R v Arrowsmith

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.