R v Leka
[2017] SASCFC 77
•6 July 2017
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LEKA
[2017] SASCFC 77
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Stanley and The Honourable Justice Hinton)
6 July 2017
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - GENERAL PRINCIPLES - FUNCTIONS OF APPELLATE COURT
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - OTHER MATTERS
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - HARDSHIP - TO OFFENDER
Appeal against sentence of five years and seven months with a non-parole period of two years and nine months imposed for one count of cultivating a large commercial quantity of controlled plants for sale, one count of cultivating controlled plants for sale and one count of trafficking in cannabis.
The appellant was born in Albania and recognised he was homosexual while at university. As Albanian culture eschews homosexuality, he concealed the fact from his family. However, they eventually discovered the truth of his sexuality which was a cause of great shame for his parents. He feared for his life. He fled to Italy and claimed that he still feared his family would trace him through the Albanian community in Italy. He obtained a stolen passport and travelled to Australia in June 2014. Upon arrival, he instructed a solicitor to apply for protection as a refugee on the basis of a well-founded fear of persecution.
On appeal, the appellant argued that the sentencing judge failed to take into account a relevant mitigating consideration, namely, the hardship the appellant would suffer during imprisonment because of the prospect of deportation to Albania upon his release.
Held: Permission to amend is refused and the appeal is dismissed.
1. It is not necessary to resolve the conflict on the authorities in this State and interstate in order to dispose of this appeal (at [29] and [37]).
2. Even if the prospect of deportation is a relevant consideration mitigating the exercise of the sentencing discretion, the sentencing judge had regard to that prospect. So much is clear from the terms of the sentencing remarks which expressly refer to that prospect (at [30]).
3. Queensland and Victorian authorities establish that where the prospect of deportation is a relevant factor in fixing sentence, there must be evidence that enables a sensible quantification of risk that deportation will in fact occur, and proof that deportation would in fact be hardship during any term of imprisonment for the offender. In this matter there was no evidence put before the Court as to these issues. In any event, recent decisions emphasise the frequency with which the Migration Act is amended and Ministerial directions are issued which make it difficult to quantify the prospects of deportation years from now (at [32]).
4. The hardship arising from the risk of deportation pre-existed the imposition of sentence for the appellant’s offending as he entered Australia unlawfully on a false passport (at [33]).
Criminal Law (Sentencing) Act 1988 (SA) s 18A; Migration Act 1958 (Cth) s 499, s 501, s 501CA, referred to.
R v UE [2016] QCA 58; Guden v R (2010) 28 VR 288; Konamala v R [2016] VSCA 48; Da Costa v The Queen (2016) 307 FLR 153; Schneider v The Queen [2016] VSCA 76; 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; R v Schelvis [2016] QCA 294; R v Zhang [2017] SASCFC 5; R v Berlinsky [2005] SASC 316; R v Strestha (1991) 173 CLR 48; R v Giri and Karki (1999) 109 A Crim R 499; R v Satui [2002] QCA 323; TAN v The Queen (2011) 216 A Crim R 535; R v Hucks [2016] SASCFC 92; R v Gjoni [2012] SASCFC 48, discussed.
R v Zhang [2017] SASCFC 5, considered.
R v LEKA
[2017] SASCFC 77Court of Criminal Appeal: Peek, Stanley and Hinton JJ
PEEK J: I would dismiss the appeal. I agree with the reasons of Stanley J and with the additional remarks of Hinton J.
STANLEY J.
Introduction
This is an appeal against sentence.
The appellant pleaded guilty to one count of cultivating a large commercial quantity of controlled plants for sale, one count of cultivating controlled plants for sale and one count of trafficking in cannabis.
The judge imposed a single sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (Sentencing Act). The appellant was sentenced to five years and seven months imprisonment with a non-parole period of two years and nine months commencing from 24 November 2015.
The sentencing judge fixed sentence from a starting point of seven years which he discounted by 20 per cent for the pleas of guilty.
The judge found that good reason to suspend the sentence did not exist.
A Judge of this Court granted permission to appeal on the ground that the sentencing judge failed to take into account a relevant mitigating consideration, namely, the additional hardship the appellant would suffer during the term of his imprisonment because of the prospect that upon his release from prison he will be deported to Albania. The judge refused permission to appeal on the ground that the sentence is manifestly excessive.
On the hearing of the appeal counsel for the appellant sought permission to amend to argue that the sentence is manifestly excessive on the basis of the failure to take into account the mitigating consideration in the ground upon which permission to appeal was granted. The court reserved consideration of this application until it had heard submissions on the merits of the ground for which permission was being sought.
Factual background
The appellant was born in Albania on 31 May 1986 in a small village near the city of Shkoder. He attended school in his local village until Year 8 before completing four years of high school. On completion of his secondary education he enrolled in university in Tirana in 2005. He commenced an Arts degree but failed to graduate. He returned to his village and family home and commenced work with his father who was a fishmonger. While at university he recognised that he is homosexual. Albanian culture eschews homosexuality. As a result the appellant concealed the fact of his homosexuality from his family. Eventually his family discovered the truth of his sexuality. This discovery was a cause of a profound sense of shame for his parents. His father was so angry as to threaten to kill him. Of most concern to the appellant was the reaction of his brother who is in the military and who upon learning of the fact of his brother’s homosexuality undertook to return home “to deal with the matter”. The appellant considered that his brother intended to murder him as some kind of honour killing.
In response the appellant fled to Italy. He claimed that in Italy he did not feel safe and feared that his family would trace him through the expatriate Albanian community in that country. He obtained a stolen passport in Italy and travelled on that passport to Australia in June 2014.
In Australia he instructed a solicitor to apply for protection as a refugee on the basis of a well-founded fear of persecution in his home country on the basis of his sexuality.
Upon application being made for refugee status he obtained a bridging visa. He disclosed to officials of the Immigration Department the unlawful basis of his entry into Australia. While on a bridging visa he had no access to social security. He was unable to find employment.
Through contacts he made in the Albanian community the appellant became involved in a large scale commercial cannabis operation with crops being hydroponically grown at properties at Mitchell Park and Vale Park. While the appellant came to be sentenced on the basis that he was neither the instigator nor the prime mover in this operation, the evidence was that he was integrally involved in the cultivation of the crops, paid the rent for one property and was personally trafficking a pound of cannabis. The plants at Mitchell Park were estimated to have a potential yield between 21.6 kilograms and 64.8 kilograms. This could produce revenue of between $103,400 and $488,754. The plants at Vale Park were estimated to have a potential yield of between 3 kilograms and 9 kilograms. This could produce revenue of between $14,223 and $67,883. In addition 463 grams of dried cannabis located at Vale Park could produce revenue of between $2,200 and $3,500.
The appellant was sentenced on the basis that he had an ongoing role in maintaining the two crops. He submitted his involvement was the result of the need to earn money. His involvement commenced a few months after his entry to Australia.
The appellant has been in custody since his arrest on 24 November 2015.
Sentencing remarks
The judge set out the circumstances of the appellant’s offending. He then turned to the appellant’s background. In this context he observed:
You had realised you were homosexual. Your counsel explained that unfortunately homosexuality is not something that is accepted in Albania but is regarded instead as shameful. The family discovered material from your computer revealing your sexuality and you were subject to considerable anger and discord from family members. You say you were particularly concerned at hearing that your brother was returning home “to deal with the matter” and you feared for your life.
As a result, you left Albania, purchased an Italian passport in someone else’s name from people smugglers, and entered Australia on this false documentation in June 2014. You were in the process of retaining an immigration lawyer to attempt to seek refugee status on the basis of your fear of returning to Albania in light of your sexuality. In light of this current offending, you believe you have no prospect of remaining in Australia after your sentence expires. You are fearful of returning to Albania in light of your sexuality.
The judge referred to the appellant’s lack of criminal antecedence. He noted that the offending was for the purposes of securing a financial benefit and had to be regarded as serious. He said:
Your offending is serious. It involved your role in the well organised production of significant quantities of cannabis at two separate locations some three months apart, and the specific offence of trafficking a pound of cannabis yourself. The organised and commercially run production of cannabis for significant wholesale supply into the drug industry could not occur without persons such as yourself, willing to cultivate and tend to crops, pay rental on rental premises used for the cultivation, and traffic pound lots of cannabis into the wholesale market. As such, your conduct is considerably more serious than a street level dealer selling small amounts to end users of the drug. Personal and general deterrence must form a significant part of sentencing in these circumstances.
Before proceeding to impose the sentence the judge said that he had regard to everything put and submitted on behalf of the appellant.
Submissions on appeal
The appellant submits that the possibility of deportation is a relevant consideration in the sentencing process. The appellant relies upon this Court’s judgment in R v Zhang.[1]He submits that weight can and should be given to the hardship caused by this possibility for at least two reasons: first, because of its impact on the assessment of hardship suffered by the appellant while awaiting determination of his fate upon release from prison; and second, because of the impact on the appellant of the prospect of the loss of the opportunity to remain in Australia. The appellant submits that while the sentencing judge accepted the appellant’s belief that he would be deported and his fear of returning to persecution in his homeland, this was not taken into account as a relevant circumstance in arriving at the sentence imposed. This is apparent both on the face of the sentencing remarks and given the sentence imposed.
[1] [2017] SASCFC 5.
The respondent submits that the judge did consider the relevance of the prospect of the appellant’s deportation in fixing sentence. In any event, the respondent submits that there was a lack of evidence before the judge of the hardship that the appellant would suffer during the sentence of imprisonment by reason of the prospect of his deportation. Further, the respondent submits the fact of deportation was speculative given the discretion reposed in the Minister to revoke a mandatory order of deportation made pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Migration Act).
Deportation
Section 501(3A) of the Migration Act provides:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) provides that a person does not pass the character test if the person has a substantial criminal record. A substantial criminal record is defined in s 501(7). Relevantly, s 501(7)(c) provides that a person has a substantial criminal record for the purposes of the character test if the person has been sentenced to a term of imprisonment of 12 months or more.
Section 501CA provides:
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i)a written notice that sets out the original decision; and
(ii)particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
(5)If the Minister revokes the original decision, the original decision is taken not to have been made.
(6)Any detention of the person that occurred during any part of the period:
(a) beginning when the original decision was made; and
(b) ending at the time of the revocation of the original decision;
is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.
(7)A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.
Authorities relevant to the prospect of deportation as a mitigating factor in sentencing
The relevance of the prospect of deportation of an offender in sentencing is the subject of two conflicting approaches. There is a line of authority from Queensland and Victoria[2] that conflicts with the approach taken in New South Wales and Western Australia.[3]
[2] R v UE [2016] QCA 58; Guden v R (2010) 28 VR 288; Konamala v The Queen [2016] VSCA 48; Da Costa v The Queen (2016) 307 FLR 153; Schneider v The Queen [2016] VSCA 76.
[3] 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.
Various decisions of Queensland and Victorian Courts of Criminal Appeal have held that the prospect of deportation is a matter which can be taken into account as a mitigatory consideration when fixing sentence on the basis that the prospect would make the term of imprisonment more burdensome and would deprive the offender of the opportunity of settling permanently in Australia. By contrast, in New South Wales and Western Australia, their Courts of Criminal Appeal have held that the prospect of deportation is not a relevant matter or consideration for a sentencing judge because: first, it is a matter exclusively for the executive government and results from an entirely separate legislative policy; and second, it is wrong in principle that offenders who are liable to deportation are treated more leniently than Australian citizens.
Recently in this State in R v Zhang[4] the Court of Criminal Appeal has adopted the approach taken in Queensland and Victoria. Chivell AJ, with whom the other members of the Court agreed, expressly approved the approach taken by the Queensland Court of Appeal in R v Schelvis[5] following an earlier decision of the Victorian Court of Criminal Appeal in Guden v R.[6]He said:[7]
In R v Schelvis; R v Hildebrand, it was argued that the sentencing judge should have taken into account the effects of Ms Schelvis’ deportation being ‘almost inevitable … upon being released on parole’. Ms Schelvis was a Dutch national who had come to Australia as a child, and she held a permanent residence visa to live here.
Fraser JA (with whom Morrison JA and Peter Lyons J agreed) noted that the Migration Act 1958 (Cth) had been amended so that if a visa holder does not pass the ‘character test’ in the Act, by virtue of having a ‘substantial criminal record’, the Minister must cancel the visa. However, the visa holder may make representations to the Minister, who then has a discretion to revoke the cancellation. His Honour referred to a line of authority in Queensland and Victoria which conflicted with authorities in Western Australia and in New South Wales about whether the prospect that an offender may be deported should be taken into account. His Honour accepted that ‘the risk of removal from Australia (must) be assessable rather than merely speculative before it may be taken into account by way of mitigation’, following Guden v R.
Fraser JA held:
I would therefore hold that the sentencing judge did not err in not taking into account by way of mitigation of the sentence any hardship which Schelvis might suffer as a result of the prospect that she might be deported upon completion of the custodial component of her sentence.
[footnotes omitted.]
[4] [2017] SASCFC 5.
[5] [2016] QCA 294.
[6] (2010) 28 VR 288.
[7] [2017] SASCFC 5 at [110]-[112].
However, there is no reference in Zhang to an earlier decision of the Court of Criminal Appeal in R v Berlinsky[8] where Doyle CJ considered the earlier regime under the Migration Act pursuant to which, where a person in Australia on a visa does not pass the character test in s 501 because he or she has been sentenced to imprisonment for more than 12 months, the Minister is conferred with a discretion to cancel the visa. Doyle CJ observed that in those circumstances the decision in relation to the visa, and hence on deportation, is a discretionary decision to be made by the Minister or her delegate. Where the decision was made by the delegate there was an appeal to the Administrative Appeals Tribunal pursuant to s 501(1)(b).[9]
[8] [2005] SASC 316.
[9] Now s 500(1)(ba) of the Migration Act.
Doyle CJ, with whom Bleby J agreed, said that it would be wrong for a judge to impose a lesser sentence than was appropriate on the basis that the shorter the sentence imposed, the better the prospect that the Minister would permit the offender to avoid deportation. As for deportation there was really nothing the sentencing judge could do. The risk of deportation existed whatever the judge did. Citing the High Court’s judgment in R v Shrestha[10] and various authorities from New South Wales and an earlier decision of the Queensland Court of Appeal in R v Satui,[11] Doyle CJ said that as deportation is a matter for the executive government of the Commonwealth it is irrelevant as a sentencing consideration.[12]
[10] [1991] HCA 26, (1991) 173 CLR 48.
[11] R v Giri and Karki [1999] NSWSC 1269, (1999) 109 A Crim R 499; R v Latumetan and Murwanto [2003] NSWCCA 70; R v Satui [2002] QCA 323; R v Van Hong Pham [2005] NSWCCA 94.
[12] [2005] SASC 316 at [27].
It appears Zhang may have been decided per incuriam. Whatever the position, however, I do not consider it necessary to resolve the conflict on the authorities in this State and interstate in order to dispose of this appeal.
Consideration
In this matter I am satisfied that even if the prospect of deportation is a relevant consideration mitigating the exercise of the sentencing discretion, the judge had regard to that prospect. So much is clear from the terms of the judge’s sentencing remarks which refer expressly to that prospect. The judge, having referred to that topic, on the basis of the submission of the appellant’s counsel went on to make clear that he had regard to everything she had put on behalf of the appellant. Necessarily that included the issue of the prospect of his deportation.
Further, I reject the submission that it is implicit in the sentence imposed that the judge failed to have regard to the prospect of deportation.
The authorities in Queensland and Victoria establish that where it is considered the prospect of deportation is a relevant factor in fixing sentence, a sentencing judge cannot speculate as to that prospect. There must be evidence before the court that enables both a sensible quantification of the risk that deportation will in fact occur, and proof that deportation would in fact be a hardship during any term of imprisonment for that particular offender.[13] In this matter there was no evidence put before the Court as to either of these issues. In any event, recent decisions emphasise the frequency with which the Migration Act is amended and Ministerial directions are issued pursuant to s 499 of the Act. Ministerial directions direct delegates of the Minister in the performance of their functions. These changes make it difficult to quantify the prospects of deportation years from now.[14]
[13] TAN v The Queen (2011) 216 A Crim R 535 at 568-569; R v UE [2016] QCA 58 at [16].
[14] Da Costa v The Queen [2016] VSCA 49 at [39]-[51]; R v Schelvis [2016] QCA 294 at [75]-[76].
Further, in this matter the appellant faced the prospect of deportation, not only because of the offending for which he fell to be sentenced, but because he had entered the country unlawfully on a false passport. The hardship arising from the prospect of deportation pre-existed the imposition of sentence for his offending.
It is important to recognise that this offending was, as the sentencing judge correctly characterised it, serious. There is no tariff for trafficking offences.[15] This was a well established commercial operation cultivating a large quantity of plants for sale. In addition there was the appellant’s own trafficking. The maximum penalties applicable are: for cultivating a large commercial quantity of cannabis plants for sale, a fine of $500,000 or life imprisonment or both; for cultivating cannabis plants for sale, a fine of $50,000 or 10 years imprisonment or both; and for trafficking in cannabis, a fine of $50,000 or 10 years imprisonment or both. This indicates that Parliament intended that offences of this kind should be regarded seriously and that substantial sentences should be imposed.[16] In these circumstances a starting point of seven years must be considered merciful and implies a reduction from the sentence I would otherwise expect to have been imposed for this offending and this offender. There is no question of the sentence being manifestly excessive. In my view, even assuming the sentencing judge was obliged to consider the prospect of deportation as a mitigating factor in imposing sentence, and that he failed to do so, I would not interfere with the sentence imposed.
[15] R v Hucks [2016] SASCFC 92 at [21].
[16] R v Gjoni [2012] SASCFC 48 at [17].
In Kentwell v The Queen[17] the plurality said that where a Court of Criminal Appeal identifies a House v The King error, the court should exercise an independent sentencing discretion. Where the court concludes that a lesser sentence is appropriate having regard to the offender and the offence, it should impose a lesser sentence. Where the court concludes that the same sentence or a greater sentence is appropriate, the court is not required to resentence.[18] Had I considered that the judge erred, I am satisfied that the same or a greater sentence would nonetheless have been appropriate. Accordingly, I would not interfere with the sentence on appeal.
[17] [2014] HCA 37, (2014) 252 CLR 601.
[18] [2014] HCA 37 at [43], (2014) 252 CLR 601 at 618.
Conclusion
I would refuse permission to amend. I would dismiss the appeal.
HINTON J: I agree that the appeal should be dismissed for the reasons given by Stanley J. I also agree that resolution of the question of the relevance or not of the likelihood of deportation to sentencing can await another day. At that time the question will fall to be considered within the legislative framework set out in the Criminal Law (Sentencing) Act 1988 (SA). I agree further that at that time evidence of the appellant’s status under Commonwealth migration laws, the likelihood of deportation and the relevant process that may unfold, what an appellant will meet if deported, and the effect that the risk of deportation hanging over the head of the appellant whilst serving any sentence imposed in this country may have would need be adduced.
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