Hickling v The State of Western Australia
[2016] WASCA 124
•13 JULY 2016
HICKLING -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 124
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 124 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:177/2015 | 9 JUNE 2016 | |
| Coram: | McLURE P MAZZA JA MITCHELL J | 13/07/16 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal on proposed grounds 2 and 4 refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | CRAIG STEPHEN HICKLING THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Drug offences Appeal against sentence Application for extension of time within which to appeal Total effective sentence 3 years 6 months' imprisonment Whether the learned sentencing judge erred by failing to give notice to the appellant that he was not prepared to act on an alleged mitigating circumstance Whether the learned sentencing judge erred by sentencing the appellant for an offence for which he was not charged or convicted Whether a miscarriage of justice occasioned by the learned sentencing judge's failure to take into account the appellant's prospect of deportation from Australia to New Zealand Whether the sentence imposed on count 1 was manifestly excessive Whether the total effective sentence breached the first limb of the totality principle |
Legislation: | Migration Act 1958 (Cth), s 500(1)(ba), s 501, s 501CA Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth), Sch 1 s 8 Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 34 Sentencing Act 1995 (WA), s 9AA |
Case References: | Ali v R [2014] NSWCCA 45 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 Cohen v The State of Western Australia [No 2] [2007] WASCA 279; (2007) 180 A Crim R 348 Dauphin v The Queen [2002] WASCA 104 Director of Public Prosecutions v Zhuang [2015] VSCA 96 Giglia v The State of Western Australia [2010] WASCA 9 Guden v The Queen [2010] VSCA 196; (2010) 28 VR 288 Gullello v The State of Western Australia [2011] WASCA 261 Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176 Houghton v The State of Western Australia [2006] WASCA 143; (2006) 32 WAR 260 Khanchitanon v The Queen [2014] NSWCCA 204 Konamala v The Queen [2016] VSCA 48 Law v The State of Western Australia [2009] WASCA 193 Lima Da Costa Junior v The Queen [2016] VSCA 49 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Nei Lima Da Costa Junior v The Queen [2016] VSCA 49 Ponniah v The Queen [2011] WASCA 105 R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 R v UE [2016] QCA 58 Schneider v The Queen [2016] VSCA 76 Tan v The Queen [2011] VSCA 427; (2011) 216 A Crim R 535 The State of Western Australia v Andela [2006] WASCA 77 The State of Western Australia v Littlefair [2013] WASCA 177 The State of Western Australia v MacKenzie [2011] WASCA 116 TJD v The State of Western Australia [2014] WASCA 10 Zimmerman v The State of Western Australia [2009] WASCA 211 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HICKLING -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 124 CORAM : McLURE P
- MAZZA JA
MITCHELL J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : BIRMINGHAM DCJ
File No : IND 702 of 2015
Catchwords:
Criminal law - Drug offences - Appeal against sentence - Application for extension of time within which to appeal - Total effective sentence 3 years 6 months' imprisonment - Whether the learned sentencing judge erred by failing to give notice to the appellant that he was not prepared to act on an alleged mitigating circumstance - Whether the learned sentencing judge erred by sentencing the appellant for an offence for which he was not charged or convicted - Whether a miscarriage of justice occasioned by the learned sentencing judge's failure to take into account the appellant's prospect of deportation from Australia to New Zealand - Whether the sentence imposed on count 1 was manifestly excessive - Whether the total effective sentence breached the first limb of the totality principle
Legislation:
Migration Act 1958 (Cth), s 500(1)(ba), s 501, s 501CA
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth), Sch 1 s 8
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 34
Sentencing Act 1995 (WA), s 9AA
Result:
Leave to appeal on proposed grounds 2 and 4 refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S Vandongen SC
Respondent : Ms L E Christian
Solicitors:
Appellant : Justine Fisher Barrister & Solicitor
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Ali v R [2014] NSWCCA 45
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1
Cohen v The State of Western Australia [No 2] [2007] WASCA 279; (2007) 180 A Crim R 348
Dauphin v The Queen [2002] WASCA 104
Director of Public Prosecutions v Zhuang [2015] VSCA 96
Giglia v The State of Western Australia [2010] WASCA 9
Guden v The Queen [2010] VSCA 196; (2010) 28 VR 288
Gullello v The State of Western Australia [2011] WASCA 261
Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176
Houghton v The State of Western Australia [2006] WASCA 143; (2006) 32 WAR 260
Khanchitanon v The Queen [2014] NSWCCA 204
Konamala v The Queen [2016] VSCA 48
Law v The State of Western Australia [2009] WASCA 193
Lima Da Costa Junior v The Queen [2016] VSCA 49
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Ponniah v The Queen [2011] WASCA 105
R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
R v UE [2016] QCA 58
Schneider v The Queen [2016] VSCA 76
Tan v The Queen [2011] VSCA 427; (2011) 216 A Crim R 535
The State of Western Australia v Andela [2006] WASCA 77
The State of Western Australia v Littlefair [2013] WASCA 177
The State of Western Australia v MacKenzie [2011] WASCA 116
TJD v The State of Western Australia [2014] WASCA 10
Zimmerman v The State of Western Australia [2009] WASCA 211
1 McLURE P: I agree with Mazza JA and Mitchell J that the appeal against sentence should be dismissed, generally for the reasons they give on grounds 1, 2, 4 and 5. I propose to state my own reasons on ground 3, which claims there was a miscarriage of justice when the sentencing judge determined that he could not take into account the fact that the appellant faced deportation from Australia as a consequence of the sentence of imprisonment to be imposed. The appellant contends this court should follow the decision of the Victorian Court of Appeal in Guden v The Queen [2010] VSCA 196.
2 The appellant was born in New Zealand in July 1974. He arrived in Australia in 1998. He is a permanent resident, but not a citizen, of Australia. The evidence before the sentencing judge in relation to the prospect of deportation was wafer thin. The sentencing judge was told that if the appellant was to receive a sentence exceeding 12 months imprisonment, it would have 'some impact on him and more than likely the policy that’s been put in place by the Immigration Minister will apply to him' (ts 8). Further, after committing the offences and whilst awaiting sentence, the appellant established an information technology business with another person.
3 The appeal was conducted on the basis that s 501(3A) of the Migration Act 1958 (Cth) applied to the appellant. I will assume that to be so. Under s 501(3A), the visa of a non-citizen who is in prison and does not pass the character test because they have a substantial criminal record must be cancelled without notice to the visa holder. A non-citizen has a 'substantial criminal record' if, inter alia, he or she is sentenced to a total sentence of 12 months imprisonment or more. However, a person whose visa has been cancelled under s 501(3A) is able to seek revocation of the cancellation decision under s 501CA of the Migration Act. Further, s 500(1)(ba) provides for a merits review of a decision not to revoke the decision to cancel the visa.
4 The appellant was sentenced to a total sentence of 3 years 6 months imprisonment for two State drug offences. The practical effect of the relevant provisions of the Migration Act is that the Minister must cancel the appellant's visa; the decision to cancel the visa stands unless the Minister is satisfied that there is a reason why the original decision to cancel the visa should be revoked; a decision not to revoke the visa cancellation can be the subject of a merits review.
5 Prior to the introduction of s 501(3A) and related provisions by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth), the Minister had a power (not a duty) to cancel a visa on character grounds (the former statutory framework).
6 In Guden, the court held that 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 [25]. The court continued:
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 … 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 … this may well be viewed as a serious 'punishing consequence' of the offending [27].
7 Thus, the prospect of deportation is said to be capable of having a mitigatory effect in two distinct ways. First, during the term of imprisonment, the expectation of deportation may mean the burden of imprisonment is greater than it would be for inmates who are Australian citizens (the apprehension burden). Second, by virtue of the loss of the opportunity of settling permanently in Australia. However, in order to assess the weight to be given to these matters in any particular case, evidence would be required sufficient to permit a sensible quantification of the risk of deportation and it would also be necessary for an offender to demonstrate that deportation in his or her case would in fact be a hardship: Guden [29]. Guden has been followed in Victoria in LimaDa Costa Junior v The Queen [2016] VSCA 49 [24] - [26], Director of Public Prosecutions v Zhuang [2015] VSCA 96 [54], Konamala v The Queen [2016]) VSCA 48 [33] - [36] and Schneider v The Queen [2016] VSCA 76 [24] - [26].
8 The Guden principles were formulated against the background of the former statutory framework. However, there is nothing to suggest that the risk of deportation is materially different under the current statutory framework. The Victorian Court of Appeal has held that the change in legislative framework did not require any change to the scope or application of the Guden principles: DaCosta [41], Konamala [36]. It was common ground in Da Costa that, under the current statutory framework, no assessment could be made at the time of sentencing in that case of the risk of deportation following the applicant's release and that deportation was therefore viewed as a completely speculative possibility.
9 The law in Western Australia on the relevance of the prospect of deportation in the sentencing process predates Guden. The position in this State is that the prospect that an offender will be deported at the conclusion of his or her sentence is, without more, an irrelevant sentencing consideration: Dauphin v The Queen [2002] WASCA 104 [22], Houghton v The State of Western Australia [2006] WASCA 143 [23], Cohen v The State of Western Australia [No 2] [2007] WASCA 279 [21] and Ponniah v The Queen [2011] WASCA 105 [48]. That is also the law in New South Wales (Ali v R [2014] NSWCCA 45) and was the law in Queensland until the decision in R v UE [2016] QCA 58.
10 In Dauphin, two reasons are given for this position. First, the law relating to the deportation of offenders on character grounds reflects an entirely separate legislative policy. Second, it is an affront to the proper administration of criminal justice that offenders who are liable to deportation are treated more leniently than Australian citizens [22]. I am satisfied that Dauphin is correct. It is wrong to characterise the Commonwealth statutory administrative scheme for the deportation of non-citizens on character grounds as additional punishment for the offence(s) which trigger its application. The purpose of that scheme is not penal or punitive in character: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1. It is most closely analogous to preventive detention under the Dangerous Sexual Offenders Act 2006 (WA). As to which, see TJD v The State of Western Australia [2014] WASCA 10 [9]. Issues of proof of the likelihood of deportation only arise if relevance is established.
11 In this State, there is a separate but related issue of whether deportation sourced considerations can be relied on to support a finding that the time spent in prison will be more than usually arduous because different and harsher, objective, prison conditions apply to a prisoner facing deportation upon release such as, for example, the impact on security ratings, the availability of home leave and other prison privileges. Even if open as a matter of principle, a matter on which different views have been expressed (Houghton [45] (Steytler P), [49] - [51] (Roberts-Smith JA) and Cohen [20] - [29] (Steytler P)), proof of hardship of this kind at the time of sentencing presents a high, if not insurmountable, obstacle. Moreover, to extend the excess hardship principle to embrace the apprehension burden would be inconsistent with the principle that the prospect of deportation is, without more, an irrelevant sentencing consideration.
12 Finally, even if the Guden principles did apply, the evidence in this case falls well short of justifying any mitigatory weight for the possibility of the appellant being deported to the country where he was born and raised, New Zealand. Ground 3 is without merit.
13 MAZZA JA & MITCHELL J: This is an appeal against sentence.
Background
14 The appellant was born in New Zealand on 24 July 1974. He came to Australia in 1998. He is a permanent resident of Australia, but not a citizen (ts 8).
15 On 4 September 2015, the appellant was convicted in the District Court on his pleas of guilty of two counts of possession of a prohibited drug with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (MDA). Count 1 concerned 7.01 g of methylamphetamine with an average purity of 37%. Count 2 concerned 515.07 g of cannabis. The maximum penalty for count 1 is 25 years' imprisonment, or a fine of $100,000, or both: s 34(1)(a) of the MDA. The maximum penalty for count 2 is 10 years' imprisonment, or a fine of $20,000, or both: s 34(2)(a) of the MDA.
16 Later that day, Birmingham DCJ sentenced the appellant to 3 years' imprisonment on count 1 and 6 months' imprisonment (reduced from 12 months for totality) on count 2. He ordered that the sentences be served cumulatively. Thus, the total effective sentence imposed was 3 years 6 months' imprisonment. A parole eligibility order was made and the sentences were ordered to commence on 4 September 2015.
Application for an extension of time
17 The appellant requires an extension of time within which to appeal. The appeal was filed approximately six days out of time. The reason for the delay has been adequately explained. We would grant the extension of time.
Facts of the offending
18 At about 2.18 am on 14 February 2014, the appellant was sitting in his parked motor vehicle at Tomato Lake Reserve, Kewdale. Police officers searched him and found two clipseal bags that contained a quantity of methylamphetamine which, on later analysis, weighed a total of 7.01 g with an average purity of 37%. Police also found $4,975 in cash in various denominations, as well as two mobile telephones. Text messages and 'tick lists' retained on the mobile telephones were consistent with the purchase and sale or supply of prohibited drugs and a record of payments received and amounts owed. Records extracted from the mobile telephones indicated that, at the time the appellant was apprehended, he was in the midst of a drug deal (count 1).
19 The appellant was arrested and conveyed to the Belmont Police Station where he participated in a video record of interview during which he made partial admissions with respect to the methylamphetamine which had been seized.
20 Following the interview, the appellant was taken to his home at an address in Landsdale. There, police executed a search warrant under the MDA in his presence. The search uncovered a large amount of cannabis in a vacuum-sealed plastic sleeve found under the appellant's bed in the master bedroom, as well as smaller amounts of cannabis in plastic and clipseal bags in both the living room and master bedroom. Later analysis showed that the cannabis weighed 515.07 g (count 2). In addition, police found:
(a) drug paraphernalia;
(b) three dead mature cannabis plants, each approximately 1 m in height;
(c) 12 dead immature plants or seedlings; and
(d) three living plants or seedlings.
Appellant's personal circumstances
21 At the time he was sentenced, the appellant was 41 years old. He had a brief criminal history comprising only traffic matters. Since relocating to Australia from New Zealand in 1998 up to November 2013, he was employed in the field of telecommunications. Although the appellant had used cannabis since the age of 15 years, he began using methylamphetamine in 2013 following the breakdown of a relationship and the occurrence of a number of adverse personal events, including being made redundant. At the time he committed the offences the subject of this appeal, he was using methylamphetamine and cannabis on a daily basis. It was not disputed that, at the time of the offences, he was engaged in the sale of drugs. In late 2014, he established an information technology business with his current partner.
The sentencing proceedings
22 Some time prior to the sentencing hearing before Birmingham DCJ, the appellant's former lawyer urged the State to accept that, of the approximately 7 g of methylamphetamine the appellant possessed, half was for his personal use and the other half was for sale. The State did not accept this position. The appellant then retained Mr Millington, the lawyer who ultimately represented him before Birmingham DCJ.
23 With respect to count 1, Mr Millington submitted that the appellant was, at the time, a user of methylamphetamine and that he was selling the drug to fund his habit (ts 7). It is clear from the State's written sentencing submissions that the State did not entirely accept this proposition. The State's position is set out in par 33 of those submissions:
The extent of his drug dealing suggests this was not merely to support a drug habit. Nevertheless, it is the sale of drugs for commercial gain (AB 73).
The sentencing remarks
24 During the course of reciting the facts of the appellant's offending, his Honour noted that it was apparent from the contents of the appellant's mobile telephones that the appellant was undertaking drug transactions on credit and that he had 'a fairly established group of persons who purchased [illicit drugs] from [him]' (ts 16).
25 The learned sentencing judge expressly rejected the proposition put by the appellant's former lawyer that half the methylamphetamine would have been used by him and the other half sold.
26 With respect to the cannabis the subject of count 2, his Honour noted that in the pre-sentence report the appellant claimed that he had grown the drug to 'supply it to a friend who suffered from chronic pain' and that some of it was used by the appellant 'to self-medicate' (ts 16). The learned sentencing judge observed that, even if the appellant was going to distribute cannabis to his friend, 'you're still [involved in] the distribution of a prohibited drug' (ts 17). Later in the sentencing remarks, his Honour addressed the suggestion that the appellant sold drugs to fund his habit and not for profit. His Honour rejected that suggestion. He then said:
Clearly, you are selling a considerable amount of drugs and with the quantities of cash you've got, it is such that there seems to be some commercial aspect to it. Even if it is to simply pay for your own drugs, that's not a mitigating factor in any event (ts 17).
27 His Honour said that he would sentence the appellant on the basis that he had no relevant criminal convictions (ts 18). He also gave mitigating weight to:
(a) the appellant's favourable prospects of rehabilitation;
(b) the many positive character references which had been tendered on his behalf; and
(c) the appellant's own letter addressed to his Honour in which he described how his offending had adversely impacted others and jeopardised the gains he had made in his life as an adult (ts 19).
28 The learned sentencing judge observed that the appellant's pleas of guilty were not entered at the earliest opportunity, but were nevertheless entered at an early stage in the proceedings. As a result, he gave a discount of 20% for the pleas, pursuant to s 9AA of the Sentencing Act 1995 (WA).
29 His Honour described the offending as 'serious' (ts 19). He concluded that the only appropriate sentences for the offences were terms of imprisonment. After imposing individual sentences of imprisonment, he applied the totality principle. This led him to reduce the sentence he imposed on count 2 from 12 months' imprisonment to 6 months' imprisonment (ts 20). He then turned to the question of whether the sentences could be suspended. He rejected that option on the basis of 'the seriousness of the offences' (ts 21).
The grounds of appeal
30 There are five grounds of appeal, which we will set out as we deal with each of them. Leave to appeal has been granted on grounds 1, 3 and 5. The question of leave to appeal on grounds 2 and 4 was referred to the hearing of the appeal (AB 4).
Ground 1
31 Ground 1 alleges that the learned sentencing judge erred in failing to give notice to the appellant that he was not prepared to act on an alleged mitigating circumstance which was asserted by the appellant and not controverted by the prosecution; namely, that the appellant was a user of methylamphetamine and was selling that drug to partially fund that habit.
32 The relevant legal principles applicable to this ground are well established. If an offender seeks to have a sentencing judge take a matter into account as a mitigating circumstance, it will be for the offender to bring the matter to the judge's attention and, if necessary, call evidence about it. It will only be necessary for an offender to call evidence about a mitigating circumstance if the asserted matter is controverted by the prosecution, or if the sentencing judge is not prepared to act on the assertion even though it is not controverted by the prosecution: Law v The State of Western Australia [2009] WASCA 193 [30] - [31] (Buss JA, with whom McLure & Pullin JJA agreed).
33 In essence, the appellant alleges that the learned sentencing judge did not accord him procedural fairness by failing to inform defence counsel that he was not prepared to act on an alleged mitigating circumstance; namely, that the appellant intended to sell the methylamphetamine the subject of count 1 to fund his own illicit drug use.
34 The ground has no prospect of success for at least two reasons. First, the proposition that the appellant was selling methylamphetamine to fund his own illicit drug use and not for profit was expressly controverted by the State in its written submissions at par 33. Accordingly, his Honour was under no obligation to give the appellant notice that he was not prepared to act on defence counsel's submission. Second, and in any event, the notion that the appellant sold drugs to fund his illicit drug use is not of itself mitigatory: The State of Western Australia v Andela [2006] WASCA 77 [15] and The State of Western Australia v MacKenzie [2011] WASCA 116 [4]. There is no principle that dealers who are also drug addicts should be treated more leniently merely because their motive for dealing is the need for money to finance their drug habit: Andela [15] and MacKenzie [36].
35 We would dismiss ground 1.
Proposed ground 2
36 Proposed ground 2 alleges that the learned sentencing judge erred by not only sentencing the appellant for the offence set out in count 1 on the indictment, but also, for an offence of selling or supplying methylamphetamine over a period of time concluding on 14 February 2014, for which he had not been charged or convicted.
37 The gravamen of proposed ground 2 is that his Honour did not sentence the appellant on count 1 for the offence charged in the indictment. Rather, the learned sentencing judge sentenced him in respect of an uncharged offence of selling or supplying methylamphetamine over the period of time preceding 14 February 2014. In other words, that the appellant was sentenced for an offence for which he was not charged and convicted, contrary to R v De Simoni [1981] HCA 31; (1981) 147 CLR 383.
38 In oral submissions, senior counsel drew the court's attention to two passages in the sentencing remarks. First, just before his Honour announced the sentences, he said:
You've been described by your counsel as essentially a user/dealer. However, you are to be sentenced for what you've done rather than by reference to any label that might be attributed to the offending conduct.
In this case it was serious offending that was carried out over a period of time as is evidenced from the text message and the group of people to whom you sold and the numbers, the amount of money and credit, you were supplying drugs on credit on a tick list, as evidenced on the tick list and also the quantity of cash that you had (ts 19). (emphasis added)
- Second, when his Honour was dealing with the question of suspension, he said:
To allow suspension wouldn't adequately demonstrate the community's concern for and condemnation of offences of distributing as you have over a period of time drugs within the community when such drugs have such a deleterious effect upon the community (ts 21).
40 The relevant legal principles were explained by Steytler P in Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176 [26] - [29] and in such cases as Zimmerman v The State of Western Australia [2009] WASCA 211 [8] - [10] and Gullello v The State of Western Australia [2011] WASCA 261 [40].
41 A sentencing judge is bound to take into account all surrounding circumstances relevant to the commission of the offence. In assessing the seriousness of drug offences, the fact that an offender's conduct constituting that offence was not an isolated transaction but part of a commercial drug dealing enterprise is a relevant circumstance that aggravates the seriousness of the offending: Gullello [41]. Moreover, circumstances which indicate previous drug dealing, including the presence of substantial amounts of cash, suspicious text messages and tick lists, are relevant to whether and how much of the methylamphetamine was to be sold for profit. The surrounding circumstances are also relevant to the weight to be given to personal deterrence: Gullello [42].
42 On our reading of the sentencing remarks as a whole, his Honour was aware that his task was to sentence the appellant on the basis that he was found in possession of methylamphetamine on 14 February 2014. His description of the facts of the offence and express reference to the quantity of methylamphetamine reflect this awareness (ts 16). As we understand his Honour's sentencing remarks, his reference to the fact that the appellant had been dealing in drugs prior to 14 February 2014 was for the purpose of putting the offending on 14 February 2014 in its proper context. His Honour did not sentence for an offence for which the appellant had not been charged or convicted.
43 We would not grant leave to appeal on proposed ground 2.
Ground 3
44 Ground 3 alleges that a miscarriage of justice was occasioned when his Honour failed to take into account the fact that the appellant faced deportation from Australia as a consequence of the sentence of imprisonment that had been imposed. This ground raises the issue of whether the prospect of deportation from Australia is a mitigating factor.
45 The factual background to ground 3 is as follows. As we have already said, the appellant is not an Australian citizen. He is a citizen of New Zealand who was, at the time of his offending, a permanent Australian resident. Defence counsel, somewhat obliquely, raised the question of the appellant's risk of deportation in the course of his plea in mitigation. Defence counsel put it this way:
[The appellant] was born in New Zealand and he arrived in Australia in 1998. My understanding, sir, is that he's a permanent resident or [subject to] that type of visa when someone [who] comes from New Zealand to Australia has no citizenship, so any term that he would - if he was to receive today exceeding 12 months will have some impact on him and more than likely the policy that's been put in place by the Immigration Minister will apply to him. Obviously that's a matter that your Honour can take into consideration (ts 8).
46 Later in the plea in mitigation, defence counsel said to the learned sentencing judge:
I ask that you take into account everything that I've said before you today and obviously that additional factor that needs to be taken into consideration, given the fact that he's been here for a number of years as well, in Australia; [he] has ties here, has houses here, all those things that you can take into consideration as long [sic] with everything else that I've said (ts 11).
47 His Honour then queried with defence counsel whether the appellant's prospect of deportation was a matter of mitigation. The following exchange took place:
MILLINGTON, MR: Well, I don't think it's a mitigatory factor but I think it's a matter that the court can take into - well - - -
BIRMINGHAM DCJ: It's a hardship that arises by reason of hisconduct.
MILLINGTON, MR: Correct.
BIRMINGHAM DCJ: As prison is.
MILLINGTON, MR: Correct.
BIRMINGHAM DCJ: As is the separation from family and all other (indistinct).
MILLINGTON, MR: Yes, sir. Unless you have any questions, sir, they're my - - -
BIRMINGHAM DCJ: It's not unremarkable though, is it?
MILLINGTON, MR: No.
BIRMINGHAM DCJ: It's simply the process that Australia doesn't like people coming to this country and offending. Yes.
MILLINGTON, MR: Thank you sir (ts 12).
48 Consistently with this exchange, his Honour did not refer to the risk that the appellant would be deported in his sentencing remarks. It may be concluded that his Honour did not give the matter any mitigatory weight.
49 His Honour's approach reflects the sentencing law of this State. In Dauphin v The Queen [2002] WASCA 104, the appellant had been advised that he would be deported to New Zealand at the completion of his sentence [21]. It was submitted on his behalf that this should be taken into account as a mitigating factor in sentence. Steytler J (with whom Anderson & McKechnie JJ agreed) rejected this submission. His Honour said:
In my opinion, this submission is without merit. In R v Chi Sun Tsui (1985) 1 NSWLR 308 at 311, Street CJ (with whom the other members of the Court were in agreement) said that 'the prospect of deportation is not a relevant matter or consideration by a sentencing Judge, in that it is the product of an entirely separate legislative policy area of the regulation of society'. Those remarks were cited with apparent approval by Brennan and McHugh JJ in R v Shrestha (1991) 173 CLR 48 at 58. Furthermore, as McPherson JA explained in R v Simard [2001] QCA 531 at [6], taking the prospect of the applicant's deportation into consideration has the potential to 'produce a regime under which visitors or non-permanent residents [are] sentenced more leniently than Australians who [have] committed the same kind of offence. That cannot be a proper result in the administration of justice' [22].
50 Steytler J's statement in Dauphin has been cited with approval in this State in Houghton v The State of Western Australia [2006] WASCA 143; (2006) 32 WAR 260 [23]; Cohen v The State of Western Australia [No 2] [2007] WASCA 279; (2007) 180 A Crim R 348 [21] and Ponniah v The Queen [2011] WASCA 105 [48]. The approach taken in Western Australia has also been adopted in New South Wales: see R v Pham [2005] NSWCCA 94 [13], where Wood CJ at CL said that the fact of deportation is irrelevant to the sentencing consideration because it is a matter exclusively for the executive government. Wood CJ at CL's statement was cited with approval by Adamson J (with whom Hoeben CJ at CL & Fullerton J agreed) in Khanchitanon v The Queen [2014] NSWCCA 204 [28]. There, Adamson J held that it was an error for the first instance sentencing judge to take into account the prospect of deportation as amounting to extra-curial punishment, and 'to use deportation to determine any aspect of the sentence'.
51 The approach in Victoria and recently in Queensland differs from that in Western Australia and New South Wales. In Guden v The Queen [2010] VSCA 196; (2010) 28 VR 288, a question arose as to the relevance of the possibility of deportation in the sentencing process. In that case, the appellant, a Turkish national and not an Australian citizen, had been sentenced to a total effective sentence of 8 years' imprisonment for eight offences, including for offences of violence. He was sentenced on the basis that his prospect of deportation was mitigating. He submitted that the primary judge 'had attached insufficient weight to his probable deportation and its likely consequences' [14]. At the time the appellant was sentenced and his appeal decided, the Minister for Immigration had a discretion to revoke an existing visa or decline to renew one if that person was sentenced to a term of imprisonment of more than 12 months. Maxwell P, Bongiorno JA and Beach AJA held that there was no sentencing principle which justified the conclusion that the prospect of an offender's deportation is an irrelevant consideration in the sentencing process and that the converse must be true. Their Honours held that 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 his or her incarceration, and upon his or her release [25]. Their Honours said that, whether deportation was a mitigating factor depended upon the evidence, and a sentencing court cannot be asked to speculate about the prospect of that offender being deported. Their Honours also said:
If defence counsel on the 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 'a completely speculative possibility' [28].
52 Guden hasbeen followed in Victoria in a number of cases, including Tan v The Queen [2011] VSCA 427; (2011) 216 A Crim R 535 [126]; Director of Public Prosecutions v Zhuang [2015] VSCA 96 [54]; Konamala v The Queen [2016] VSCA 48 [33] - [36]; Lima Da Costa Junior v The Queen [2016] VSCA 49 [23] - [29] and Schneider v The Queen [2016] VSCA 76 [21] - [26].
53 In Queensland, the Court of Appeal in R v UE [2016] QCA 58 (Philippides JA, with whom Morrison JA & North J agreed) stated that the reasoning that led the Victorian Court of Appeal to its conclusion in Guden was 'compelling' [14]. Her Honour said:
It is undoubtedly correct that, in an appropriate case, the prospect of deportation may be a relevant factor, personal to the offender, to be considered in mitigation of sentence. The prospect of deportation may affect the impact of a sentence of imprisonment, because it makes the period of incarceration more burdensome, and also because upon release, the fact of imprisonment will result in the offender being deprived of the opportunity of permanent residence in Australia. While the prospect of deportation may be a relevant mitigatory factor, the sentencing court cannot be asked to speculate about that prospect or as to the impact of deportation on the offender. Proof that deportation will in fact be a hardship for the particular offender will be required [16].
54 The statutory regime applicable in UE (and in the Victorian cases of DPP v Zhuang, Konamala and Lima Da Costa Junior) was different to that in place when Guden was decided. A new regime was introduced by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) (MA Act), which commenced on 11 December 2014. Pursuant to s 8 of Sch 1 to the MA Act, s 501(3A) was inserted into the Migration Act 1958 (Cth). The effect of s 501(3A) is that the Minister must cancel a person's visa if satisfied that the person does not pass the character test and that person is serving a full-time custodial sentence. Section 501(6)(a) provides that a person does not pass the character test if that person has a 'substantial criminal record'. Section 501(7)(c) provides that a person has a 'substantial criminal record' if he or she has been sentenced to 12 months' imprisonment or more. However, pursuant to s 501CA(4), the Minister has the power to revoke a decision to cancel a person's visa if the Minister is satisfied that there is a reason why the decision should be revoked (s 501CA(4)(b)(ii)). The administrative power to revoke a decision to cancel a visa is a broadly expressed discretionary authority conferred on a Minister of the Commonwealth executive government. The power relevantly arises only after a court has determined a sentence of more than 12 months' imprisonment to be the appropriate sentence in all the circumstances of the case. Once the sentence is served, whether the offender is actually deported depends upon the manner in which the Minister chooses to exercise that administrative power.
55 Phillipides JA emphasised in UE that, where the prospect of deportation was relied upon as a mitigating circumstance, proof that deportation will in fact be a hardship for the particular offender is required [16]. In UE, statements relied upon by the applicant before the primary judge to the effect that he had chosen to live in Australia for 10 years; 'carved out a life for himself'; 'married someone [in Australia]'; and 'established a career [in Australia]', were, without more, held to provide an insufficient evidentiary basis upon which the sentencing judge could draw a conclusion of hardship [20].
56 In the present case, it is common ground that the appellant is subject to the 'new regime' and the Minister is obliged to cancel the appellant's visa in light of the imposition of a term of imprisonment of more than 12 months, subject to the Minister's power to revoke such a decision. Senior counsel for the appellant submitted that the appellant's position was mitigating because the prospect of deportation made the time the appellant spent in custody more onerous and that deportation was extra-curial punishment that should be taken into account as a mitigating factor. Senior counsel submitted that this court should adopt the approach taken in Victoria and Queensland (appeal ts 13).
57 It is obvious that the effect of the prospect of deportation upon a prisoner has not been uniformly approached in Australia. However, the position in Western Australia has been long established. Senior counsel for the appellant did not expressly ask this court to overrule Dauphin. No request was made for a bench of five judges to hear this matter. We have not been persuaded that the decision in Dauphin is wrong. We respectfully agree with the reasoning of Steytler J in Dauphin. That reasoning is consistent with the approach in this State with respect to other decisions of the executive arm of government regarding release on parole and the prospect of an interstate prison transfer.
58 Parliament may confer a discretionary administrative power on an executive officer which is engaged only after a court, exercising judicial power, has imposed an appropriate sentence according to law. In such cases, the determination of the appropriate sentence remains a matter for the exercise of the court's judicial discretion, applying appropriate sentencing principles.
59 The court's sentencing discretion is not appropriately exercised by reference to predictions about how such an administrative discretion, which arises only after the appropriate sentence is imposed, may be exercised at some future time. The Victorian Court of Appeal has correctly recognised this principle in relation to executive decisions about the grant of parole: Schneider [23]. The same approach should be applied in relation to the potential future exercise of discretionary administrative powers under the Migration Act.
60 Further, it is not apparent why, as a matter of principle, special mitigatory weight should be given to the effect which the 'prospect of deportation' may have on the impact which a sentence of imprisonment will have on the offender (Guden [25], [27]). Many offenders, if not every offender, sentenced to a term of imprisonment suffer uncertainty - even great uncertainty - in prison about matters such as whether their relationships will remain intact; their prospects of employment; whether they will have somewhere to live upon release and where that might be. For some, whether they will return home or back into the community or town in which they lived will be uncertain. These are regarded as matters which are unavoidable consequences of imprisonment and do not constitute mitigating circumstances. We are unable to see the qualitative difference between these factors and the prospect of deportation even under the new regime.
61 In any event, even if the prospect of deportation was a mitigating factor, it would be necessary for the appellant in this case to demonstrate hardship as a result of the prospect or fact of deportation to New Zealand. In oral argument, senior counsel was not able to point to any actual evidence of hardship suffered by the appellant, save for:
(a) the fact that the appellant has been in Australia for 19 years (appeal ts 10); and
(b) the matters raised by defence counsel, to which we have already referred at [56] of these reasons.
62 Senior counsel conceded that the evidence before the sentencing judge about the appellant's prospect of deportation and hardship was 'limited' and he did not seek to adduce further evidence designed to establish the point (appeal ts 12). The mere prospect of deportation cannot, of itself, constitute a mitigating circumstance.
63 For these reasons, the learned sentencing judge did not err by failing to take into account as a mitigating circumstance the prospect of the appellant's deportation from Australia to New Zealand. The prospect of deportation is not a mitigating circumstance in Western Australia. In any event, in those States in which the potential of deportation may be taken into account as a mitigating circumstance, it is necessary for offenders to demonstrate hardship. The court in Guden noted:
Of course, as this court made clear in Griffiths, 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' [28]. (footnotes omitted)
64 In the present case, the evidence fell well short of establishing hardship on the part of the appellant or that deportation was more than a completely speculative possibility.
65 Ground 3 has not been made out.
Proposed ground 4 and ground 5
66 Senior counsel for the appellant argued these grounds together (appeal ts 4). Proposed ground 4 alleges that the sentence imposed on count 1 was manifestly excessive. Ground 5 alleges that the total effective sentence infringed the first limb of the totality principle.
67 Having regard to this court's comments in Giglia v The State of Western Australia [2010] WASCA 9 [39] - [40] (Owen JA), senior counsel conceded that the allegation of manifest excess in proposed ground 4 in effect fell away and was subsumed within the larger question raised by ground 5; specifically, whether the total effective sentence infringed the totality principle (appeal ts 4).
68 Senior counsel submitted that the total effective sentence infringed the first limb of the totality principle having regard to the early pleas of guilty and the relatively low weight of methylamphetamine the subject of count 1 (appeal ts 6).
69 Proposed ground 4 and ground 5 are allegations of implied error. The first limb of the totality principle requires that the total effective sentence imposed bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referrable to the offender personally.
70 The dominant sentencing consideration for the offences of the kind committed by the appellant is general and personal deterrence. Because of this, matters personal to the appellant carry less weight.
71 It is plain that the appellant was a user of illicit drugs; however, he was also dealing in drugs for profit. The appellant was deeply involved in the drug trade, even if that involvement was at the lower end of the hierarchy. This is amply illustrated by:
(a) the communications and tick lists found on the appellant's mobile telephones;
(b) the presence of a substantial quantity of cash on his person; and
(c) the fact that he was distributing into the community more than one illicit drug.
While the quantity of methylamphetamine in count 1 was not as substantial as that found in other cases, it was not insignificant. In any event, the weight and purity of an illicit drug, as important as they are, are not the sole measure of the seriousness of the offending. The appellant's motives, whether to fund his own drug use, repay a drug debt, or even to pay for his living expenses, were not mitigating: The State of Western Australia v Littlefair [2013] WASCA 177 [34].
72 Count 2 cannot be overlooked. The appellant was found in possession of a reasonably substantial quantity of cannabis in the context of being engaged in the cultivation of that drug for some time prior to his apprehension. The presence of seedlings indicates an ongoing intention to produce and distribute cannabis. Given the nature of this separate and additional offending, it was well open for his Honour to order that the sentence on count 2 be served cumulatively on count 1.
73 The appellant was a mature man when he committed the offences. He could not call into aid youth or inexperience. His personal circumstances and antecedents were good. However, as we have already explained, matters personal to an offender carry less weight. Not only was general deterrence a relevant factor; so too was personal deterrence, having regard to the fact that the offences were not isolated. We have not overlooked the mitigatory effect of the pleas of guilty.
74 As the High Court has said in such cases as Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 15 and Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27], there is no single correct sentence and sentencing judges are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the applicable statutory regime. In our opinion, the total effective sentence did not infringe the first limb of the totality principle.
75 Ground 5 has not been made out.
76 Insofar as proposed ground 4 remains alive, we are of the opinion that the individual sentence imposed on count 1 was not manifestly excessive.
77 Proposed ground 4 has not been made out.
Conclusion and final orders
78 None of the grounds of appeal have been made out. The appeal must be dismissed.
79 The orders that we would make are as follows:
1. Leave to appeal on proposed grounds 2 and 4 is refused.
2. The appeal is dismissed.
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