R v Miranda

COUNSEL : Applicant in person Mr CP O'Donnell- Crown/Respondent SOLICITORS : Commonwealth Director of Public Prosecutions- Crown/Respondent CATCHWORDS : Leave to appeal against severity - False migration documents - Misreading antecedents - Sentence manifestly excessive - Medical condition harder on applicant Crimes Act 1900 LEGISLATION CITED : Crimes Act 1914 (Cth) Migration Act 1958 (Cth) DPP v El Karhani (1990) 21 NSWLR 390. R v Engert (1995) 84 A Crim R 67. CASES CITED: R v L (Unreported, NSWCCA, 17 June 1996). R v Smith (1987) 44 SASR 587. R v Sopher (1993) 70 A Crim R 570. R v Thompson (2000) 49 NSWLR 383. DECISION : 1. Leave granted; 2. Appeal upheld; 3. Sentences imposed by Shadbolt DCJ quashed; 3. On the offences unders 281 of the Act, applicant sentenced to three years imprisonment to commence on 14 March 2001 to expire 13 March 2004. Applicant released on 14 March 2003, upon entering a recognisance pursuant to s20(1)(B) of the Crimes Act 1914, to be of good behaviour for one year, and to appear to receive sentence in respect of any breach within the said period; and 4. On matters under s234 of the Migration Act, sentenced to a period of ten months, to be served concurrently with the offences under s281.

60384/01 SHELLER JA DOWD J KIRBY J

1 SHELLER JA: I agree with Dowd J. 2 DOWD J: The applicant, Abelardo Miranda, sought leave to appeal against the sentence imposed upon him by Shadbolt DCJ on 25 May 2001 in the Sydney District Court. The applicant had pleaded guilty to sixteen offences under s281 of the Migration Act 1958 (Cth) ('the Act'), and one offence under s234 of the Act. The maximum penalty for the s281 offence is ten years imprisonment, and the maximum penalty for the s234 offence is two years imprisonment. In respect of the first count, His Honour took into account on a form under 16BA of the Crimes Act 1914 (Cth), two offences under s281 and two offences under s234 of the Act. 3 On 25 May 2001, the applicant was sentenced to three years imprisonment on the sixteen matters under s281 of the Act, commencing on 14 March 2001 and to expire on 13 March 2004. For the conviction under s234 of the Act, His Honour imposed a cumulative sentence, commencing on 14 March 2004 and to expire on 13 January 2005, with a total non-parole period of two years and six months, to expire on 13 September 2003. 4 The sentence imposed took into account two months and eleven days that the applicant had spent in custody in broken periods. The sentence imposed on count one took into account the four matters that the applicant asked to be taken into account on sentence pursuant to s16BA of the Crimes Act (Cth) 1914.

Facts 5 The applicant carried out activities as a Migration Agent during the period between 1995 and July 1998, under the guise of being an Associate of the firm of solicitors, Davidson James and Associates. He carried on this business from an office at Suite 13/301 Castlereagh Street, Sydney. At no time was the applicant licensed to practise as a Migration Agent. The applicant had approached Mr Davidson James offering to bring him clients who were in need of legal advice concerning immigration matters, such persons having been clients of another solicitor in the Parramatta area who was no longer in practice. 6 Mr James had agreed to the arrangements on the basis that such clients were referred to him so that he could assess whether he could assist them in their applications, and if so, that the applicant would obtain for those clients any necessary documentation required by the Department of Immigration and Multicultural affairs (DIMA). Mr James provided the applicant with stationary for the purpose of this business. 7 During the business relationship, the applicant referred some clients to Mr James, and he made applications for many others, requesting visas that these applicants neither wanted, nor applied for. He made "protection" visa applications with DIMA for these clients, usually by including a false statement as to their persecution at the hands of authorities in their respective countries of origin. These accounts were mostly completely untrue, and given without instruction or information by the person seeking to migrate. The applicant received large amounts of money from these clients during the period of engagement in these offences. 8 The applicant had employed a number of staff to work in his office who would complete the various migration department forms on behalf of the various people who had come to the applicant for assistance. 9 On 25 July 1997, a letter was sent by Mr James to the applicant and his staff, that it had come to his attention that immigration work had been carried out in which stationary and stamps of Davidson James & Associates were being used. 10 I will not set out the complex and detailed facts in respect of each of the charges, but will cite the facts in count one to illustrate the type of conduct in which the applicant was involved. 11 A Filipina national, Yolanda Itable, arrived in Australia in 1990 on a three months visitor's visa. Itable was told by the applicant's sister that the applicant could help her obtain a bridging visa. She went to the applicant's office and was told by the applicant that she should apply for a bridging visa, and after six months lodge an application on de facto grounds. Itable was told that her fee was $1500.00 and that she was to complete parts of application forms and leave her passport. The applicant's secretary received $500 and a receipt was issued. Itable saw the applicant write in certain information in the application form, the rest was signed in blank. She paid a further $1,000.00. 12 In the application is a colourful tale of the reason why she left the country, none of which was true, and none of which she gave to the applicant. The applicant alleged that the account was fabricated by her and her sister. The applicant said that all money went to Davidson James and the application was stamped by a stamp given to him by Mr James. This latter fact was denied by Mr James, and he denied receiving any money in relation to this or in any other case. Mr James was cross-examined before the Learned Sentencing Judge who did not disbelieve him. 13 The purpose of setting out the above was to illustrate the nature of the actions of the applicant for the purposes of this judgment. Judge Shadbolt set out his findings in respect of each of the charges as a result of the evidence taken before him on sentence, in his judgment of 9 May 2001, which preceded the Sentence Judgment, the subject of this appeal. 14 The ingredients of the counts of s281 of the Act are that the applicant gave immigration assistance, and that he received a fee for such services although he was not registered as a Migration Agent under the Act. The ingredients of the offences under s234(1)(C) of the Act are that the applicant caused the document to be delivered to an officer of the Department, that document containing information that was false in a material particular, and that he did so in connection with an application for a visa permitting a non-citizen to remain in Australia. 15 At page 3 of the Remarks on Sentence, Shadbolt DCJ stated that the applicant would never have been eligible to hold a licence to practice as a Migration Agent under s290 of the Act, in light of his past criminal history. 16 The applicant pleaded guilty some days prior to going to trial and pleaded guilty to sixteen charges in breach of s281 of the Act, which involved asking for or receiving a fee for giving immigration assistance when he was not a registered Migration Agent under the Act, and one offence under s234 of the Act of causing a document to be delivered to an officer of the DIMA, that document being false in a material particular. 17 The applicant was originally charged on 16 March 1998 with these offences as a result of an investigation carried out by the DIMA. On 11 June 1998, he was committed for trial on sixty-nine charges under various provisions of the Act. The applicant at this time had been on conditional bail, and on this date it was revoked by the Magistrate as a result of evidence before His Worship, that being that the applicant had breached the conditions of his bail having committed further similar offences. The applicant was charged that between the period of 1 March 1996 and 16 June, he committed offences contrary to the Act, some committed whilst on bail. 18 On 16 July 1998, the applicant was granted bail and remained on bail until 19 April 2001. The applicant was not required to report during bail for lengthy periods, to accommodate the applicant's ongoing medical treatment and assessment. 19 The applicant was also charged with a third group of offences committed between February 2000 and July 2000 and another on 3 April 2001, with uttering false documents in breach of s67(b) of the Crimes Act 1900. Bail was initially refused, as the offences were committed again while the applicant was on bail for the above offences. However, after review of the applicant's medical status, bail was granted. The applicant has pleaded guilty but has not yet been sentenced for these offences, and as such the submissions made by the applicant in relation to these offences will be ignored in these proceedings, as they are irrelevant.

Submissions 20 The applicant submitted that the Learned Sentencing Judge made errors in the applicant's criminal history, fed to him, the applicant suggested, deliberately by the Crown, to such an extent that it resulted in prejudice. The applicant submitted that the sentencing process was fundamentally flawed because of errors made by Shadbolt DCJ in reciting the applicant's criminal history, to the extent that the applicant was made to look "like a serial criminal, no hope in life or not to fit to integrate in the society". 21 The Court notes that errors were made by the Learned Sentencing Judge in relation to the applicant's criminal history. This fact is also conceded by the Crown. They are listed as follows: · The applicant was not convicted in 1979 and 1980 as found by His Honour for larceny as a clerk but convicted just once in 1980. · The applicant was charged and convicted of making a false entry in 1984 only, not 1982 and 1984 as suggested by the Learned Sentencing Judge. · The applicant was charged and convicted of defrauding tax returns only once in 1995 and not twice in 1993 and 1995 as stated by Shadbolt DCJ. 22 In examining the criminal antecedents which are somewhat obscurely reproduced, it is my view that whilst the Court accepts the errors made by the Learned Sentencing Judge and the obvious concern this would create for the applicant, the errors were caused by simple misreading of the police records, on the part of Shadbolt DCJ. 23 In light of the offences to which the applicant stood for sentence and the matters taken into account in the list of errors included in the long criminal history, the above matters would not have been such as to be mistakes which might constitute error warranting intervention by this Court, but for the fact that the Learned Sentencing Judge set the offences out in some detail and emphasised in respect of the first offence that it was a third appearance for the same crime, and in respect of defrauding the Commonwealth matters emphasised that it was a repeat offence. His Honour, in characterising the record as extensive and being a long record for dishonesty, particularly stated that the record was such as not to permit the Court to extend to the applicant any leniency. 24 I consider that the accumulation of offences inadvertently included as part of the prisoner's record as conceded by the Crown does constitute error on His Honour's part in taking into account factors which ought not to have been taken so included. 25 The applicant submitted that the Learned Sentencing Judge completely ignored the effect his sentence would have upon the life of his family who depended upon him for support, both financial and emotional. The Crown submitted that these factors are relevant to every father and breadwinner sentenced to a period in prison. 26 Shadbolt DCJ in his Remarks on Sentence at page 4 made the following remarks, as required by s16A(2) of the Crimes Act 1914: "These sentences will no doubt disturb his family but there is no evidence that it will do so more than any other family placed in such a position, is disturbed". 27 It is my opinion, there is no error on the part of the Learned Sentencing Judge in relation to that submission. Shadbolt DCJ has appropriately acknowledged the issues concerning the applicant's family, and I respectively concur with his reasoning. 28 The applicant submitted that the Learned Sentencing Judge ignored the significance of his professional standing and his good character in the sentencing process: "He mentioned my good standing in the community and the voluntary work I'd done for charitable organisations like the Sydney City Mission but gave no importance". The applicant also complained of the effect that prison would have on his business. 29 The Learned Sentencing Judge had the following comments to make concerning the good standing the applicant had in the community, and his contribution to charitable organisations at page 2 of his Remarks on Sentence: "However, these offences all strike at the heart of the legislation which was designed to protect persons often having imperfect English and no knowledge of their entitlements from unscrupulous operators like the prisoner. These offences are aggravated by the outrageous sums of money he took from the people and the jeopardy he placed them in by concocting accounts of their troubles in their countries of origin and in at least one count coercing the innocent applicant to adopt these lies". 30 The sentencing process is not a rigid two-step process, producing an artificial dichotomy between the subjective and objective features relevant to the offence. The applicant is incorrect in his expectation that the sentencing process should artificially separate the subjective and objective features of the offence. Shadbolt DCJ appropriately took into account all the required matters under ss16A to G and s17 of the Crimes Act into consideration. His approach is in line with many authorities on this matter: R v Thompson (2000) 49 NSWLR 383. Wood J in R v Engert (1995) 84 A Crim R 67 held: "It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in light of the purposes to be served by the sentencing exercise". 31 I consider that His Honour appropriately took into account the applicant's character and the consequence of imprisonment on his business, and I do not consider there to be any error in that respect in His Honours Remarks on Sentence. 32 This brings me to the final submission, that concerning the applicant's health. In his Remarks on Sentence, the Learned Sentencing Judge said: "Miranda has recently undergone surgery for bowel cancer. This was undoubtedly both worrying and painful for him. The history of this is set out in exhibit 1. That however, has now concluded, but has left him with postoperative functional problems set out in Dr Ctercteko's report at page 4. Whilst I do not wish to be dismissive of his problems, they do not appear to be life threatening nor life-shortening. This is not the type of case, as in R v L but one where the prisoner will suffer discomfort and perhaps embarrassment from time to time. There is nothing before me which would indicate that he was unable to subscribe to prison discipline. The prison authorities are aware of his condition. He will be able to receive post operative management either within the prison or at Prince Henry Hospital. I am not of the view that the facts of his particular case come within the criteria of R v Smith or, in so far as they differ, R v L ".

33 The Crown submitted that the applicant's health and prognosis were clearly before the Learned Sentencing Judge. This was evidenced in His Honour adjourning the applicant's case for a period of twelve months, to afford the applicant time to adequately recover from his surgery. It was submitted that His Honour had appropriate regard to these matters in the sentencing process. 34 The Crown submitted that the applicant's reliance of R v L (Unreported, NSWCCA, 17 June 1996) and R v Smith (1987) 44 SASR 587 was misconceived. The Crown submitted that the highest evidence on the issue of the applicant's health before Shadbolt DCJ, was set out in Exhibit 1, Dr Ctercteko's medical report. 35 The Crown relied on this Court's decision in R v L in relation to evidence before the Learned Sentencing Judge: "A court cannot determine the bearing which an offender's illness might have upon sentence in the absence of adequate evidence as to the nature and extent of the illness and, where appropriate, its effect upon the offender's incarceration". 36 The Crown submitted that there was no evidence before His Honour nor before this Court, which would suggest that the applicant's medical condition cannot be adequately managed within the prison system. 37 The matter before this Court is not only whether the prison system can manage the applicant's health problems, which it probably can, but also one of whether prison life for the applicant, by reason of his condition, is likely to be significantly harsher. This is the fundamental principle. The state of the applicant's health is always relevant to the consideration of appropriate sentencing, as set out by King CJ in Smith. As well as these risks however, the realities of prison life should not be overlooked in the sentencing discretion. 38 With the inevitable rigidity of the prison system, the need to deal with bowel movements and the extreme embarrassment, not just on an intermittent basis, but on a constant basis over the whole of the period, will make the applicant's life very difficult indeed. 39 There is no doubt that from the evidence supplied, that life in prison would be harsher for the applicant. There was one report before His Honour of Dr Ctercteko (Exhibit 1) which opined: "This type of surgery where the rectum is removed and a colonic pouch is created and joined to the anus, is often followed by imperfect functional results. It is not uncommon for patients in this circumstance to have up to half a dozen small or incomplete bowel movements a day with an associated sensation of incomplete emptying. However, Mr Miranda's functional results have been much worse than normal".

The report concluded on the effects of incarceration upon the applicant: "The major problem I would see is this unresolved functional bowel problem. I would imagine that he could be released at regular intervals for surveillance consultations and colonoscopies but the situation of having 15-20 bowel movements per day with no control over the timing of these bowel movements may not be easily reconciled with what I would imagine to be a relatively regimented system in gaol". 40 The Learned Sentencing Judge did not appropriately allow for the fact that the applicant's medical condition would make life difficult for the applicant in prison. The fact that the condition may not be as serious such as that identified in Smith, and would not be life threatening, is not an appropriate way to take into account the applicant's problems. I am of the opinion that the medical report provided by Dr Ctercteko provides ample evidence in respect of the impact prison life would have on the applicant: R v L. The Court in R v L at page 9 reiterated the principles stated in R v Sopher (1993) 70 A Crim R 570 at 573 and the position of this Court on these issues (emphasis added): "Health and age are relevant to the length of any sentence but usually, of themselves, would not lead to a gaol sentence not being imposed if it were otherwise warranted. Much depends on the circumstances. For example, a person may have but a short life to live, or need intense treatment which cannot be provided in gaol. There may be circumstances where, to keep a person in gaol would probably lead to his early death, and this would not otherwise occur. The variety and combination of circumstances are legion. An appropriate balance has to be maintained between the criminality of the conduct in question and any damage to health, or shortening of life. The Department of Corrective Services has the responsibility of providing for health care, but there may be cases, where what is required on a permanent basis extends beyond what it can provide and can be expected to provide. In almost all cases, what the Department is able to provide will suffice . If gaol is significantly harder for a person because of difficulties due to health and age, this would be a relevant matter to take into account". 41 I am of the opinion that the manner in which His Honour dealt with the applicant's medical problems and his physical condition was not adequately reflected in the sentence imposed, in light of the harsher conditions that the applicant's incontinence would cause him, and thus I consider that His Honour was in error as to the applicant's medical condition. 42 In light of the errors as to the manner in which His Honour used the applicant's criminal record and the applicant's medical condition, I consider that His Honour has erred and that the sentence was manifestly excessive. 43 This Court's discretion as to whether it should intervene and for the purposes of re-sentencing, it is my view that the combination of the two factors on sentencing warrants the Court intervening and setting aside the sentences, and this Court should re-sentence the applicant. 44 I consider that for the purposes of s17A of the Crimes Act 1914 (Cth) that a period of custodial sentence is appropriate in the circumstances of the case, and that in accordance with DPP v El Karhani (1990) 21 NSWLR 390, the sentence should be reduced under s16G of the Crimes Act 1914, and I also consider that the plea of guilty, although not showing contrition, the fact of the plea, as His Honour correctly found, facilitated the judicial process and thus the ten percent accorded to the applicant by His Honour was appropriate. 45 Taking into account the factors required by, in particular s16A and 16BA of the Crimes Act 1914, and that being the matters taken into account, I consider that a proper exercise in sentencing is to take into account the pre-sentence period served, and the fact that the offences occurred as part of the same course of conduct by the applicant, that the sentence imposed by His Honour should be the sentences of this Court, but that they be served concurrently rather than cumulatively.

46 Accordingly, for the sentences imposed for the charges under s281 of the Act, taking into account the additional sentences on the Form under s16BA of the Crimes Act 1914 on Count 1, on the first sentence I would impose a sentence of three years imprisonment, commencing on 14 March 2001, with the direction that the applicant be released at the expiration of two years of his sentence, that is on 13 March 2003, upon entering a recognisance pursuant to s20(1)(B) of the Crimes Act 1914, to be of good behaviour for a period of one year, from that date, and to appear to receive sentence if called upon to do so at any time in respect of any breach within the said period. For the offence under s234 of the Act, I would impose a sentence of ten months to be served concurrently with the three year sentence imposed for the s281 offences. 47 Each of the sentences will take into account the two months and eleven days in prison allowed by His Honour the Sentencing Judge, which is the reason for backdating from the original sentencing date. 48 In accordance with s16F of the Crimes Act 1914, if the sentences that I have proposed are imposed, the applicant should understand that he has been sentenced to a maximum of three years imprisonment, with a fixed period of two years for all offences under s281 of the Act, and that I have directed that you be released from prison after you have served two years of your sentence, at which time you are to enter into a recognisance pursuant to s20(1)(B) of the Crimes Act. The offence for which he has been sentenced under s234 of the Act is to be served concurrently, with both sentences to commence on the same day. Both sentences have been backdated to the original sentencing date imposed by His Honour of 14 March 2001, to take into account the time he has spent in prison and that the period of imprisonment will expire on 13 March 2003. 49 Accordingly I would propose the following orders:

(a) That application be granted and the appeal upheld; (b) That the sentences imposed by His Honour Shadbolt DCJ be quashed; (c) On the offences against s281 of the Act, the applicant be sentenced to a term of three years imprisonment to commence on 14 March 2001 and to expire on 13 March 2004, and I direct that the applicant be released at the expiration of two years of his sentence, that is, after 13 March 2003, upon entering a recognisance pursuant to s20(1)(B) of the Crimes Act 1914 , to be of good behaviour for a period of one year, from that date, and to appear to receive sentence if called upon to do so at any time in respect of any breach within the said period; and (d) That on the offence matters under s234 of the Act a period of ten months be imposed, to commence on 14 March 2001, and to be served concurrently with the offences under s281 of the Act imposed above. 50 KIRBY J: I agree. oOo

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