Guden v The Queen

[2010] VSCA 196

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2008 0725

BURAK GUDEN
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, BONGIORNO JA and BEACH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 July 2010
DATE OF ORDERS:	12 July 2010
DATE OF PUBLICATION OF REASONS:	6 August 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 196
JUDGMENT APPEALED FROM:	R v Guden, Hanna and Musa (Unreported, County Court of Victoria, Judge Barnett, 20 June 2008)

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CRIMINAL LAW – Appeal – Sentence – Threat to kill, causing serious injury intentionally – Manifest excess – Relevance of possibility of deportation – Deportation appropriately taken into account – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S A Moglia	Victoria Legal Aid
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P

BONGIORNO JA
BEACH AJA:

1. The appellant pleaded guilty to a number of counts relating to a single incident, and was sentenced as follows:

Count	Offence	Maximum	Sentence	Cumulation
1	Threat to kill	10y	1y	6m
2	Causing serious injury intentionally	20y	4y	18m
3	Causing serious injury intentionally	20y	6y	BASE
4	Affray	5y	2y	-
7	Theft	10y	1m	-
8	Possession of a drug of dependence	1y	1m	-
Charge	Summary offence	Maximum	Sentence	Cumulation
18	Possess controlled weapon	1y	1m	-
19	Possess prohibited weapon	2y	1m	-
TES:    8y NPP:   6y Ancillary orders made: disposal order and forensic sample retention order

1. He appealed by leave against the sentence.  At the conclusion of the hearing we dismissed the appeal.  We said that we would publish our reasons subsequently.  These are those reasons.

The circumstances

1. The appellant and two co-offenders (who were sentenced together with the appellant) had been out drinking in the city.  The appellant had also injected himself with testosterone, and had taken Panadeine Forte and cold and flu tablets.  The victims, JD and PD, and their friends had also been out in the city.  Both parties were driving home along Dandenong Road when the offending occurred.  The ‘offender’ party was in one car; the ‘victim’ party was in two separate cars.

1. JD tried to engage Hanna (one of the co-offenders) and another female in conversation (through the car windows).  The appellant then threatened JD.  The cars stopped at a red light, and the appellant got out of his car.  He swung a machete at PD through an open car window and cut his arm.  JD got out of his car and was punched and kicked by Musa (the other co-offender).  The appellant then attacked JD with the machete.  JD tried to run away but the appellant struck him in the back of the head with the machete.

Manifest excess

1. We were not persuaded that the sentences imposed on counts 1, 2 and 3, the head sentence or the non-parole period were manifestly excessive.  Manifest excess is a difficult ground to make out, as explained by Maxwell P in R v Abbott:[1]

The ground of manifest excess will only succeed where it can be shown that the sentence was “wholly outside the range of sentencing options available” to the sentencing judge.

The “range” for this purpose is the range within which it would have been reasonable for a sentencing judge to sentence this appellant for this offence in these circumstances.  It follows that the ground of manifest excess will only succeed if it can be shown that no reasonable sentencing judge could have imposed this sentence on this offender for this offence in these circumstances.  That is a stringent requirement, difficult to satisfy.  It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance.  Sentencing is not the task of appellate courts, except where clear error is shown.  Where the ground of appeal is manifest excess, error will only be shown where it can be demonstrated that the sentence is obviously wrong in the sense I have described, that is, it is a sentence which no reasonable judge could have imposed in the circumstances.

[1]170 A Crim R 306, 309.

1. This was very serious offending.  We note in particular that:

·           there was some evidence of pre-meditation (although the actual offending was spontaneous), in that the offenders had taken the machetes with them that night;

·           it was an unprovoked ‘frenzied attack’[2] on unknown victims;

[2]R v Guden, Hanna and Musa (Unreported, County Court of Victoria, Judge Barnett, 20 June 2008), [36].

·           the attack caused very serious – and, in one case, permanent – injuries;

·           the attack continued after JD tried to escape and stopped when a car was driven towards the appellant and co-accused, and JD managed to seek refuge in his car;

·           onlookers were traumatised;  and

·           the weapons were discarded in a drain, presumably to avoid detection.

1. The appellant was previously found guilty, in the Children’s Court, of two counts of recklessly causing serious injury.  The incident involved a fight in which the appellant inflicted stab wounds with a knife.  Although no conviction was recorded, the finding of guilt was relevant to the present sentencing exercise.

1. The appellant could rely on a number of mitigating features:  his plea of guilty;  his youth (he was 20 years old at the time of the offending);  the adjustment disorder and stress caused by his family’s ongoing immigration difficulties;  and the fact that up to the age of 11 (before coming to Australia) the appellant had witnessed his family’s ill-treatment by the Turkish authorities.  The judge also took into account the fact that the appellant would probably be deported once he completed the non-custodial portion of the sentence.

1. The Crown refers to the cases of R v Ung[3] and DPP v Terrick, Marks and Stewart[4] in support of its submission that the sentence imposed was within range.  In Ung, the appellant was 18, had no prior convictions, and pleaded guilty to intentionally causing serious injury for a machete attack on a train.  He was sentenced to four years and six months’ imprisonment, with a non-parole period of three years.  The Court noted that, while rehabilitation was important, especially for young offenders,[5] specific and general deterrence were also important considerations, especially where the offender had armed himself in advance.  In Terrick, the offending involved a particularly serious and prolonged attack, and the two appellants who were convicted of intentionally causing serious injury were each sentenced to 11 years and six months’ imprisonment.

   [3][2002] VSCA 101 (‘Ung’).

   [4][2009] VSCA 220 (‘Terrick’).

   [5]See R v Mills [1998] 4 VR 235.

1. In our view, the sentences imposed were within the range reasonably open to the judge sentencing this appellant for this offending, full weight being given to the mitigating factors.

Relevance of deportation

1. The appellant and his parents arrived in Australia in 1997 on tourist visas.  They had subsequently applied for permanent residency but, as at the date of sentencing in June 2008, had still not been successful.

1. Prominent in the plea submission on the appellant’s behalf was a contention that if he were sentenced to a term of imprisonment greater than one year, he would be deported to Turkey upon his release from custody.  Although the prosecutor complained that this assertion was unsubstantiated, the judge accepted it. 

1. His Honour also rejected the prosecutor’s submission that the risk of deportation could not be taken into account.  In sentencing, the judge said:

… I do take into account as a personal consideration relating to you that after being sentenced in respect of these matters on your release from custody in all probability you will be deported to Turkey and … in all probability that will cause you significant difficulties with your own personal development.[6]

[6]R v Guden, Hanna and Musa (Unreported, County Court of Victoria, Judge Barnett, 20 June 2008), [48].

1. In this Court, the appellant submitted that the sentencing judge had attached insufficient weight to his probable deportation and its likely consequences.  For its part, the Crown submitted that, as a general proposition, the possibility of deportation was an irrelevant consideration in the sentencing process.  Counsel for the Crown accepted, nevertheless, that the prospect of deportation could be taken into account if, for example, it would make the period of imprisonment more burdensome.

The authorities

1. Contrary to the submission advanced by the Crown, there is no general proposition that ‘the possibility of deportation is an irrelevant consideration in the sentencing process’.  The submission is founded on a misreading of the authorities said to support it.

1. The starting-point is the decision of the New South Wales Court of Criminal Appeals in R v Chi Sun Tsui.[7]  The issue before the Court in that case was whether the prospect of the offender’s deportation was

a relevant or permissible matter to be considered when determining whether or not to specify a non-parole period.[8]

Under the relevant NSW legislation, the sentencing court could decline to specify a non-parole period either by reason of the nature of the offence or of the offender’s antecedents, or ‘for any other reason which the Court considers sufficient’.

[7](1985) 1 NSWLR 308 (‘Chi Sun Tsui’).

[8]Ibid 310E.

1. A different provision of the same legislation prohibited the Parole Board from refusing to release a prisoner on parole ‘by reason only that, in the opinion of the Board, the prisoner may become liable to be deported’.  Street CJ (with whom Slattery CJ at CL and Roden J agreed) held that the same legislative policy should be taken as governing the sentencing court’s decision whether or not to fix a non-parole period:

… [The provision addressed to the Parole Board] seems to me to import likewise that the prospect of deportation is equally irrelevant to be weighed by a sentencing judge when he comes to considering whether a non-parole period should be specified.  The legislature has in [that provision] answered the policy consideration in terms which indicate that the rehabilitative philosophy that underlies the parole legislation is not to be regarded as impinging in any way upon the deportation of a prisoner, once that prisoner is free from the custodial restraints of a State or Commonwealth sentence.  The discretion to withhold a non-parole period is exercisable for the two specific reasons enunciated in s 21(1)(a) as well as “for any other reason which the Court considers sufficient”: s 21(1)(b).  Holding the view, as I do, that the prospect of deportation is not a relevant matter for consideration by a sentencing judge, in that it is the product of an entirely separate legislative and policy area of the regulation of our society, I do not consider that that prospect can be weighed as “for any other reason” within s 21(1)(b).[9]

[9]Ibid 311C–E (emphasis added).

1. In R v Shrestha,[10] the High Court addressed the same issue – the fixing of a non-parole period – under Commonwealth sentencing law, and (by majority) came to the same conclusion.  In a joint judgment, Deane, Dawson and Toohey JJ held that the likelihood of deportation if the convicted person were subsequently released on parole was not an obstacle to the setting of a non-parole period.[11]  In their dissenting judgment, Brennan and McHugh JJ referred to the decision in Chi Sun Tsui[12] as standing for the proposition that

the prospect of deportation is not an admissible or relevant factor to be considered in the exercise of a discretion to withhold the specification of a non-parole period.[13]

[10](1991) 173 CLR 48.

[11]Ibid 71–3.

[12](1985) 1 NSWLR 308.

[13]R v Shrestha (1991) 173 CLR 48, 57. Their Honours also referred to R v Mesdaghi [1979] 2 NSWLR 68, 71.

1. The oft-cited statement by Street CJ – that the prospect of deportation ‘is not a relevant matter for consideration by a sentencing judge’ – must therefore be understood as explained by, and limited to, the statutory context in which it arose and the particular issue which the Court was addressing – that of the fixing of a non-parole period.  There was no occasion for Street CJ to make, nor do we think his Honour intended to make, any wider statement about the relevance of deportation as a factor in sentencing.[14]

   [14]Cf R v Simard [2001] QCA 531, [5] (‘Simard’), where the Queensland Court of Appeal (McPherson JA) treated what Street CJ said as a statement of general application.  The same view was taken by the Western Australian Court of Criminal Appeal in Dauphin v The Queen [2002] WASCA 104, [22] (‘Dauphin’).

1. The present question is of a quite different character.  No issue arises here of the propriety of the fixing of a non-parole period.  Rather, the question which the Crown raised on the leave application, and pressed on the appeal, was whether the prospect of the offender being deported upon completion of the custodial portion of the sentence could be relied on in mitigation of sentence. 

1. This Court addressed that question in R v Griffiths.[15]  In that case, the applicant for leave to appeal had been sentenced to 15 months’ imprisonment.  Evidently it was only after sentence was imposed that those representing the applicant realised that the imposition of a sentence of more than 12 months’ imprisonment had rendered him liable to deportation on the completion of the custodial portion of the sentence.  Tadgell JA (with whom Phillips and Kenny JJA agreed) addressed the question

whether the applicant’s liability – possible or probable – to deportation pursuant to ministerial or administrative exercise of statutory power was a matter that was relevant to have been taken into consideration by the sentencing judge.

Of course, it may be said, in a general sense, that any fact or circumstance is relevant upon a plea for leniency that is calculated to induce the sentencing judge to ameliorate the sentence or conditions attached to it.  To place before the judge established facts on or by reference to which the sentencing discretion may be validly exercised is one thing and is obviously permissible; … [but] the sentencing judge should be neither obliged nor entitled to speculate that what is a mere future possibility might or might not materialise into a reality. If it were appropriate or proper for a judge in one case to reflect or theorise in that way and, having done so, to ameliorate the sentence that it fell to him to pass, why should not another judge in another case, engaging in similar reflection or theorisation, come to a different result?

…

In the present case, … we are invited to consider and act upon what counsel for the respondent called, and I think without tautology, “a completely speculative possibility”.  The statutory power that is conferred by s 200 of the Migration Act to order deportation is, so far as appears from the words of the statute, completely discretionary.  No doubt departmental guidelines for the exercise of the discretion exist but neither the sentencing judge nor this Court can possibly know in the present case how the discretion will be, or even how it is likely to be, exercised.  Quite apart from anything else, it would be unseemly, as I think, for a court to attempt to formulate a sentence in order, on the one hand, to accommodate or, on the other, to avoid the possible exercise of an administrative discretion.[16]

[15](Unreported, Court of Appeal, 29 April 1998, Tadgell, Phillips and Kenny JJA) (‘Griffiths’).

[16]Ibid 10–12 (emphasis added).

1. In 2004, in R v Kwon,[17] the New South Wales Court of Criminal Appeal had no hesitation in treating the prospect of deportation as a factor properly taken into account in mitigation of sentence.  The offender had been sentenced to two years and eight months’ imprisonment for manslaughter.  In contrast to the uncertain position in Griffiths,[18] the evidence apparently established that the offender would inevitably be deported upon completion of the custodial portion of the sentence.  In dismissing the Crown’s appeal against sentence, Hulme J (with whom Tobias JA agreed) said that the certainty of deportation was one of two key factors which justified what would otherwise have been a manifestly inadequate sentence.  The other was that, by virtue of being imprisoned, the respondent had lost the business which he had established and which was an asset ‘of significant value’.  Hulme J said:

These two matters are not insubstantial and one may fairly say, in practical terms, punishing consequences of his offending.  I would regard an opportunity for someone in the situation of the [offender] of permanently settling in Australia with his family as something of real value to him.[19]

[17][2004] NSWCCA 456 (‘Kwon’).

[18](Unreported, Court of Appeal, 29 April 1998, Tadgell, Phillips and Kenny JJA).

[19]Kwon [2004] NSWCCA 456, [14].

1. Counsel for the appellant drew our attention to a more recent decision of the New South Wales Court of Criminal Appeal in R v Qin.[20]  That was also a Crown appeal, and one of the arguments advanced was that the possibility of deportation had been impermissibly taken into account in reduction of sentence.  The sentencing judge had said that the threat of deportation was a relevant factor – ‘if technically [not] an additional punishment, at least something which increases the seriousness of the consequences of the sentence that is imposed.’ 

   [20][2008] NSWCCA 189 (‘Qin’).

1. The Court of Criminal Appeal (Grove J, with whom McClellan CJ at CL and Blanch J agreed) pointed out that the judge had cited the authorities concerning the fixing of a non-parole period, which said nothing about deportation as a mitigatory factor.  At the same time, the Court did not refer to the earlier decision in Kwon,[21] which emphatically supported what the sentencing judge had done.  Grove J cited the following statement in R v Pham[22] by Wood CJ at CL:

It is established principle that the fact of deportation is irrelevant as a sentencing consideration, it being a matter exclusively for the Executive Government …

[21][2004] NSWCCA 456.

[22][2005] NSWCCA 94.

but found it unnecessary to decide the question of principle.[23]

[23]Qin [2008] NSWCCA 189, [40].

Conclusion

1. In our view, authority does not require, and there is no sentencing principle which would justify, a conclusion that the prospect of an offender’s deportation is an irrelevant consideration in the sentencing process.  As a matter of principle, the converse must be true.  Like so many other factors personal to an offender which conventionally fall for consideration, the prospect of deportation is a factor which may bear on the impact which a sentence of imprisonment will have on the offender, both during the currency of the incarceration and upon his/her release.[24] 

   [24]See Khem v The Queen [2008] VSCA 136, [31].

1. It follows that, subject always to the state of the evidence before the sentencing court, the prospect of deportation of the offender is a proper matter for consideration in determining an appropriate sentence.  The Queensland Court of Appeal pointed out in Simard[25] that this is not a sentencing consideration which can be called in aid by an offender who has Australian citizenship.  But, with respect, this is simply an illustration of the infinite variety of personal circumstances which fall for consideration. 

   [25][2001] QCA 531, [6]; see also Dauphin [2002] WASCA 104, [22].

1. As the Crown properly conceded on this appeal, the fact that an offender will serve his/her term of imprisonment in expectation of being deported following release may well mean that the burden of imprisonment will be greater for that person than for someone who faces no such risk.  Moreover, we respectfully agree with the view expressed by the New South Wales Court of Criminal Appeal in Kwon[26] that, in an appropriate case, it will be proper to take into account the fact that a sentence of imprisonment will result in the offender losing the opportunity of settling permanently in Australia.  Taking a practical approach, as the Court there did, this may well be viewed as a serious ‘punishing consequence’ of the offending.

   [26][2004] NSWCCA 456.

1. Of course, as this Court made clear in Griffiths,[27] the sentencing court cannot be asked to speculate.  If defence counsel on a plea in mitigation can say no more than that a term of imprisonment of more than 12 months will, upon its expiry, enliven the power of the Minister for Immigration either to revoke an existing visa or to decline to renew one, then deportation may properly be viewed – as in Griffiths – as ‘a completely speculative possibility’.  

   [27](Unreported, Court of Appeal, 29 April 1998, Tadgell, Phillips and Kenny JJA).

1. What Nettle JA said in R v Tabone,[28] in relation to the comparable question of the risk of confiscation of property following a conviction, applies with equal force here.  That is, in the absence of evidence or an appropriate concession by the Crown, there will be no error in a judge declining to take into account the possibility of deportation.  Indeed, in order properly to assess the weight to be given in any particular case to a risk of deportation, evidence would be required sufficient to permit a sensible quantification of that risk to be undertaken.  It would also be necessary for a prisoner to demonstrate that deportation in his/her case would in fact be a hardship.

   [28](2006) 167 A Crim R 18, [14].

1. In the present case, the appellant was treated a good deal more generously in this respect than he was entitled to expect, given the complete dearth of evidence about the real likelihood of his deportation.  As already noted, the judge proceeded on the basis that he faced the probability of deportation.   Hence there was no foundation for the appellant’s complaint of a failure to accord appropriate weight to this consideration.

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