R v Arrowsmith
[2018] SASCFC 47
•7 June 2018
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ARROWSMITH
[2018] SASCFC 47
Judgment of The Full Court
(The Honourable Justice Vanstone, The Honourable Justice Nicholson and The Honourable Justice Parker)
7 June 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - OTHER MATTERS
Application for an extension of time to apply for determination by the Full Court and an application for permission to appeal.
The applicant was sentenced to imprisonment for 12 months for attempting to import a border controlled precursor. He was released forthwith upon entering into a recognisance to be of good behaviour for one year (‘bond’).
The applicant breached the bond and a Judge of the District Court extended its term by a further 12 months. Soon after, the applicant again breached the bond. A Judge of the District Court revoked the bond and ordered that the applicant serve his sentence of 12 months imprisonment.
The applicant contends that bringing into effect the sentence was manifestly excessive. The applicant also applies for the Court to receive further evidence concerning his migration status.
Held per Parker J, Vanstone and Nicholson JJ agreeing, granting the application for an extension of time but refusing the application for permission to appeal:
a) The order was within the range of sentencing outcomes reasonably available to the Judge in the circumstances and was not manifestly excessive (at [40]).
b) The likelihood of the applicant being deported from Australia is, on the information before the Court, not assessable. As such, it is unnecessary to resolve the conflict between R v Berlinsky [2005] SASC 316 and R v Zhang [2017] SASCFC 5. On either view of the competing authorities, a speculative risk of deportation cannot be taken into account by this Court (at [38]).
Crimes Act 1914 (Cth) s 20A; Migration Act 1958 (Cth) ss 501, 501CA, referred to.
R v Berlinsky [2005] SASC 316; Guden v R (2010) 28 VR 288; R v Leka [2017] SASCFC 77; R v Schelvis [2016] QCA 294; R v Taheri [2017] SASCFC 115; R v Zhang [2017] SASCFC 5, considered.
R v ARROWSMITH
[2018] SASCFC 47Court of Criminal Appeal: Vanstone J, Nicholson and Parker JJ
VANSTONE J. I would refuse permission to appeal for the reasons given by Parker J.
NICHOLSON J: I agree with the orders proposed by Parker J for the reasons his Honour has provided.
PARKER J: This is an application for permission to appeal against a decision made by a District Court Judge under s 20A(5)(c)(i) of the Crimes Act 1914 (Cth). The Judge revoked a recognisance release order and ordered that the applicant serve the sentence of 12 months imprisonment originally imposed upon him for attempting to import a border controlled precursor.[1]
[1] Contrary to Criminal Code (Cth), ss 307.13(1), 11.1 (1) and 11.2A(1).
An application for permission to appeal was refused by a Judge of this Court on 26 February 2018. The Application for Determination by the Full Court (‘Form 51 Notice’) was not filed until 26 March 2018. That application should have been filed within five business days of receipt of notice of the refusal of permission (‘Form 50 Notice’). I note that the applicant has changed solicitor and counsel since he was sentenced. While the applicant was present during the hearing of the application for permission, and was therefore aware that permission had been refused, he asserts through his counsel that he was not served with the Form 50 Notice until 22 March 2018. The Court records do not conclusively state when the Form 50 Notice was provided. The applicant’s counsel has suggested that the delay was due to his incarceration. The respondent does not oppose the grant of an extension of time. Under the circumstances, an extension of time should be granted.
Background
On 28 January 2016 the applicant was sentenced to imprisonment for 12 months in relation to an offence of attempting to import a border controlled precursor during December 2013 contrary to ss 307.13(1), 11.1(1) and 11.2A(1) of the Criminal Code (Cth).[2] The applicant was released forthwith upon entering into a recognisance under s 20(1)(b) of the Crimes Act in the amount of $200 to be of good behaviour for one year (‘bond’). He also agreed to be under the supervision of a probation officer and to obey the lawful directions of that officer.
[2] The Criminal Code (Cth) is the schedule to the Criminal Code Act 1995 (Cth).
The circumstances of the offending in December 2013 were that the applicant participated in an attempt to import two parcels that were found to contain 1,900 grams of a powder that tested positive for pseudoephedrine when tested by the Indian authorities. The actual amount of pseudoephedrine comprised in the powder was not known.[3] The applicant had agreed to receive the parcels at his home address and to transport them to the home of another person in exchange for a quantity of methylamphetamine. One parcel was delivered to the applicant at his home by a Customs officer posing as a delivery driver. The applicant signed for the parcel and soon after delivered it to the agreed address.
[3] The circumstances of the offending are described in greater detail in my judgment in the Court of Criminal Appeal in R v Burtt [2018] SASCFC 5.
On 18 November 2016 the applicant was charged with a failure to comply with a condition of the recognisance release order. The relevant conduct was his refusal on two occasions in August and September 2016 to provide a urine sample, his failure to attend a domestic and family violence intervention program on 24 October 2016 and his failure to attend a make-up session for that program on 26 October 2016.
The applicant admitted those breaches. On 17 March 2017 a Judge of the District Court extended the applicant’s bond by a further 12 months. He was warned by the Judge of the consequences of any further breach. The Judge also added conditions to his bond that he not consume or possess any prohibited drug and comply with drug testing. The applicant acknowledged that he understood a breach may result in him being required to serve the sentence of 12 months imprisonment.
On 29 March 2017 the applicant provided a urine sample that was found to be positive for THC (i.e. the active ingredient of cannabis) and methamphetamine. On 15 June 2017 he provided a sample that was positive for methamphetamine and amphetamine.
On 8 November 2017 the applicant was again charged with a failure to comply with a condition of the recognisance release order. The relevant conduct was the positive urine samples on 29 March 2017 and 15 June 2017.
On 19 December 2017 a Judge of the District Court revoked the recognisance release order and ordered that the applicant serve his sentence of 12 months imprisonment. That order forms the subject of this appeal.
Personal circumstances
Prior to his imprisonment the applicant was residing with his partner with whom he had been in a relationship for over two years. He assisted in the care of her children aged 11 and 15 years. As a result of the applicant’s imprisonment his partner has found it necessary to resign from her work as an enrolled nurse. Nevertheless, she remains supportive of the applicant and they are engaged to be married.
In his late teens and again in his early twenties the applicant was seriously injured in motor vehicle accidents. Thereafter he only held irregular part time jobs. By 2002 the applicant had experienced two strokes and was suffering from ongoing injuries and chronic pain. Since that time his only income has been the disability support pension.
The applicant currently suffers from osteoarthritis and high blood pressure. He has also suffered three brain lesions and requires a left hip replacement. Prior to his imprisonment his partner assisted with the treatment of his medical conditions.
Sentencing remarks
The Judge found that the applicant had failed without reasonable cause or excuse to comply with the conditions of the recognisance release order. In those circumstances, s 20A(5) of the Crimes Act provided the Judge with several options. In addition to the option of taking no action, the other available options were to:
·impose a penalty of not more than $1,000;
·extend the recognisance release order by up to a maximum of five years;
·revoke the order and make an order under s 20AB; or
·revoke the order and order the offender to serve the sentence of imprisonment that had originally been imposed.
It is common ground between the parties that it was not open to the Judge to make an order under s 20AB. I refer to that matter in greater detail at [39] below.
The Judge noted that the applicant was then aged 51 years. His criminal history extended back to 1984. Most of his offences related to the use of motor vehicles although in 2004 he had committed offences of failing to comply with a restraining order and in 2008 he had been convicted of assault occasioning actual bodily harm. The applicant has received several suspended sentences but has never previously been required to serve a custodial sentence.
The Judge noted that the applicant had committed the breach in March 2017 only 12 days after he had appeared in the District Court when his recognisance was extended. He appeared to have paid little heed to the warnings given by the Judge on that occasion. Her Honour stated that she could see no reason to extend the applicant’s bond any further or to give him any further opportunities in the community. Her Honour took into account the submission that if the applicant was given an opportunity to remain in the community he would participate in the New Roads program. However, the Judge observed that in the past he had shown very little commitment to rehabilitation in the community. On this occasion the applicant had failed to obey the order after being given one further opportunity. The Judge determined that the sentence of 12 months imprisonment imposed upon the applicant on 28 January 2016 should be brought into immediate effect.
The applicant’s submissions
The written submissions lodged on behalf of the applicant contend that the Judge failed to give sufficient weight to the following matters:
·The other available and more appropriate sentencing options;
·The fact that the applicant had almost completed the term of his recognisance without offending; and
·The ongoing need of the applicant for rehabilitation.
The oral submissions made by counsel acknowledge that the Judge had not made a process error. However, it is contended that the bringing into effect of the sentence of 12 months imprisonment was manifestly excessive. In addition to the three matters referred to in the previous paragraph, counsel sought to support that contention by making an application for the Court to receive further evidence concerning the applicant’s migration status. The further evidence comprised a letter from Mr Matthew Thompson, the solicitor acting for the applicant in respect of his migration status. The content of that letter is described in further detail below.
The application to have further evidence admitted should have been supported by an affidavit explaining why the information about the applicant’s migration status was not put before the sentencing Judge. Nevertheless, the Court received this information de bene esse. Because of the conclusions I have reached as to the disposition of the application, it is unnecessary to decide whether this additional information should be received as fresh or further evidence.
Cancellation of the applicant’s visa
The information provided to the Court from the bar table suggests that the applicant’s previous solicitors were not aware that he is not an Australian citizen and that he has been residing in Australia pursuant to a resident return visa. Thus, his former legal advisors were not aware of the possibility that his visa might be cancelled if he were sentenced to serve a term of imprisonment of at least 12 months. It is further suggested that the applicant was also not aware of the possibility of visa cancellation.
The Court was informed that the applicant was born in Berlin when his father was working in the British Embassy. He moved to Adelaide with his family when he was aged six years. He has never lived in the United Kingdom, although he is a British citizen.
The letter from Mr Thompson to the applicant’s solicitor is dated 18 May 2018, i.e. a few days before the hearing of this application for permission. Mr Thompson states that the applicant is a British citizen. Until 13 February 2018 he held a five year resident return visa. On that date the visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth).
The effect of s 501(3A) is that the Minister for Immigration or his delegate must cancel a visa held by a non-citizen if that person is found to have a “substantial criminal record” and is serving a sentence of imprisonment. Section 501(7)(c) provides that a person has a “substantial criminal record” if they are sentenced to a term of imprisonment of at least 12 months.
Mr Thompson further stated that s 501CA of the Migration Act confers a power to revoke the cancellation of a visa if the Minister (or his delegate) is satisfied that the visa holder “passes the character test” or there is another reason why the decision to cancel the visa should be revoked. Mr Thompson has stated that on 13 March 2018 he submitted an application to the Department of Home Affairs on the instructions of the applicant requesting that the cancellation of his visa be revoked. It was conceded that the applicant did not pass the character test but submitted that there were numerous reasons why the decision to cancel the visa should be revoked. The application is still being considered by the Department of Home Affairs. Mr Thompson stated that the Department is not required to make a decision within a specified timeframe, nor is the Department willing to indicate the likely timeframe.
Mr Thompson has also contended that if the term of imprisonment that the applicant is required to serve is reduced on appeal to below 12 months he will no longer be automatically held to have a “substantial criminal record” within the meaning of the Migration Act. Mr Thompson has stated that, in his opinion, the prospect of the cancellation of the applicant’s visa being revoked would be dramatically increased in those circumstances.
The respondent’s submissions
The respondent submits that the Judges’ discretion under s 20A(5)(c) of the Crimes Act was enlivened by her Honour’s finding that the breaches of the recognisance release order by the applicant were committed without reasonable cause or excuse. There was no process error of the type identified in House v The King.[4] The complaint by the applicant that the Judge failed to give sufficient weight to the three matters referred to at [19] above is contrary to the finding by the majority of the Full Court in R v Lutze that a submission that too little weight was given to a particular factual matter does not, of itself, justify appellate intervention.[5]
[4] (1936) 55 CLR 499.
[5] (2014) 121 SASR 144 at [45]-[47], Vanstone and Parker JJ.
The respondent further submits that the failure by the applicant to take advantage of the leniency he received on 17 March 2017 following earlier breaches when the recognisance release order was extended warranted a sentence that gave appropriate weight to personal deterrence. The respondent also submits that it is not reasonably arguable that the activation of the suspended sentence of 12 months imprisonment was disproportionate to the breaching conduct. The applicant came before the Court following a series of breaches that commenced 12 days after his recognisance release order had been extended. He was clearly warned on 17 March 2017 about the consequences of further breaches. He stated that he understood the warning. In that light the respondent submits that the applicant has demonstrated little commitment to rehabilitation.
The respondent also submits that the applicant was represented by counsel on three separate occasions prior to this appeal, i.e. at sentencing on 28 January 2016, on 17 March 2017 when the recognisance release order was extended and on 19 December 2017 when the recognisance release order was revoked. The submission that the applicant now seeks to advance in relation to his migration status could have been made on any of those three occasions.
The respondent also submits that on the present state of the authorities it is uncertain as to whether or not the prospect of deportation from Australia may be taken into account when determining sentence. The respondent submits that the decision of the Court of Criminal Appeal in R v Berlinsky[6] to the effect that the prospect of deportation is an irrelevant consideration in sentencing remains good law and should be followed. Notwithstanding that authority, the respondent also submits that the possibility of deportation is, at present, merely speculative. On that basis, regardless of which line of authority is correct, the possibility of deportation cannot be taken into account.
Consideration
[6] [2005] SASC 316.
The visa issue
As the respondent correctly noted in its submissions, there are two lines of authority in this Court as to whether the prospect of deportation may be taken into account for sentencing purposes. In R v Berlinsky the Court held that the possibility of deportation was a matter for the Executive Government of the Commonwealth and not relevant as a sentencing consideration. Doyle CJ, with whom Bleby J agreed, also held that it would be wrong for a judge to impose a lesser sentence than otherwise appropriate on the basis that the shorter the sentence imposed, the better the prospect that the Commonwealth Minister or his delegate would not proceed with deportation. The decision in Berlinsky is consistent with a series of decisions in New South Wales and Western Australia.[7]
[7] Dauphin v The Queen [2002] WASCA 104; Houghton v The State of Western Australia (2006) 32 WAR 260; Cohen v The State of Western Australia (No. 2) (2007) 180 A Crim R 348; Ponniah v The Queen [2011] WASCA 105; Hickling v The State of Western Australia [2016] WASCA 124; R v Latumetan and Murwanto [2003] NSWCCA 70; R v Van Hong Pham [2005] NSWCCA 94; R v Mirzaee [2004] NSWCCA 315; Ali v R [2014] NSWCCA 45.
I note that when Berlinsky was decided s 501 of the Migration Act empowered, but did not require, the Minister to cancel a visa when the holder had a “substantial criminal record” and was serving a sentence of imprisonment.[8] Now the Minister must cancel the visa but has a discretion under s 501CA of the Migration Act to set aside the cancellation after hearing submissions.
[8] The terms of the Migration Act as it then stood are referred to in Berlinsky at [23].
More recently, in R v Zhang the South Australian Court of Criminal Appeal followed the different approach adopted in Victoria and in Queensland.[9] Chivell AJ, with whom Kourakis CJ and Vanstone J agreed, adopted with approval the approach taken by the Queensland Court of Appeal in R v Schelvis which requires that the risk of deportation must be assessable rather than merely speculative before it may be taken into account by way of mitigation.[10] The Queensland decision followed a judgment of the Victorian Court of Appeal in Guden v R.[11]
[9] [2017] SASCFC 5.
[10] [2016] QCA 294 at [81]-[82], Fraser JA, Morrison JA and Peter Lyons J agreeing. I note that a subsequent decision by the Queensland Court of Appeal comprising Fraser and Philippides JJA and Jackson J in R v Asaad [2017] QCA 108 at [59]-[60] is arguably inconsistent with the approach taken in R v Schelvis. In that case, the appellant contended that the sentencing Judge gave insufficient weight to the serious punishing consequence of probable deportation following his imprisonment. Fraser JA, Philippides JA and Jackson J agreeing, held that there was no express evidence before the sentencing Judge to show that deportation would result in a hardship for the appellant. As such, there was no basis for thinking that the sentencing Judge attributed so little weight to “suggest an error of principle”. Fraser JA did not refer to his Honour's own judgment in R v Schelvis.
[11] (2010) 28 VR 288.
The question of the relevance of possible deportation to sentencing came before the Court of Criminal Appeal in R v Leka.[12] Stanley J, with whom Peek and Hinton JJ agreed, observed that Zhang may have been decided per incuriam as no reference was made to the earlier decision in Berlinsky.[13] I note that Berlinsky does not appear to have been drawn to the Court’s attention. Stanley J concluded that it was not necessary to resolve the conflict between the authorities in this State and interstate as the appeal could be decided on other grounds.[14]
[12] [2017] SASCFC 77.
[13] Ibid at [29].
[14] Ibid.
The relevance of deportation to sentencing again came before the Court of Criminal Appeal in R v Taheri.[15] Nicholson J, with whom Kourakis CJ and Peek J agreed, noted the conflicting approaches but found that it was unnecessary to resolve the question as the appeal could be decided on other grounds.[16]
[15] [2017] SASCFC 115.
[16] Ibid at [42].
I also consider that it is unnecessary to resolve the conflict between Berlinsky and Zhang. The approach adopted in Berlinsky (and also in New South Wales and Western Australia) is that the prospect of deportation is not a relevant consideration in sentencing. The alternative approach adopted in Zhang (and also in Victoria and Queensland) is that the prospect of deportation will be a relevant consideration if “the risk of removal from Australia … [is] assessable rather than merely speculative”.[17]
[17] R v Schelvis [2016] QCA 294 at [72], Fraser JA, Morrison JA and Peter Lyons J agreeing.
In the present case Mr Thompson’s letter indicates that the Department of Home Affairs is still considering the request that the Minister or his delegate exercise the power under s 501CA of the Migration Act to revoke the cancellation of the applicant’s visa. The Court cannot speculate about a decision that is still to be made by the Commonwealth Minister or his delegate. Thus, the likelihood of the applicant being deported from Australia is, on the information before the Court, not assessable. For that reason it is immaterial which of the two lines of competing authority is correct. On either view, the risk of deportation cannot be taken into account in determining the Court’s response to the applicant’s repeated breaches of the recognisance release order. I do not consider that the amendments to the Migration Act I have referred to at [33] affect the position as the decision on cancellation still lies with the Minister.
The sentencing discretion
Section 20A(5)(c)(ic) of the Crimes Act provides that if a person who has been released on a recognisance release order breaches the order, the court may revoke that order and make an order under s 20AB. The latter provision permits a court to make use of sentencing alternatives available under the law of a participating State or a Territory where the pre-conditions for making of such an order under the corresponding State law are met. A home detention order under the Criminal Law (Sentencing) Act 1988 (SA) is listed in item 6A of reg 6 of the Crimes Regulations 1990 (Cth) as an order that may be made under s 20AB.[18] However, because the Court does not have a discretion under s 20A to suspend the sentence, the decision of this Court in R v Oake establishes that a home detention order is not available.[19] The other types of order referred to in s 20AB and reg 6 were not available in South Australia while the Criminal Law (Sentencing) Act 1988 (SA) was in force. It is not necessary to consider whether the position has been changed by the commencement of the Sentencing Act 2017 (SA) as, for the reasons that follow, I do not consider that the applicant should be re-sentenced.
[18] See ss 20AB(1) and 20AB(1AA) of the Crimes Act 1994 (Cth) and item 6A of reg 6 of the Crimes Regulations 1990 (Cth).
[19] (2017) 128 SASR 260 at [39], Vanstone J, Nicholson and Parker JJ agreeing.
I do not consider that the Judge erred in rejecting the other sentencing options available under s 20A of the Crimes Act and concluding that the applicant should be ordered to serve the original sentence of 12 months imprisonment. That decision was well within the range of sentencing outcomes reasonably available to the Judge in circumstances where the applicant had shown an inability or an unwillingness on multiple occasions to comply with the terms of his recognisance release order, despite acknowledging the consequences of further breaches. I reject the contention that the bringing into effect of the original sentence of 12 months imprisonment was manifestly excessive.
Conclusion
I would grant the application for an extension of time but refuse the applicant permission to appeal.
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