Sentencing guidelines criminalize refugees

Post Date: Feb 2nd, 2015 | Categories: Crime, Food, Housing, Legal, Welfare | COMMENT

A South Asian women walked out of a supermarket without paying for several items worth less than 200$ in her recycling bag. Two shop attendants readily intercepted her outside and accused her of shoplifting. The police were called in to handle the matter and she was arrested. Several months later in a magistracy court, the 54 year old woman was convicted of theft and sentenced to 6 months jail.

The magistrate was convinced there was criminal intention (mens rea) by the plain facts that she had removed items from shelves, placed them in a bag and walked by cashiers without paying. CCTV recorded such actions without evidence of suspicious behaviour, such as acting furtively, glancing around before stealing, resisting interception and admitting guilt to be ‘given a second chance’.

On 29 January 2015 barrister Mark Sutherland, a non-executive director of Vision First, made submissions in favour of the appellant in the high court. He underlined the mental state of a woman who suffered persecution before seeking refuge in Hong Kong in 2004. Such traumatic experiences resulted in PTSD that worsened severely as she felt an outcast, immiserated and marginalized refugee for over a decade. The prohibition from working denied her a dignified life.

A report by clinical psychologist Dr. Parul Batra, also a non-executive director of Vision First, described the severe depression and mental disorder of a disoriented and confused lady disconnected from society who had never received any psychological support. The court heard that the appellant suffered from memory loss, flashbacks, trouble concentrating and ‘non-insane automatism’, i.e. performing acts without the conscious control of the mind.

In addition, while shopping the lady had received a distressing phone call informing her that her husband, also a refugee in Hong Kong, had suffered an accident and had been admitted to hospital. More doubts where raised about her criminal intention by the fact that when she was stopped she calmly stated, “I forgot to pay” without resistance, justification or other behaviour typical of thefts.

Mr. Sutherland objected to the lower court magistrate having drawn adverse inferences from the woman having entered HK as a domestic helper before seeking asylum. The court was reminded that every asylum seeker must either enter illegally or overstay a visa before raising a claim. The defense reiterated that while asylum claims are pending assessment, and until all legal remedies are fully exhausted, nobody is allowed to make any comments on why and how claimants seek asylum.

In the high court, the Honourable Judge Tallentire confirmed the conviction, but reduced the previous sentence from six to three months. It is regrettable that lower court magistrates put little weight on psychological reports and show no sympathy for asylum seekers painted with one brush, often meting out decontextualized sentences as per guidelines that only dehumanize offenders. Culpability aside, a six month sentence recalls the banning to Australia of those guilty of stealing bread in 19th century England. If only such custom were maintained today!

On a general note, it is important to have regard of the matters that refugees analyze: (a) shoplifting is punished by a fine or a few months jail; (b) selling small amounts of drugs is punished by 6 to 8 months jail; (c) common theft is punished by 6  to 8 months jail; (d) working is punished by 15 months jail for pleading guilty and 22 months for pleading not guilty. Could sentencing guidelines be blamed for criminalizing destitute refugees denied viable pathways to live in dignity?

Sentencing guidelines criminalize refugees
Outside the burned flat where Lucky lost his life, refugees discuss the impossibility of paying rent without breaking the law. It is reported that Lucky paid 1800$ for his hut. The refugee living in the next hut paid 2100$. The government rent allowance is 1500$. Selective work rights are the only longterm solution to many asylum-related problems.