981) 28 SASR 362.
 (1981) 26 SASR 388.
 (1969) 119 CLR 257 at 275; see also Toohey v Peach (2003) 141 A Crim R 437.
 Cf Markarian v The Queen (2005) 228 CLR 357 at 371  per Gleeson CJ, Gummow, Hayne and Callinan JJ.
 R v Jones (2010) 76 ATR 249 at 261  quoted on appeal in Hili v The Queen (2010) 242 CLR 520 at 539  per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.