R v Leka

Case [2017] SASCFC 77

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…

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R v Leka [2017] SASCFC 77
Case
[2017] SASCFC 77
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CaseChat Overview and Summary

The appeal concerned the appellant, R v Leka, who sought to challenge his sentence. The dispute centred on whether the sentencing judge had adequately considered the prospect of deportation as a mitigating factor. The appeal was heard by Peek, Stanley and Hinton JJ.

The legal issues before the court were whether the sentencing judge had failed to take into account the mitigating consideration of the appellant's potential deportation, and if so, whether this failure rendered the sentence manifestly excessive. The court also considered the conflicting authorities in different Australian states regarding the relevance of deportation as a mitigating factor in sentencing.

The court reasoned that even if the prospect of deportation were a relevant mitigating factor, the sentencing judge had expressly acknowledged and considered it in his remarks. Furthermore, the court found that there was no evidence before the sentencing judge to allow for a sensible quantification of the risk of deportation or the hardship it would cause. The court noted that the appellant faced deportation not only for the current offending but also for his unlawful entry into Australia on a false passport, meaning the hardship pre-existed the sentence. Given the seriousness of the commercial cannabis operation and the appellant's involvement, the court concluded that the sentence imposed was not manifestly excessive.

The appeal was dismissed, and the sentence imposed by the lower court was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

STANLEY J (dissent)
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.

Ratio Decidendi

Legal Principle Established

Established by:

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].