R v Fati - [2021] SASCA 99

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)

R v FATI

[2021] SASCA 99
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice S David)
23 September 2021
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - MANUFACTURING, PRODUCING OR CULTIVATING - CANNABIS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - LIABILITY TO DEPORTATION
The Crown appeals against sentence on the basis that the sentencing Judge erred in finding that there was “good reason” to suspend the respondent’s sentence pursuant to s 96(1) of the Sentencing Act 2017 (SA) (the Act) because he was “certain to be deported”.
The respondent, an Italian citizen from Albania, pleaded guilty to two counts of cultivating a commercial quantity of cannabis and one count of cultivating a large commercial quantity of cannabis. The respondent was sentenced to a term of five years, two months and 16 days imprisonment, which was suspended on account of the respondent’s imminent deportation. Less than two weeks later, the respondent was repatriated to Italy.
The respondent was given notice of the appeal but did not appear or brief counsel to appear on his behalf. Accordingly, a contradictor was appointed to represent the respondent’s interests. The Director maintained that permission to appeal should be granted and the appeal should proceed in the respondent’s absence so as to clarify proper sentencing principles for the guidance of sentencing courts.
Held (per the Court), granting permission to appeal, allowing the appeal and remitting the matter for resentence:
1.Section 167(3) of the Criminal Procedure Act 1921 (SA) confers a free-standing grant of power to proceed in the absence of a respondent where there is good reason to do so. The power is not confined to cases where the respondent is in custody. There is in any event an incidental power to proceed in the absence of the respondent in appropriate circumstances.
2.Where a sentence of imprisonment is appropriate, it cannot be avoided by the simple expedient of consenting to deportation. The imposition of a suspended sentence with no condition as to supervision effectively imposed no sentence at all. To exercise the sentencing discretion in this way is so disproportionate to the seriousness of the offending that it undermines public confidence in the administration of justice.
3.Whilst the safety of the community is of paramount importance in sentencing an offender, the sentencing court cannot ignore the secondary purposes of sentencing. The community is protected by a proportionate sentence that reflects the various statutory and common law considerations relevant to the exercise of the sentencing discretion.
4.Appropriate sentencing standards, guided by the Act and common law principles such as equality and consistency in sentencing, must be maintained regardless whether the offender is an Australian citizen or an unlawful non-citizen.

Criminal Procedure Act 1921 (SA) s 150, s 157(1), s 158(7)(a), s 165(1), s 167; Sentencing Act 2017 (SA) s 11(1), s 21(1), s 53(1)(a), s 96(1), referred to.
Everett v The Queen (1994) 181 CLR 295; HT v The Queen (2019) 374 ALR 216; Kroni v The Queen [2021] SASCFC 15; R v Gee (2012) 113 SASR 372; R v Simard [2003] 1 Qd R 76; R v Springer [2009] NSWCA 144; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, discussed.
Commissioner of Police v Tanos (1958) 98 CLR 383; Coulter v The Queen (1988) 164 CLR 350; Electric Light and Power Supply Corporation Ltd v Electricity Commission (NSW) (NSW) (1956) 94 CLR 554; Elliott v Harris (No 3) (1976) 13 SASR 516; Green v The Queen (2011) 244 CLR 462; Griffiths v The Queen (1977) 137 CLR 293; Guden v The Queen (2010) 28 VR 28; Hili v The Queen (2010) 242 CLR 520; Hogan v Hinch (2011) 243 CLR 506; House v The King (1935) 55 CLR 499; In re The Judiciary Act 1903-1920 (1921) 29 CLR 257; International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319; J v Lieschke (1987) 162 CLR 447; Jenkins v Whittington [2017] NTSC 65; KRM v The Queen (2001) 206 CLR 221; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; Leeth v The Commonwealth (1992) 174 CLR 455; Moran v The Queen (2020) (2020) 136 SASR 504; Owners of “Shin Kobe Maru” v Empire Shipping (1994) 181 CLR 404; Plaintiff M47/2012 v The Director-General of Security (2012) 251 CLR 1; PT Bayan v BCBC Singapore (2015) 258 CLR 1; R v Arrowsmith [2018] SASCFC 47; R v Bahrami [2020] SASCFC 111; R v Berlinsky [2005] SASC 316; R v Buckman (1988) 47 SASR 303; R v Buttigieg [2020] SASCFC 38; R v Harradine (2019) 134 SASR 68; R v Jacques [2021] SASCA 94; R v Locke; R v Peterson (1973) 6 SASR 298; R v Nemer (2003) 87 SASR 168; R v Okedare [2014] 3 All ER 109; R v Olbrich (1999) 199 CLR 270; R v Skinner (2016) 126 SASR 120; R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361; R v Young (2016) 126 SASR 41; R v Osenkowski (1982) 30 SASR 212; Rendic v The Queen [2021] SASCA 23; Rossiter v Adelaide City Council [2020] SASC 61; South Australia v Totani (2010) 242 CLR 1; TAN v The Queen (2011) 35 VR 109; Tognolini v The Queen (2011) 32 VR 104; Vakauta v Kelly (1989) 167 CLR 568; Veen v The Queen (No 1) (1979) 143 CLR 458; Veen v The Queen (No 2) (1988) 164 CLR 465; Wainohu v New South Wales (2011) 243 CLR 181; Wong v The Queen (2001) 207 CLR 584, considered.

R v FATI
[2021] SASCA 99
Court of Appeal – Criminal: Livesey P, Doyle and David JJA
The Court:
Introduction

This Crown appeal against sentence is unusual because the respondent has already been deported to Italy. Having been given notice of the appeal, the respondent has shown no interest in appearing or briefing counsel to appear. That is unsurprising as he is not now at any immediate risk of imprisonment. A contradictor was appointed to represent the respondent’s interests. The Director maintains that permission to appeal should be given and the appeal should be allowed so as to clarify proper sentencing principles for the guidance of sentencing courts.
The respondent’s sentence of imprisonment was suspended after he pleaded guilty to three offences involving the cultivation of commercial and large commercial quantities of cannabis between 2013 and 2015. The question raised by the appeal is whether it was appropriate for the sentencing Judge to find “good reason” to suspend the sentence pursuant to s 96(1) of the Sentencing Act 2017 (SA) (the Act) on the basis that the respondent was certain to be deported.
For the reasons that follow, permission to appeal should be granted and the appeal allowed.
The charged offending, immigration detention and sentence
On 13 April 2021, the respondent pleaded guilty to the following offences concerning the cultivation of three separate crops of cannabis between 2013 and 2015:
1.Count 1 concerned the cultivation of a commercial quantity of cannabis at Croydon Park, contrary to s 33B(2) of the Controlled Substances Act 1984 (SA), for which the maximum penalty is a fine of $200,000 or imprisonment for 25 years, or both.
2.Count 2 concerned the cultivation of a large commercial quantity of cannabis at Croydon, contrary to s 33B(1) of the Controlled Substances Act 1984 (SA), for which the maximum penalty is a fine of $1 million or imprisonment for life, or both.
3.Count 3 concerned the cultivation of a commercial quantity of cannabis at Camden Park, contrary to s 33B(2) of the Controlled Substances Act 1984 (SA), for which the maximum penalty is a fine of $200,000 or imprisonment for 25 years, or both.
The prosecution entered a nolle prosequi on a fourth count.
The respondent was initially committed for trial in the District Court on 30 June 2017 and then arraigned on 18 August 2017 on the first three counts. The respondent was arraigned on the fourth count on 9 May 2019, after which the four counts were made the subject of a new Information on 29 May 2020, listed for trial in the District Court on 3 May 2021.
The respondent was granted bail after arrests for the first three counts, but spent six days in custody after being arrested for the fourth count on 2 January 2018, after which he was again granted bail.
On 19 March 2021, the respondent was taken into immigration detention by the Australian Border Force. Negotiations over a resolution of the counts soon finalised. On 23 March 2021, the respondent applied for voluntary removal under s 198 of the Migration Act 1958 (Cth), which was likely to result in deportation as soon as was practicable. On learning that there was no criminal justice stay visa, the prosecution applied for revocation of bail. That was heard on 13 April 2021, together with an application by the respondent for expedited arraignment and sentence.
On 13 April 2021, the sentencing Judge was told that the application for a criminal justice stay visa had been sought by SAPOL, but not yet finalised. The prosecution submitted that, were bail revoked, the respondent would likely be granted a bridging visa on criminal detention grounds: in practice, the respondent would be transferred from immigration detention to a State Corrections facility. The sentencing Judge suggested that the Australian Border Force be contacted. After a short adjournment, the Court was told by respondent’s counsel that the respondent would withdraw his request for deportation, and to “avoid issues about … no criminal justice stay … in place … he will remain in immigration detention pending the resolution of this matter”.
The prosecutor, however, emphasised that this would not avoid involuntary deportation and whilst the criminal justice stay visa was awaited, bailed should be revoked to facilitate the respondent’s transfer to a State institution.
The sentencing Judge refused to revoke bail, but agreed to immediately arraign the respondent, take the agreed pleas of guilty and set 21 April 2021 as the date for sentencing submissions.
On that day, the sentencing Judge was told that the respondent was certain to be deported and that there was, therefore, “good reason” to suspend because there was “no utility” to serving a prison sentence in Australia “when it is known that [he] will be deported straight away”. As deportation was imminent, the authorities on the relevance of deportation to sentencing were distinguished. As will be seen, the sentencing Judge accepted that distinction and later, over the opposition of the prosecution, suspended the sentence.
The following day, the sentencing Judge proceeded to sentence. Aspects of her remarks will later be addressed. The sentencing Judge imposed one sentence for counts 1 and 2 under s 26 of the Sentencing Act 2017 (SA), being imprisonment for four years. On count 3, the sentencing Judge imposed a sentence of 18 months, to be served cumulatively. The resulting sentence of five years and six months was reduced by 5 per cent on account of the guilty pleas, and by a further 6 days for time spent in custody, resulting in an overall head sentence of five years, two months and 16 days.
That sentence was suspended upon entry into a bond to be of good behaviour for 12 months. No supervision conditions were included in the bond.
The respondent renewed his application for voluntary removal later that day. On 4 May 2021, the respondent was repatriated to Italy, to be joined by his wife and children.
The circumstances of the offending
In July 2015, the respondent was directed to attend the Sturt police station to have his fingerprints taken. He did not attend. A warrant was issued and finally executed on 23 August 2016. Following analysis of the respondent’s fingerprints, he was arrested in relation to count 3 on 5 October 2016 and, on 31 October 2016, he was arrested in relation to counts 1 and 2.
Count 1 concerned the period September to December 2013 and concerned a crop of 61 plants at Croydon Park – 30 of them being immature and 31 being mature, but heavily pruned. Some of the plants recently harvested showed signs of regrowth. There were 96 light shades and globes, 117 electrical transformers and four large carbon filters found at the Croydon Park address. The respondent’s fingerprints were detected on two of the light shades. The electricity supply had been diverted and there were, in addition, chemicals, rubber gloves and dust masks found. Two masks and a pair of gloves were tested for DNA which matched the respondent. His DNA was also found on two drink bottles found on a table in the premises. This crop had been discovered by police on 7 December 2013.
Count 2 concerned the period September to December 2013 and a crop at Croydon which was discovered by police on 16 December 2013. At that house, there were 123 cannabis plants at various stages of growth and 21 were located in four rooms. A further 67 plants were found in a cellar and 35 were in rockwool in the pantry. Around the house were electrical transformers, light shades, globes and carbon filters. Again, the electrical supply had been diverted. The respondent’s fingerprints were found on two of the transformers and his DNA was detected on a cigarette butt and two face masks.
Count 3 concerned conduct between November 2014 and January 2015 at a hydroponic facility at a house in Camden Park. Police discovered that crop in January 2015 and found 20 plants. One room contained 16 plants, light shades and globes. Another room contained four plants with 15 light shades and globes. There were electrical transformers and carbon filters in the home. Again, electricity had been diverted. The respondent’s fingerprints were detected on one of the electrical transformers and his car was parked outside the house.
The potential yield of the plants the subject of count 1 was around $206,000, for count 2 around $432,000 and for count 3 around $60,000.
The respondent was sentenced on the basis that he was not the instigator of these crops, but that he was involved in setting them up as well as maintaining and harvesting them.
The circumstances of the offender
Although originally from Albania, the respondent illegally entered Italy to escape poverty, became an Italian citizen, married and had a daughter. The respondent and his first wife divorced.
The respondent initially came to Australia on a tourist visa between 2012 and January 2013. He returned in February 2013 and applied and obtained a student visa. The respondent’s student visa was due to expire in February 2015 and an application for a further visa was refused. The respondent was on a bridging visa until November 2019.
At the time of sentence, the respondent was in immigration detention as an unlawful non-citizen.
By way of mitigation, the sentencing Judge accepted that, whilst in Australia, the respondent was reliant upon the Albanian community who had asked him to become involved in the various cannabis crops. The sentencing Judge also accepted that the respondent had no relevant prior convictions and had never previously been sentenced to any term of imprisonment.
At the time of sentencing, the respondent was married to a Hong Kong citizen and together they had two children. The children are now aged two years and about ten months.
The sentencing Judge was told that, subject to these proceedings, the respondent would be deported and that he planned to live in Italy with his wife and two children.
The sentencing remarks
Given the seriousness of the offending, the sentencing Judge said that there was “no doubt” that a term of imprisonment was required.
The sentencing Judge imposed a notional sentence of three years imprisonment on count 1, and five years imprisonment on count 2. Because the plants were being grown “more or less simultaneously, albeit at different house locations”, the sentencing Judge ordered partial concurrency and, pursuant to s 26 of the Act, imposed one sentence of four years.
For count 3, the respondent was sentenced to 18 months imprisonment, cumulative upon the earlier sentence. The reduction of five per cent was made on account of the guilty pleas because the sentencing Judge found that there was “good reason for so doing”.
The sentencing Judge did not consider that the respondent was a “serious repeat offender” because she found that the three serious offences were not all committed on separate occasions. She found that counts 1 and 2 were committed in the same period of time, albeit at different houses. Accordingly, the sentencing Judge found that she was not constrained to impose a minimum non‑parole period of four-fifths of the head sentence. As the sentencing Judge explained it:
In fixing a non-period and taking into account your personal circumstances, particularly that you have no relevant prior convictions and you have never been sentenced to imprisonment before, I fix a relatively low non-parole period of two years and seven months. I will give you credit for six days in custody, which makes the non-parole period two years, six months and 24 days.
On the question of suspension, her Honour explained:
Your counsel has asked me to find good reason to suspend your sentence. The main basis put forward to me is your certain deportation. It is put to me that there is no utility in you remaining in this country to serve a period of imprisonment, when it is known that you will be deported straight away. In that way, your counsel distinguishes the legal authorities in this jurisdiction about the relevance of deportation in sentencing. I agree with her submission that those authorities can be distinguished in that way.
A reading of the transcript suggests that the reference to “the relevance of deportation in sentencing” is a reference to the proposition in cases such as R v Arrowsmith in which the Court of Criminal Appeal had held that the risk of deportation was either irrelevant or speculative and incapable of being assessed and, on each approach, could not be taken into account.[1] Subsequently, in Kroni v The Queen it was held that the risk of deportation may be relevant in a general way, provided the prospect is not merely speculative and it is shown that deportation would involve hardship.[2]
[1] R v Arrowsmith [2018] SASCFC 47.
[2] Kroni v The Queen [2021] SASCFC 15, [13]-[15] (Kourakis CJ), [226]-[229] (Livesey J, with whom Doyle J agreed).
It would appear that in the passage just cited, the sentencing Judge accepted that the respondent’s case was distinguishable because deportation was certain and imminent, not merely speculative. On that basis, it was contended by the respondent’s counsel that this provided good reason to suspend any sentence. The prosecution opposed suspension, as the sentencing Judge recognised:
The prosecution opposes the suspension of your sentence. The prosecution submits that general deterrence is an important consideration in sentencing you. I agree that it is. However, the paramount consideration is the protection of the safety of the community. If you are no longer in this country, that must necessarily mean that the community is protected from any further offending by you in the future. Of course, the need for you to be punished is another factor in sentencing, but is not the paramount factor. One view could be taken that you are simply escaping gaol by being deported and should not be allowed to do so. I do not want to send the wrong message to people here on a Visa, namely that they can commit criminal offences and then avoid gaol by simply being sent back home. I note however, that you have connections to Australia and that you've been here for a number of years. I must say, if your involvement had been at a higher level, and if you had relevant prior convictions, my decision about your sentence may have been different today.

Ultimately, however, the sentencing Judge agreed that there was “little utility in keeping you here in gaol”. Critically:
Overall, however, I agree with your counsel’s submissions, that there seems to be little utility in keeping you here in gaol. Your imminent deportation will achieve the paramount consideration in sentence; mainly protecting the community from any future offending by you.
Accordingly, the sentencing Judge found that there was good reason to suspend and she suspended the sentence. Though mandatory conditions were necessarily part of the bond, there were no conditions requiring supervision given the imminent deportation. The address given on the bond was the Kilburn Immigration Detention Centre at 55-65 Garland Avenue, Kilburn.
Crown appeals against sentence – the absent respondent
The principles applicable to Crown appeals against sentence are well known. There is no need to repeat them.[3]
[3] See generally, R v Buttigieg [2020] SASCFC 38; R v Bahrami [2020] SASCFC 111; R v Jacques [2021] SASCA 94.
Nonetheless, the contradictor emphasised that the grant of permission is reserved for the “rare and exceptional case”.[4] To this the Director responded that this was a case where the approach of the sentencing Judge betrayed a significant error of principle as to the relevance of deportation and as to the way in which the protection of the safety of the community should be addressed. The Director submitted that there had been a failure to properly apply the common law principle of proportionality, relying on s 10(1)(a) of the Act and Veen v The Queen (No 1),[5] affirmed in Veen v The Queen (No 2).[6]
[4]     Everett v The Queen (1994) 181 CLR 295, 299 (Brennan, Deane, Dawson and Gaudron JJ).
[5]     Veen v The Queen (No 1) (1979) 143 CLR 458, 467 (Stephen J), 467-468 (Mason J), 482-483 (Jacobs J).
[6]     Veen v The Queen (No 2) (1988) 164 CLR 465, 472 (Mason CJ, Brennan, Dawson and Toohey JJ): “a sentence should be "proportionate to the gravity of the offence" unless, perhaps, the applicant's history warrants some departure from the principle… the appropriate … sentence [is determined] by reference to all the circumstances of the case”.
The principal issue confronting the Director’s application for permission is the absence of the respondent. He is in Italy. In Commissioner of Police v Tanos, Dixon CJ and Webb J said:[7]
… it is a deep-rooted principle of the law that before anyone can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceedings he must be afforded an adequate opportunity of being heard.
[7] Commissioner of Police v Tanos (1958) 98 CLR 383, 395.
Procedural fairness is a defining characteristic of any court.[8] It is usually inappropriate to proceed in the absence of a defendant, whether that be at trial, when sentencing, or on appeal. The requirement that the defendant be present is not, however, immutable:[9] the question is whether the defendant has been given a reasonable opportunity to be heard.[10]
[8] International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319, [54] (French CJ), [141] (Heydon J); South Australia v Totani (2010) 242 CLR 1, [62] (French CJ); Wainohu v New South Wales (2011) 243 CLR 181, [44] (French CJ and Kiefel J); Hogan v Hinch (2011) 243 CLR 506, [45] (French CJ); Leeth v The Commonwealth (1992) 174 CLR 455, 470 (Mason CJ, Dawson and McHugh JJ).
[9] See, in the case of a summary trial, where a defendant remained mute and refused to plead: Rossiter v Adelaide City Council [2020] SASC 61, [15]-[27] (Livesey J).
[10] HT v The Queen (2019) 374 ALR 216, [17]-[18] (Kiefel CJ, Bell and Keane JJ).
What comprises a “reasonable opportunity to be heard” will turn on the nature of the jurisdiction and the range of competing interests to be balanced.[11] When determining whether an opportunity to be heard in a particular case is fair, “the whole of the circumstances in the field of inquiry are of importance” and “[t]he nature of the jurisdiction exercised and the statutory provisions governing its exercise are amongst those circumstances”.[12]
[11] J v Lieschke (1987) 162 CLR 447, 457 (Brennan J).
[12] Coulter v The Queen (1988) 164 CLR 350, 356 (Mason CJ, Wilson and Brennan JJ).
The contradictor emphasised that the Director had not led evidence about the steps, if any, taken to expedite obtaining the criminal justice stay visa. Whilst the Director accepted that no evidence had been led, it was common ground that a visa had been sought and neither side was in a position to indicate what evidence might have been available.
The right to appeal against a sentence imposed upon conviction is conferred by s 157(1)(iii) of the Criminal Procedure Act 1921 (SA).[13] The Director of Public Prosecutions may appeal against sentence passed on the conviction on any ground with the permission of the Court of Appeal.
[13] It is not a common law right: Lacey v Attorney-General (Qld) (2011) 242 CLR 573, [8] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
In this case, and on reflection, the Director did not press for resentence by this Court under s 158(7)(a)(i) in the event that permission were granted and the appeal allowed. Rather, he sought remittal under s 158(7)(a)(ii) of the Criminal Procedure Act 1921 (SA). Whilst the contradictor contended that resentence was not available by reason of s 21(1) of the Act,[14] the Director’s submission was that this Court is not constrained by either s 21(1) of the Act, or s 150 of the Criminal Procedure Act 1921 (SA).[15]
[14] Sub-section 21(1) of the Act provides in part: “… a defendant who is to be sentenced for an indictable offence must be present when the sentence is imposed and throughout all proceedings relevant to the determination of sentence”.
[15] The predecessor for which was s 340 of the Criminal Law Consolidation Act 1935 (SA). See generally, Lacey v Attorney-General (Qld) (2011) 242 CLR 573.
As with any grant of judicial power, there is a concomitant duty to exercise the power where it is properly engaged.[16] In addition, the express grant of power carries with it an implied power to do all that is necessary to effect the purpose of the express grant.[17] Nonetheless, the requirement that the Director seek and obtain permission represents an important fetter, confining the exercise of the right to appeal to well recognised situations where it is appropriate to grant permission.[18]
[16] BHP Billiton v Schultz (2004) 221 CLR 400, [11] (Gleeson CJ, McHugh and Heydon JJ).
[17] Plaintiff M47/2012 v The Director-General of Security (2012) 251 CLR 1, [48] (French CJ) and the authorities cited.
[18] Griffiths v The Queen (1977) 137 CLR 293; Everett v The Queen (1994) 181 CLR 295; Lacey v Attorney-General (Qld) (2011) 242 CLR 573.
Under s 165(1) of the Criminal Procedure Act 1921 (SA), an appeal to the Court of Appeal, or an application for permission to appeal to the Court of Appeal, must be made in accordance with the appropriate rules of court. Section 165(1) and any relevant rules made under it operate as further fetters on the right of appeal granted under s 157(1)(iii) of the Criminal Procedure Act 1921 (SA). Neither the Supreme Court Criminal Rules 2014 (SA) nor the Supreme Court Criminal Supplementary Rules 2014 (SA) address the circumstances of this case. However, s 167 of the Criminal Procedure Act 1921 (SA) provides:
Presence of appellant or respondent on hearing of appeal
(1) The Supreme Court may make rules with respect to the presence in court of an appellant or respondent who is in custody during—
(a)     the hearing of the appeal; or
(b)     the hearing of an application for permission to appeal; or
(c)     any proceedings preliminary or incidental to an appeal.
(2)     Without limiting subsection (1), the rules of court may (for example)—
(a)     provide that the appellant or respondent may be present during the hearing of an appeal or an application for permission to appeal, or a proceeding preliminary or incidental to an appeal—
(i)      in person; or
(ii)     by means of an audio-visual link; or
(iii)    by means of an audio link; and
(b)     provide that the appellant or respondent may not be present during any such hearing or proceeding.
(3) Despite any rule to the contrary, the Court of Appeal may, if the Court considers there is good reason to do so, proceed with the hearing of an appeal or an application for permission to appeal, or a proceeding preliminary or incidental to an appeal, in the absence of the appellant or respondent.
Section 167 was previously s 361 of the Criminal Law Consolidation Act 1935 (SA). Section 361 was inserted in 2016 by the Statutes Amendment (Courts and Justice Measures) Act 2016 (SA). The predecessor to s 361 had dealt with the physical presence of the appellant at the hearing of an appeal. Section 361 was considered in R v Gee, which was concerned with whether commencing a trial in the absence of a defendant (due to him absconding) impermissibly interfered with the institutional integrity of the Court.[19] The Court held, by a majority, that there is no reason in principle to distinguish between the cases of a defendant who is voluntarily absent before the trial, and a defendant who absconds during the course of a trial and that, in either case, the trial Judge retains a discretion to proceed with the trial in the absence of the defendant. Nonetheless, this discretion must be exercised with caution.
[19] R v Gee (2012) 113 SASR 372 (Gray and Sulan JJ, Peek J dissenting),
The decision of the New South Wales Court of Criminal Appeal in R v Springer shares some similarities with the facts of this case. That case was also a Crown appeal against sentence in circumstances where the respondent had been deported before the hearing of the appeal. The respondent was not represented in any capacity at the appeal. The Court in that case found that this was not an impediment to the hearing of the appeal, based on the Criminal Appeal Act 1912 (NSW) which provided that the Court of Criminal Appeal may pass sentence in the absence of the respondent to the appeal if the Court is satisfied that the respondent has been given notice of the date on which the appeal has been heard and it would not be unjust to deal with the appeal and pass sentence in the absence of the respondent.[20]
[20] R v Springer [2009] NSWCA 144 (James J, with whom McClellan CJ at CL and Simpson J agreed).
A grant of judicial power is generally to be read as broadly as the language of the grant may reasonably bear.[21] Nonetheless, the principle of legality provides protection from statutory encroachment upon the duty to observe procedural fairness. Unless the intention is made unambiguously clear, it is presumed that Parliament does not intend to exclude procedural fairness. As the High Court said in Saeed v Minister for Immigration and Citizenship:[22]
The presumption that it is highly improbable that Parliament would overthrow fundamental principles or depart from the general system of law, without expressing its intention with irresistible clearness, derives from the principle of legality …
[21] Owners of “Shin Kobe Maru” v Empire Shipping (1994) 181 CLR 404, 421 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ); PT Bayan v BCBC Singapore (2015) 258 CLR 1, [29] (French CJ, Kiefel, Bell, Gageler and Gordon JJ).
[22] Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, [15] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).
The power conferred by s 167(3) is clear in its terms. It represents a free‑standing grant of power to proceed in the absence of the respondent where there is good reason to do so. The exercise of the power is not confined to cases where the respondent is in custody.[23]
[23] Cf ss 167(1) and (2) which would appear to be confined to cases where the defendant is in custody.
In Electric Light and Power Supply Corporation Ltd v Electricity Commission (NSW), it was held that, where legislation refers a particular matter for hearing and determination to an existing court established as part of the judicial system of the State:[24]
… unless and except in so far as the contrary intention appears … it is to the court as such that the matter is referred exercising its known authority according to the rules of procedure by which it is governed and subject to the incidents by which it is affected …
[24] Electric Light and Power Supply Corporation Ltd v Electricity Commission (NSW) (1956) 94 CLR 554, 559 (Dixon CJ, McTiernan, Williams, Webb, Fullagar, Kitto and Taylor JJ).
To proceed in this way may properly be considered an incident of the grant of judicial power:[25]
Thus a judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons.
[25] R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, 374 (Kitto J). See also Jenkins v Whittington [2017] NTSC 65.
That is, the decision must not be merely advisory or the issue hypothetical.[26] In R v Okedare the submission that an appeal should not proceed was rejected, even where the appeal was instituted on behalf of an offender who had absconded:[27]
… there are bound to be circumstances where the court would wish to intervene in the interests of justice, for example the court would not wish to countenance the possibility of an unlawful sentence being allowed to stand simply because an offender has absconded. The court should not deny itself the power to correct a glaring error…
[26] See In re The Judiciary Act 1903-1920 (1921) 29 CLR 257, 266-267 (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ).
[27] R v Okedare [2014] 3 All ER 109, [27] (Hallett LJ).
In its terms, s 167(3) of the Criminal Procedure Act 1921 (SA) authorises the Court of Appeal to proceed in the absence of the respondent. The power to proceed with an appeal in the absence of the respondent in appropriate circumstances would, in any event, be implied or regarded as incidental to the power to hear the appeal. Provided the respondent has been given notice of the hearing and an opportunity to be heard, and the Court is addressing a real issue which is not merely hypothetical or advisory in nature, it will be a matter for the Court to determine whether it should proceed in the absence of the respondent.
In this case, the respondent has been notified of this appeal and has been given a reasonable opportunity to be heard. It may safely be presumed that he does not wish to appear or be involved. He may be taken to have waived his right to appear.[28] The respondent’s interests are, in any event, properly represented by an independent contradictor. The Court was assisted by senior counsel pressing all appropriate arguments.[29]
[28] Whether procedural fairness might be waived was effectively left open in a different context in HT v The Queen (2019) 374 ALR 216, [50] (Kiefel CJ, Bell and Keane JJ). See, in a different context, the waiver of the right to object to ostensible bias: Vakauta v Kelly (1989) 167 CLR 568, 572 (Brennan, Deane and Gaudron JJ), 588 (Toohey J).
[29] Which secures the benefits Heydon J associated with the centrality of hearings in the adversarial system, see International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319, [141]-[145].
Whether under s 167(3) of the Criminal Procedure Act 1921 (SA), or as an incident of the grant of power to entertain an appeal under s 157(1)(iii) of the Criminal Procedure Act 1921 (SA), in the circumstances of this case, it is appropriate for this Court to proceed in the absence of the respondent.
This is a case in which this Court should clarify the applicable sentencing principles for the guidance of sentencing courts given that the exercise of discretion by the sentencing Judge here betrays a serious misapprehension regarding the approach to be taken to imminent deportation.[30] Whilst there is some practical uncertainty about whether a warrant will be issued and the respondent brought back for resentence, that does not mean that this Court is not addressing real questions concerning the rights and obligations of these parties. Whether resentence will soon occur is not, in any event, a reason sufficient to preclude the grant of permission to appeal.
[30] Everett v The Queen (1994) 181 CLR 295, 299-300 (Brennan, Deane, Dawson and Gaudron JJ); R v Osenkowski (1982) 30 SASR 212, 212-213 (King CJ); R v Nemer (2003) 87 SASR 168, [24] (Doyle CJ, with whom Prior and Vanstone JJ relevantly agreed).
More particularly, this case raises an issue which has not previously been addressed by this Court and it is the subject of a ruling which is properly described, with respect, as idiosyncratic.
Disposition of the appeal
There was in this case no “good reason” to suspend the sentence under s 96(1) of the Act because of imminent deportation. To proceed in that way involved an error of law that vitiated the exercise of the sentencing discretion.[31]
[31] House v The King (1935) 55 CLR 499, 505.
When one pays careful regard to the circumstances of the offending and the offender, this is not a case in which it was at all obvious that there was good reason to suspend, regardless of the specific errors made by the sentencing Judge concerning the prospect of imminent deportation. It may be accepted that the respondent had no prior convictions and performed a relatively subservient role in the three crops the subject of the charges to which he pleaded guilty. It may also be accepted, at a general level, that deportation involved some hardship. However, there was little or no evidence to suggest the existence of any other mitigating factors. For example, there was no real basis to conclude that there was remorse or contrition, there were no submissions made or evidence led of good character and nothing was cited which suggested that, with the benefit of a suspended sentence, the respondent was likely to rehabilitate and refrain from reoffending.[32] Nor was there any evidence that the respondent had rehabilitated since the offending between 2013 and 2015. The sentencing remarks were silent as to these and other matters which are usually regarded as relevant to exercising the power to suspend a sentence of imprisonment under s 96(1) of the Act.[33]
[32] Cf Everett v The Queen (1994) 181 CLR 295, 301-303 (Brennan, Deane, Dawson and Gaudron JJ), citing R v Wilton (1981) 28 SASR 362, 367-368 (King CJ, with whom Mitchell and Williams JJ agreed).
[33] R v Skinner (2016) 126 SASR 120, [81]-[83] (Doyle J, with whom Kelly and Blue JJ agreed).
It is well settled that it is wrong in principle to impose a lesser sentence than is appropriate on the basis that “the shorter the sentence the better the prospects of the Minister permitting [a prisoner] to avoid deportation”.[34] Similarly, it is wrong in principle to impose a lesser sentence than is appropriate, such as suspending a sentence, simply because the defendant will soon be deported.
[34] R v Berlinsky [2005] SASC 316, [27] (Doyle CJ, with whom Bleby J agreed).
Whilst a suspended sentence is rightly to be regarded as a real sentence,[35] it gives the offender the chance to prove she or he can lead a law-abiding life. The threat that the sentence of imprisonment will be carried into effect should the bond be breached promotes compliance and reform in the offender.[36] In this case, the bond contains no condition as to supervision but, even if it did, the bond cannot be supervised. Corrections and the Parole Board have no means of knowing whether the bond is being breached. Even if information about the respondent’s activities in Italy could be obtained, in the event of a breach, there could be no effective enforcement of the bond.[37]
[35] Elliott v Harris (No 3) (1976) 13 SASR 516, 527-528 (Bray CJ, with whom Bright and Zelling JJ agreed); R v Locke; R v Peterson (1973) 6 SASR 298, 301-302 (Bray CJ, Mitchell and Sangster JJ).
[36] R v Buckman (1988) 47 SASR 303, 304 (King CJ).
[37] See s 114 of the Act regarding the order that Court may make on breach of a bond.

Where the respondent is at no risk of imprisonment whilst subject to a bond following deportation, the Director’s submission about the ineffectual nature of the suspended sentence is clearly correct: “the suspended sentence becomes no sentence at all”.
The contradictor submitted that, when read as a whole, it cannot be said that the sentencing remarks reveal that the sentence of imprisonment was suspended merely because the respondent was about to be deported. It was submitted that the sentencing Judge simply had regard to this matter, together with hardship, as part of the relevant circumstances. That submission must be rejected. First, this was not a case where, for the reasons already given, suspension was realistically in prospect were it not for the prospect of imminent deportation. Secondly, the passages earlier extracted from the sentencing remarks demonstrate that the “main basis” suspension was ordered was because there was thought to be no utility in requiring that the respondent serve a sentence of imprisonment in Australia when he was about to be deported to Italy.
Properly understood, imminent deportation was the decisive consideration in the exercise of the discretion to suspend.
The sentencing Judge took an erroneous approach to the paramount consideration of the protection of the safety of the community under s 6 of the Act. Respectfully, it is difficult to follow the observations made in the sentencing remarks about safety of the community:
… However, the paramount consideration is the protection of the safety of the community. If you are no longer in this country, that must mean that the community is protected from any further offending by you in the future. Of course, the need for you to be punished is another factor in sentencing, but it is not the paramount factor.
Even if it could be said that the imminent deportation of the respondent adequately addressed community safety, which it does not, that does not mean that the sentencing court can ignore the secondary purposes of sentencing, such as punishment and deterrence. To do so is misconceived.[38] The community is protected by ensuring that appropriate sentences are imposed and not avoided. Whether the respondent is at continued risk of committing crime in South Australia is not the only consideration. Having committed serious crimes, it is necessary that he be punished. As well, general deterrence remains particularly important with offending of this kind because of the recognised capacity of prison sentences to deter those living in our community from engaging in similar, serious crime.[39] That deterrence may well extend to associates of the respondent in this case.
[38] Rendic v The Queen [2021] SASCA 23, [7]-[9] (Lovell JA, with whom Kelly P agreed), [37]-[39] (Bleby JA).
[39] R v Young (2016) 126 SASR 41.
It is important to avoid any narrow view of the ways in which the community is protected by an appropriate sentence imposed in the exercise of a discretion which addresses, to the extent relevant, the sentencing objectives recognised by the Act and at common law. A sentence that is appropriately proportioned to the circumstances of the offender and the offending, and which relevantly meets the various statutory and common law sentencing objectives, will usually best ensure the protection of the community.[40]
[40] Rendic v The Queen [2021] SASCA 23, [7]-[9] (Lovell JA with whom Kelly P agreed).
Whilst the safety of the community is of paramount importance and other considerations such as punishment and deterrence (whether general or personal) secondary, it is important to maintain appropriate sentencing standards. Those standards must be maintained regardless whether the defendant is an Australian citizen or an unlawful non‑citizen. As McPherson JA said in R v Simard:[41]
It would in my opinion be quite wrong for the sentencing judge to deliberately impose a lesser sentence in order to avoid the possibility of deportation, only to find that the Minister in fact later exercised his discretion to allow the offender to remain in Australia. That would have the consequence of imposing a sentence that was less severe than that visited upon an Australian citizen who was at no risk of deportation. It would produce a regime under which visitors or non-permanent residents were sentenced more leniently than Australians who had committed the same kind of offence. That cannot be a proper result in the administration of justice.
[41] R v Simard [2003] 1 Qd R 76, [6] (McPherson JA with whom Thomas JA and Mullins J agreed).
In Kroni v The Queen, after referring to these observations, the view taken in Guden v The Queen was accepted, namely, that the risk of deportation might, in appropriate cases, provide some scope for leniency:[42]
This passage identifies an important consideration. That is, the question whether it is appropriate that visitors or non-permanent residents at risk of deportation should receive a lesser sentence than Australian citizens who commit the same offences. Whilst there is no reason why Australian citizens should receive harsher sentences for the same crimes, in Guden v The Queen, the Court of Appeal countered that “this is simply an illustration of the infinite variety of personal circumstances which fall for consideration”.[43] The potential difference is between a sentence where personal circumstances provide some scope for leniency and one in which they are absent or offer less scope for leniency.
[42] Kroni v The Queen [2021] SASCFC 15, [221] (Livesey J, with whom Doyle J agreed).
[43] Guden v The Queen (2010) 28 VR 288 (Maxwell P, Bongiorno JA and Beach AJA).
Nonetheless, the principles of equality and consistency in sentencing must be observed. That is, all things being equal, two offenders committing the same crime should receive the same sentence and, in addition, there should be fair and equal treatment at a systemic level.[44] The requirement of consistency in the application of relevant legal principles ensures that like cases are treated alike, and that different cases are treated differently.[45]
[44] Green v The Queen (2011) 244 CLR 462, [28]-[32] (French CJ, Crennan and Kiefel JJ).
[45] Hili v The Queen (2010) 242 CLR 520, [47], [49] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Wong v The Queen (2001) 207 CLR 584, [6] (Gleeson CJ).
In this case, the unlawful non-citizen has been treated far more leniently than would be an Australian citizen convicted of the same crimes. That approach cannot be justified in principle or in the circumstances of this case. The principles of equality and consistency in sentencing have been ignored and undermined. As the sentencing Judge recognised, with respect, correctly:
One view could be taken that you are simply escaping gaol by being deported and should not be allowed to do so. I do not want to send the wrong message to people here on a Visa, namely that they can commit criminal offences and avoid gaol by simply being sent back home.
Suspending the sentence in this case not only “sent the wrong message”, but it was inappropriate. Where a sentence of imprisonment is appropriate, it cannot be avoided by the simple expedient of consenting to deportation. To do so ultimately fails to protect the community. Proceeding in this way undermines the achievement of other sentencing objectives such as punishment and general and personal deterrence. To exercise the sentencing discretion in this way is so disproportionate to the seriousness of the offending that it undermines public confidence in the administration of justice.
In appropriate cases, the risk of deportation may nonetheless be relevant and taken into account as part of a defendant’s personal circumstances.[46] However, in some cases, that risk will be speculative and therefore irrelevant. In other cases, deportation will be highly likely, in which case it may add to the defendant’s anguish and burden. In yet other cases, deportation may be certain, with the consequence that the defendant will lose the right to live in the Australian community. That loss is no less relevant to the determination of an appropriate sentence than the loss of community standing, position or livelihood that may follow from imprisonment, usually considered relevant to an offender’s personal circumstances and taken into account when fashioning a sentence that protects, punishes, deters and reforms.
[46] Kroni v The Queen [2021] SASCFC 15, [13]-[15] (Kourakis CJ), [225]-[228] (Livesey J, with whom Doyle J agreed). The uncertainty and burden of indefinite detention is a separate matter, not raised by the circumstances of this case.
Whilst the loss of the right to live in Australia is usually, and rightly, regarded as a form of general hardship,[47] whether that is actually so may depend on the circumstances of the particular case. Absent evidence or a concession that deportation will be associated with particular hardship, that is not a matter about which a sentencing court can usually take judicial notice or speculate. It is not a matter “known to the court” as the Act requires.[48] As already mentioned, aside from general or presumptive hardship, there was in this case no submission or evidence demonstrating any particular hardship associated with repatriation to Italy.
[47] TAN v The Queen (2011) 35 VR 109, [126] (Redlich JA, with whom Neave JA and Lasry AJA agreed).
[48] See s 11(1) of the Sentencing Act2017 (SA) and R v Olbrich (1999) 199 CLR 270, [17] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
There is one further potential issue in this matter: whether it was appropriate for the sentencing Judge to refrain from sentencing the respondent as a “serious repeat offender”, notwithstanding there were three serious offences within the meaning of Division 4 of Part 3 of the Act, because they were not “committed on separate occasions” as required by s 53(1)(a) of the Act. Before the sentencing Judge, the prosecution submitted that the respondent was a “serious repeat offender”, and senior counsel appeared to concede that issue, before the sentencing Judge intervened to question whether the respondent was, in fact, a “serious repeat offender”. The sentencing Judge took the view that the cultivation of two crops in different locations at the same time was appropriately considered a single occasion. It raises the significance of the differences between the actus reus of each offence and the overall criminal enterprise of which each offence formed a part when determining whether offending occurred on the same occasion. As that issue was not pressed on appeal, it is not necessary for this Court to address it. Absent a concession by the prosecution, whether each offence concerning the cultivation of separate cannabis crops was committed on separate occasions is a matter to be considered on resentence.[49]
[49] KRM v The Queen (2001) 206 CLR 221, [16]-[18] (McHugh J); Tognolini v The Queen (2011) 32 VR 104, [17]-[23] (Maxwell P, Buchanan and Redlich JJA); R v Culley (2019) 134 SASR 92; R v Harradine (2019) 134 SASR 68; Moran v The Queen (2020) 136 SASR 504.
Conclusion
The Director should be given permission to appeal and the appeal allowed.
The sentence imposed by the sentencing Judge should be quashed and the matter remitted for resentence.