R v Arrowsmith

Case [2018] SASCFC 47

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 47

Court of Criminal Appeal:       Vanstone J, Nicholson and Parker JJ

  1. VANSTONE J.     I would refuse permission to appeal for the reasons given by Parker J.

  2. NICHOLSON J:   I agree with the orders proposed by Parker J for the reasons his Honour has provided.

  3. 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).

  4. An…

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R v Arrowsmith [2018] SASCFC 47
Case
[2018] SASCFC 47
Decision Date

CaseChat Overview and Summary

The applicant, R v Arrowsmith, sought permission to appeal against a sentence imposed by a Judge of the District Court. The applicant had initially been sentenced to 12 months imprisonment for attempting to import a border controlled precursor, but was released on a recognisance order. He subsequently breached the terms of this order on multiple occasions, leading to the Judge ordering him to serve the original 12-month sentence. The Full Court of the Supreme Court of South Australia was required to determine whether to grant an extension of time for the appeal and, if so, whether the appeal itself should be permitted.

The central legal issue before the Full Court concerned the sentencing of the applicant, specifically whether the prospect of deportation from Australia could be taken into account as a mitigating factor. There were conflicting lines of authority within the Court on this matter. One line, established in *R v Berlinsky*, held that the possibility of deportation was a matter for the Executive Government and irrelevant to sentencing. A more recent decision, *R v Zhang*, adopted an approach from Victoria and Queensland, which allowed the risk of deportation to be considered if it was assessable rather than merely speculative.

The Court noted that the applicant had been granted an extension of time to file his appeal due to circumstances surrounding the notification of the initial refusal of permission to appeal. In considering the substantive appeal, the Court ultimately rejected the applicant's contention that the imposition of the original 12-month sentence was manifestly excessive. The Court found that the Judge had not erred in rejecting alternative sentencing options under s 20A of the Crimes Act, given the applicant's repeated inability or unwillingness to comply with the terms of his recognisance order, despite being warned of the consequences of further breaches. The Court concluded that the sentence imposed was within the reasonably available range.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

VANSTONE J
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.

Ratio Decidendi

Legal Principle Established

Established by: VANSTONE J

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.