R v MA

[2023] NSWDC 567

District Court

New South Wales

Medium Neutral Citation:	R v MA [2023] NSWDC 567
Hearing dates:	15 – 16, 22 – 26, 29 – 31 May 2023, 1 – 2, 5 – 9, 13 – 16, 19 – 23, 26 – 30 June 2023, 3 – 7, 10 – 14, 17 – 21, 24 – 28, 31 July 2023, 1 – 4, 7 – 11, 14 – 15 August 2023, 5 December 2023
Date of orders:	15 December 2023
Decision date:	15 December 2023
Jurisdiction:	Criminal
Before:	J Smith SC DCJ
Decision:	See [73]
Catchwords:	CRIME – s 43A(2) of the Crimes Act 1900 (NSW) – failure to provide necessities of life – alternative charge to manslaughter – guilty verdicts following trial – high level of objective seriousness  SENTENCING – citizenship and migration – visa – detention – relevance of potential impact on sentence of decision on migration status – whether immigration detention amounts to punishment – immigration detention as quasi-custody – lack of remorse
Legislation Cited:	Crimes Act 1900 (NSW) Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 (NSW) Migration Act 1958 (Cth)
Cases Cited:	Afful v R [2021] NSWCCA 111 Alexander v The Minister for Home Affairs (2022) 96 ALJR 560 Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 ARJ17 v Minister of Immigration and Border Protection [2018] FCAFC 98 Cheung v R (2001) 209 CLR 1 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 DG v R (No 1) [2023] NSWCCA 320 Hatahet v The King [2023] NSWCCA 305 NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 R v Isaacs (1997) 41 NSWLR 374 R v Latumetan and Murwanto [2003] NSWCCA 70 R v Pham [2005] NSWCCA 94 Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; 299 A Crim R 391 SZRWS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2022] FedCFamC2G 447; 369 FLR 167
Texts Cited:	NA
Category:	Principal judgment
Parties:	Director of Public Prosecutions NSW (Crown) MA (Offender)
Representation:	Counsel: T Abdulhak (Crown Prosecutor) Greg James AM KC (Offender) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Elite Legal Group (Offender)
File Number(s):	2019/00057100
Publication restriction:	Publication of the name and any information or material that may lead to the identification of the victim is prohibited

Judgment

1. The offender was tried before me and a jury from 22 May 2023 to 14 August 2023 on an indictment containing three counts. Each count related to the offender’s stepson, (AF).

2. Counts 1 and 3 were both offences contrary to section 43A(2) of the Crimes Act 1900 (NSW), however, each were of a slightly different nature. Count 1 was that the accused, being a person having parental responsibility for AF, recklessly and without reasonable excuse, failed to provide him with the necessities of life, and the result of that failure caused a danger of serious injury to AF. Count 3 was that the accused, being a person having parental responsibility for AF, recklessly and without reasonable excuse, failed to provide him with the necessities of life, and the result of that failure caused a danger of death to AF. Each count carries a maximum penalty of 5 years imprisonment. Count 3 was charged in the alternative to count 2.

3. Count 2 was that the accused did unlawfully kill AF in circumstances amounting to manslaughter, namely, criminal negligence. This count was contrary to section 18(1)(b) of the Crimes Act 1900 and carries a maximum penalty of 25 years imprisonment.

4. On 14 August 2023, the jury returned verdicts of guilty to counts 1 and 3 and a verdict of not guilty to count 2.

5. The offender came before me for sentence on 5 December 2023.

Facts

1. Although it was the jury that determined the offender’s guilt, it is my duty to determine the facts for the purpose of sentencing. Two constraints on me in the performance of that duty are, first, that the facts I find must be consistent with the jury’s verdict; and second, that findings of fact made against the offender must be arrived at beyond reasonable doubt: see Cheung v R (2001) 209 CLR 1 at [14] citing R v Isaacs (1997) 41 NSWLR 374. The Court in Isaacs also explained that there is no general requirement that a sentencing judge must sentence an offender on the view of the facts most favourable to the offender. However, the practical effect of the requirement that adverse facts be found beyond reasonable doubt is that the resolution of any reasonable doubt will be most favourable to the offender.

2. The following is a summary of the facts as I find them to be.

Background

1. The offender is a citizen of Iran and arrived in Australia in July 2013. I will set out more details of his personal circumstances later in these reasons. For present purposes it is important to note that he met DF in 2014 or 2015 and began an intimate relationship with her. She had a child from a previous relationship, LF, who was born in January 2012. In 2015 the offender and DF began living together and were married in a religious ceremony. On 16 March 2016 DF gave birth to AF. AF was not the biological child of the offender but he assumed and maintained parental responsibility for AF and treated him as his own child throughout his short life.

2. In light of one of the submissions made on behalf of the offender on sentence, it will be necessary to return to the relationship between the offender and AF at a later point in these reasons.

3. The day after AF’s birth, he and LF were removed from the care of DF and the offender and placed into temporary foster care. The reasons for that removal were concerns held for DF’s capacity to provide safe and adequate parenting care.

4. The offender and DF maintained contact with the two children after their removal and, together, made efforts to have them returned to their care. Their efforts resulted in an order made in the Children's Court in 2017, restoring the two children to the offender and DF subject to supervision by Family and Community Services (as they then were) for a period 12 months.

5. The children were restored to the care of the offender and DF on 18 April 2017 and they resumed living together as a family unit. On 16 May 2017, DF gave birth to AAF who was the biological child of the offender.

6. In January 2018 the offender, DF, LF, AF and AAF all moved into a rented unit in Park Road Cabramatta.

7. Up to and including 3 August 2018, AF was horribly mistreated by his mother and ultimately, on that day, died as a result of the blunt force trauma inflicted upon him by her. The offender was not charged with, and is not to be sentenced for, that treatment. He himself did not physically mistreat the child and he was never charged with failing to prevent his wife from mistreating AF. That said, it is necessary to record some of the mistreatment during that period because it forms a part of the context in which the offences committed by the offender occurred.

8. DF was jealous of the offender's relationship with AF and would hit and bash AF for no reason. DF was always hitting both LF and AF. One of the assaults on AF by DF was grabbing him by his hair and throwing him across a room about two months before his death. The offender however was not present on that occasion.

9. The first count charged on the indictment was that between 28 June and 2 August 2018, the offender had parental responsibility for AF, and recklessly and without reasonable excuse, failed to provide him with the necessities of life, and the result of that failure caused the danger of serious injury to AF. The necessities of life in this count were access to timely medical care with regards to the fracture of AF’s right tibia.

10. This fracture was the subject of close examination during the post-mortem examination of AF and was described as a remote healing fracture in the proximal area of the tibia which means the shin bone close to the knee. The fracture was misaligned, meaning that it had not healed properly and that the two parts of the bones had moved out of their normal position. It was also transverse: it had cut across the bone or that it literally snapped in half. It was a painful injury and assessed to be less than three months old at the date of death.

11. I am satisfied beyond reasonable doubt that the injury was inflicted upon AF at some time between 26 June 2018 and 4 July 2018. It did not occur when the offender was in Melbourne in the period 14 to 21 May 2018 because there was no note of it by the GP who examined AF on 23 May 2018. A video recording of AF taken on 26 June 2018 shows AF able to stand up and walk a short distance and use his leg without any apparent limp. Further, on 4 July 2018, in an attempt to explain to a client why he had not turned up to undertake work that day, the offender told his client that his son had broken his leg saying "it was an emergency. I'll be leaving soon".

12. The offender was clearly aware of the injury at or about the time it was inflicted. He later told Mr Ghoulami that he had observed that AF could not walk properly and that DF had told him that she wanted to change AF’s nappy but that he would not put his leg down and so she hit it. When he was asked by Mr Ghoulami if he had taken AF to see a doctor, the offender said that he was busy at work and he had given money to DF to take AF to see a doctor. I reject that explanation. The offender worked for himself and, as was apparent in the text message, was able, if he wanted, to take time off work. In any event the evidence established that he did not work six to seven days as he said in his evidence. Further, there was nothing preventing him from taking AF to see a doctor for medical treatment after work hours. In addition, AF had a Medicare account which would have enabled treatment of his leg free of charge. This meant that there was no requirement for the offender to give DF any money for the treatment of AF.

13. The danger caused by the failure to seek treatment for AF’s leg fracture included the re-fracturing of the leg by virtue of the fact that the leg was not correctly aligned and immobilised after the fracture as it would have been had treatment been sought; the development of valgus deformity so that the leg would become angulated at the ankle and foot; development of an uneven gate and damage to other joints including hip joint as a result of uneven wear and tear and finally the possibility of the onset of arthritis at a later time.

14. The third count on the indictment was that, on 3 of August 2018 the offender, having parental responsibilities for AF, recklessly and without reasonable excuse, failed to provide him with the necessities of life, namely, medical attention, and the result of that failure caused a danger of death to AF.

15. Throughout the week leading up to 3 August 2018 the offender was working, but returned home each afternoon and stayed the night. On Thursday 2 August 2018, he returned home at 3.19 PM and stayed there until late the following day. The rest of the family were also there that night. The following morning, DF took LF to school at Canley Vale and took AAF along with her. The offender remained at home with AF. DF returned with AAF after 9 AM and the four of them remained in the unit until about 2.30 PM when DF went to pick up LF from school. She took AAF with her again.

16. The offender left the unit at approximately 4.30 PM and drove to provide a quote for a prospective job, stopping along the way to buy some drink and a snack for DF. He left the prospective job at around 5.30 PM and returned to the unit at approximately 6.20 PM after making a brief detour to buy some opium.

17. After the offender returned home, he went into his bedroom, leaving the door open. DF took LF and AAF into their room, which was situated at the end of the hallway from the loungeroom and was adjacent to the offender’s room. DF then inflicted a violent and sustained assault on AF, causing severe internal injuries to a number of organs in his abdominal area. She struck him repeatedly using her hand, a sandal and/or a belt. She was yelling. At one point, AF was sitting on the floor, unable to stand up and walk and DF dragged him to make him walk. AF was crying loudly, coughing, and sneezing during the assault.

18. LF could hear the assault and could see parts of it through a hole under the door handle of the door to his room. I am satisfied beyond reasonable doubt that the offender, too, heard the assault and heard AF crying in pain and coughing. The unit was relatively compact, there was no music on and there was nothing to impede the noise travelling from the lounge room to the bedrooms at the end of the hall.

19. DF left the unit with the boys at about 7.30 PM. When they arrived at her father’s house at 7.44 PM, he noticed that AF’s stomach was bloated and firm. He told her to take AF to the hospital. AF was eventually taken to the hospital and arrived at 9.03 PM. He was clinically dead by then and the extended efforts by the medical team failed to revive him. He was declared dead at 9.45 PM.

20. Post mortem examination revealed a number of serious injuries of varying ages. These included fractures of the occipital skull, fracture of the left scapula, the fractured proximal tibia I have already referred to, significant bruising to his head and face, lacerations, a fractured sternum, contusions to the lung, laceration of the right atrium of the heart, contusions of the thymus gland and ascending aorta. However, it was the more recent injuries to the abdominal area, and, in particular, the lacerations to the liver that were caused in the assault that took place in the period between 6.20 PM and 7.30 PM and it was these that led to significant internal bleed and, ultimately, death.

21. In my view, consistent with the jury’s verdicts on counts 2 and 3, there is a reasonable doubt whether the offender’s failure to obtain medical attention was a cause of AF’s death. That is because the evidence, albeit uncontested, was that, if AF had been taken to hospital immediately upon infliction of the injury, there was a good possibility that he could have survived. That leaves open the reasonable possibility that the injury was such that no intervention would have succeeded. However, I am satisfied beyond reasonable doubt that his failure to do so created a risk of death. Given the extent of the injuries, and the nature of the assaults, that risk was very high.

Objective Seriousness

1. The offences under section 43A(2) of the Crimes Act 1900 has not yet been considered by the Court of Criminal Appeal even though that provision was introduced in 2004. An examination of the integers of the offence suggest that the following factors are relevant to the assessment of the seriousness of the offending under the provision:

2. the type of necessities of life which an offender failed to provide;

3. where the necessities relate to the provision of medical treatment;

4. the nature of the condition for which the medical treatment was required;

5. whether the failure to provide the necessities of life was intentional or reckless;

6. whether the failure caused danger of serious injury or danger of death;

7. the age of the child;

8. the length of time over which the offender failed to provide the necessities of life;

9. any steps taken by the offender towards obtaining the relevant necessities of life; and

10. in cases involving recklessness, the level of that recklessness.

11. AF was about two years and three months old when he sustained the fracture to his tibia. As such, he was entirely dependent upon the offender and DF for his medical needs. The leg injury was serious, it was painful and had made it difficult for AF to walk. The need for medical attention was obvious and the offender knew this and yet, over a period of four to five weeks did nothing to obtain what was readily available medical attention, namely a medical examination, the placement of the leg in full plaster to avoid the risk of misplacement. The risk that arose because of the failure to obtain medical attention was of further and permanent injury including the danger of refracture and misalignment, deformity and injury to other joints.

12. The offender submitted that the Court should have regard to the limited practical opportunity available to the offender to obtain medical assistance, particularly having regard to his relationship with DF and his view of the possible consequences of his informing on her treatment of her children to FACs. I reject that. In particular, I reject the assertion that the offender was limited in his ability to obtain medical assistance for his son and find that, far from lessening his responsibility for the child, the gross abuse of the child by his mother only served to bring into sharper focus the offender’s own responsibility for obtaining the necessities of life for AF.

13. Overall, the very young age of the child, the serious nature of the injury and the length of time that he was left to suffer with a painfully broken tibia and the gross recklessness of the offender make this a very serious offence indeed.

14. In respect of count three, the opportunity to obtain medical assistance for AF was significantly less, however the risk in this case was that of death. The child was beaten mercilessly by his mother in a very small unit to the extent that he was bleeding and unable to walk. The injury, particularly to the liver, was very painful and AF was crying. All of this made it obvious that the child required immediate medical assistance and yet throughout the period up until the death of the child the offender did nothing and was grossly reckless in his failure. In contrast to count one, AF was not merely limping as a consequence of this vicious assault upon him but very ill indeed, and for that reason and because of the gravity of the risk involved in failing to obtain medical assistance, this offence is even more serious than the first.

Aggravating Factors

1. The first offence is aggravated by the injury actually caused by the failure being substantial: see section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The third offence was committed in the presence of a child, namely LF who witnessed not only the beating but also the failure by AF’s father to do anything to assist AF in terms of medical care: see section 21A(2)(ea) of the Crimes (Sentencing Procedure) Act.

Subjective Factors

1. As already mentioned, the offender was born in 1984 and arrived in Australia on 6 July 2013. Because he arrived in Australia without a visa by boat, he was an unauthorised maritime arrival for the purposes of the Migration Act 1958 (Cth). That classification limited the scope of any regularisation of his stay in Australia and so, when he sought protection as a refugee, he did so by applying for a temporary protection visa. In that application he claimed to fear imprisonment, harm or death at the hands of the Iranian authorities as a result of an incident that took place when he was celebrating his son's first birthday at his father's home.

2. His application was first refused by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs on 10 May 2019 on the basis that the offender did not face a real chance of serious harm or a real risk of significant harm upon return to Iran. That decision was affirmed by the Immigration Assessment Authority (“IAA”) on 17 June 2019 but, on 6 May 2022, the Federal Court of Australia remitted the matter to the IAA for reconsideration. I do not know why that was: cases dealing with protection visa applicants are anonymised because of section 91X of the Migration Act and the decision was not before me. The decision of the Minister was again affirmed by the IAA on 25 August 2022 but, on 8 August 2023 the Federal Circuit and Family Court of Australia made orders remitting the matter for reconsideration. On 3 October 2023, another review undertaken by the IAA resulted in a decision affirming the decision of the delegate to refuse to grant the applicant a temporary protection visa.

1. The IAA found that the offender’s evidence was generally implausible, unpersuasive, and at times inconsistent or unsupported by country information and that this was because the offender was not recalling a personally lived experience. I was informed and can accept for present purposes that the offender has applied again to the Federal Circuit and Family Court of Australia for judicial review of the IAA's third decision. As a consequence of the privative clause in section 474 of the Migration Act, that Court’s jurisdiction is limited to determining whether the decision of the IAA was affected by jurisdictional error: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 at [76].

2. The offender’s mental health was assessed by clinical psychologist Sam Borenstein whose report dated 22 April 2023 is before the Court. That report does not identify the purpose of its preparation.

3. The offender told Mr Borenstein that he left Iran following persecution for breaking religious laws, including consuming alcohol and celebrating the birth of his son and that his marriage of five or six years ended because the police kept going to the house and targeting him. He said that his youngest brother was executed some three months ago for participating in public protests against the Iranian regime and that his boat journey from Indonesia to Australia was traumatic and that he believed that they were going to drown.

4. The offender said that his father died two years ago and the remainder of his family in Iran continue to live under oppressive circumstances.

5. Upon administering a number of tests to the offender, Mr Borenstein confirmed that the results of those tests were that the offender suffered with severe symptoms of post traumatic stress disorder and extremely severe symptoms of depressed mood and anxiety.

6. The offender told Mr Borenstein that he understood that his ex-partner, DF, had been charged with homicide even though she had, by that stage, pleaded guilty to manslaughter and, as a consequence of that, his own trial that was to have been in the Supreme Court was transferred to the District Court.

7. Mr Borenstein gave his opinion that the offender was in need of psychiatric and psychological treatment and that being held in detention acted as a reminder and trigger to past traumas which maintains severe PTSD symptomatology.

8. The purpose and impact of this report in these sentencing proceedings are unclear. There was no assessment of the offender’s mental health at the time of the offending or any connection that it may have had with the offending. I can only conclude that there was no such connection, and I cannot be satisfied that the offender had any mental health conditions at the time of the offending.

9. The offender has written a letter to the Court but did not give evidence. In the letter he says that he has had time to reflect on the "accusations and the neglect of my kids" and says that he hopes that "this change will be for the better" because he still considers himself a “role model to millions of people as family, a parent and a human being.” He says he is not happy that he lost his family but knows that it is part of the plan that God has made for him and that he is ready to face "this thing" head-on.

10. He goes on to explain, somewhat obliquely, that he is a victim. He said that it was not his mistake that he was born in Iran or that he became a refugee or got married to have a family. He says that he has asked himself "are you remorseful because what happened or because you were caught?" His answer appears to be that he is remorseful that he was born in Iran and that he lost his loved ones. He says that he is sorry about what horrible (things) happened to those who are affected by his wife's actions and that he couldn't keep his family who depended on him. He goes on to say that he is truly sorry that he caused a mistake in the past and says that he has others that he will look after including his son in Iran and the children of his new partner.

11. I find this letter truly difficult to understand, but cannot conclude that it discloses any expression of real remorse, any real understanding that what the offender did was wrong or about its impact upon his two year old son who depended upon him for the necessities of life in the face of a violent and abusive mother. The letter is, ultimately, no more than an expression of self-pity and while the offender can no longer offend against the victim in this case, it suggests that any prospect of true rehabilitation must be significantly guarded.

12. I reject the suggestion made by the offender’s Counsel that this letter shows the level of confusion about what he did. It is frankly impossible to believe that somebody who sat and watched the evidence of witness after witness over the course of twelve weeks describe the injuries to his son could not understand what impact his failure to act and to provide medical care to his son had, and further why this was wrong. The evidence also included photographs of the bruised and beaten body of the dead child and images of his previously broken bones. He was of course entitled to plead not guilty but the case he put forward of complete ignorance of the abuse of his son at the hands of his wife which was clearly rejected by the jury is nevertheless reflected in the attitude shown by the offender in his letter to the Court.

13. The offender's new partner, Mata Henare also wrote a letter to the Court. She says that the offender has told her about his criminal charges for the death of his stepson and that his ex-partner had been charged. This says nothing of the nature of the allegations against him which have now been proven. I cannot determine therefore exactly what Ms Henare knows about what the offender did. For that reason, I give little weight to what she says about him. I do accept, as far as it goes, that he gets on well with her children and that he has her support as well as that of the children.

14. The author of the Sentencing Assessment Report described the offender as providing contradictory statements and said that he continually denied witnessing the offence or being aware of any injuries that occurred prior to the victim's passing. He also told the author that the offender's understanding of his parental role appeared to be limited to providing for his children financially. The author concluded that the offender has no insight into the impact of the offending and he takes no responsibility and has no accountability. She says that the offender acknowledged the impact the offending had on his own personal circumstances but failed to acknowledge the impact it had on the victim, other members of the family or the wider community. This accords with my own assessment of the offender. The author assessed the offender as being at medium/low risk of reoffending according to the Level of Service Inventory-Revised. However, he was assessed as being unsuitable to undertake community service work because of a previous back injury.

15. On a slightly more positive note, the offender has undertaken a number of courses while he has been in immigration detention including a course in anger management, basic parenting, child safety for parents, healthy relationships, drug and alcohol abuse, positive parenting techniques, domestic violence, and understanding addictions. The weight of these courses is somewhat diminished by the fact that they were all completed in September and October of this year; that is, after he was found guilty of failing to provide AF with the necessities of life.

The offender’s immigration status and its relevance to the sentencing process

1. A large part of the submissions for the offender addressed the relevance of the potential impact of the sentence imposed by this Court on the offender’s immigration status. That is surprising for two reasons: first, it is well-established in this State, that the potential impact of a sentence on an offender’s immigration status is irrelevant to the sentencing process. Although Mr James AM KC spent some time establishing that several authoritative statements were made obiter dicta [R v Pham [2005] NSWCCA 94] or were otherwise not binding [Afful v R [2021] NSWCCA 111] he did not address the cases which were relied on by those cases. It suffices to mention only one: R v Latumetan and Murwanto [2003] NSWCCA 70. That was a Crown appeal against a sentence imposed in this Court. Studdert J, with whom Shaw J agreed, found that this Court had erred by taking into account the prospects that the offenders would be deported. At [19], his Honour referred to a number of decisions to support the proposition that it was “well-settled” that deportation was not a matter properly to be taken into account for sentencing purposes. His Honour was speaking twenty years ago. There has been no shift in the law in this State since that time.

2. Secondly, the principal submission made on behalf of the offender was that it was open to the Court to impose an aggregate sentence which, commencing on its passing, will not trigger section 501 of the Migration Act. That is shorthand for saying that a sentence of less than 12 months imprisonment is appropriate. The reason for that is that section 501 of the Migration Act provides that any sentence of 12 months or more will mean that a person fails the character test which, in turn, may be a basis for the refusal of a visa or, if one is currently held, for the mandatory cancellation of that visa. The problem with this argument is that the offender does not have a visa. As I have already outlined, his application for a protection visa was refused and that refusal was affirmed on review. While I was told that the review decision is subject to an appeal, or more accurately, there is an application for constitutional writs, before the Federal Circuit and Family Court of Australia Division 2, Mr James AM KC did not make any attempt to identify a jurisdictional error in the IAA decision or otherwise argue that it was invalid, leaving the application for a visa unresolved: see, for example, Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; 299 A Crim R 391 at [15].

3. Two more of the offender’s arguments require consideration. First, he relied on the recent decision of Hatahet v The King [2023] NSWCCA 305. The question of principle in that case was whether either the terms of section 19ALB of the Crimes Act 1914 (Cth), or the established practices of the Commonwealth Attorney in relation to the grant of parole, are irrelevant considerations which were required to be disregarded in sentencing the applicant. Basten JA, with whom Davies J and Cavanagh J agreed, held that the Court should not be “blinkered” as to the practical consequences of imposing a non-parole period which has little, if any, utility. His Honour concluded that a lesser sentence should be imposed in order to recognise the fact that the appellant had been in a high security institution which meant that he had suffered a considerably more onerous period of imprisonment and, given his ineligibility for release on parole, would continue to suffer more onerous conditions of imprisonment. The circumstances of that case, including the statutory setting, are far removed from this case and the principle has no application here.

4. Secondly, he argued that it is now accepted that immigration detention in consequence of conviction of a criminal offence can operate as a punishment for the offence (which if administratively inflicted is unconstitutional). In support of that proposition Mr James AM KC relied on Alexander v The Minister for Home Affairs (2022) 96 ALJR 560 (“Alexander”). Thus, he argued, such detention is as much relevant as any other extra curial punishment.

5. Alexander can be left to one side. The issue in that case concerned the revocation of citizenship, not the detention of any person as a consequence of the commission of an offence in Australia (or elsewhere). That said, there is nothing new about the proposition that the adjudgment and punishment of criminal guilt is an exclusively judicial function: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 (“Chu Kheng Lim”). For that reason, it is beyond the constitutional power of the government to enact a law that permits the executive to judge and impose punishment.

6. The identification of what amounts to punishment in this context is not without its difficulties. In the context of the Migration Act, detention has long been understood not to be a form of extra-judicial punishment, but rather, an incident of two executive powers: the first, to receive, investigate and determine an application of an alien for a visa and to admit or deport; and the second, in circumstances where a visa has been cancelled, to arrange for the deportation of the alien. The limits of that power to detain have been more controversial. In Chu Kheng Lim, those limits were expressed to be for a period that is “reasonably capable of being seen as necessary” for one or other of the two legitimate, non-punitive purposes.

7. Until recently, although not disavowing anything said in Lim, the High Court had held that the power to detain effectively allowed for unlimited and potentially permanent detention: Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 (“Al-Kateb”). Most recently, in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (“NZYQ”), the Court reconsidered and overruled that aspect of the decision in Al-Kateb.

8. In NZYQ the Court held that the constitutionally permissible period of executive detention of an alien comes to an end when there is no real prospect of achieving removal of the alien from Australia within the reasonably foreseeable future. On the facts of that case, there was no such prospect and so continued detention of the plaintiff was unlawful.

9. Here, given that the process of determining the offender’s visa application is still on foot, no question of punitive detention currently arises. Further, there is no evidence at all that would allow the Court to determine whether, at any point after the finalisation of the visa application process, there will be any real prospect of removing the offender from Australia or not.

Synthesis

1. In order to determine the appropriate sentence to be imposed upon the offender, I must have regard to all of the matters I have mentioned including the objective seriousness of the offences as I have assessed them to be and the subjective circumstances of the offender together with any aggravating and mitigating factors prescribed by statute. I must also have regard to the statutory guideline provided by the maximum penalty of 5 years in respect of this offence and give effect to the purposes of sentencing found in section 3A of the Crimes (Sentencing Procedure) Act.

2. I accept the submission of the Crown that of particular relevance here is to ensure the offender is adequately punished for the offence, to prevent crime by deterring other persons from committing similar offences, to make the offender accountable for his actions, to denounce the conduct of the offender and to recognise the harm done to the victim and the community.

3. There is no question that, having regard to the purposes of sentencing and the objective seriousness of the offending, the only appropriate sentence is one of full-time imprisonment.

4. The offender submits that, taking into account the time spent in custody, I would find that an appropriate sentence was less than 12 months and then I would consider whether that sentence ought to be served by way of an Intensive Corrections Order. The express basis of that submission was to avoid the consequence of a longer sentence, namely, the failure of the character test under the Migration Act and the possibility of a cancellation or refusal of a visa and then deportation. For the reasons I have given, the submission is misconceived in two respects and I leave it to one side other than to note that there was no submission that a penalty other than imprisonment was available. For that reason, it was unnecessary for me to hear the parties about the impact of the decision in DG v R (No 1) [2023] NSWCCA 320 on the offender’s submissions.

5. It is appropriate, in my view, to impose an aggregate sentence. In accordance with section 53(2A) of the Crimes (Sentencing Procedure) Act, I indicate the sentences I would have imposed in respect of each offence as follows:

6. Count 1: 2 years and 6 months

7. Count 3: 3 years

8. In considering the appropriate aggregate term there needs to be a considerable degree of notional accumulation to reflect the differences between the offending and also to give effect to the principles of totality. It cannot be said here that a sentence for one offence would comprehend and reflect the criminality of the other offence. In the circumstances the appropriate aggregate sentence is 4 years imprisonment.

9. As I will explain shortly, the time that the offender has spent in a combination of custody and in immigration detention will mean, on any calculation of the ratio between the non-parole period and the balance of the term, he has already completed his non-parole period. For that reason, even giving some weight to the rather scant evidence of his mental health and the reasons for it, I do not think there is any warrant to adjust the statutory ratio. For that reason, the appropriate non-parole period is 3 years.

10. In assessing the appropriate commencement date I have regard to the following facts. The offender was arrested and charged with an offence relating to the present matter on 20 February 2019. He was bail refused and held in custody of New South Wales Corrective Services from that day until 10 October 2019. His bridging visa was cancelled on 5 March 2019 as a result of the fact that he had been charged with this offence. He was granted bail on 10 October 2019 but was placed in immigration detention immediately as a result of the revocation of his bridging visa.

11. Although a criminal justice certificate was issued on 21 October 2020 by the New South Wales Director of Public Prosecutions, a delegate of the Minister for Immigration decided to refuse to grant the offender a criminal justice stay visa.

12. Accordingly, the offender has remained in immigration detention since 10 October 2019. In that time, he has predominantly been at the Villawood Immigration Detention Centre in Sydney although he spent approximately 6 months in the detention centre at Yongah Hill in Perth from September 2022 until March 2023.

13. On the material before me I accept that conditions in immigration detention are less onerous than those in a New South Wales correctional facility. It is suggested for example that immigration detainees have access to unmonitored use of mobile phones and internet. Two things may be said about that evidence. First, the principal parallel between custody in a New South Wales correctional institution and in immigration detention is the removal of the person in question from society. There is no question that, absent a legitimate purpose, that can amount to punishment. Secondly, the availability of facilities within the immigration detention centres throughout Australia remain, subject to judicial supervision, within the realm of the executive subject only to the limitations of the power granted to it under the Migration Act. Thus, at one stage, the policy concerning the availability of mobile phones was unilaterally changed by the executive, although that attempt was short lived: see ARJ17 v Minister of Immigration and Border Protection [2018] FCAFC 98; see also SZRWS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2022] FedCFamC2G 447; 369 FLR 167. Those cases reveal that the relative liberties maintained in the immigration detention facilities are jealously guarded by the courts in the exercise of their powers of review.

1. In all the circumstances, however, I consider that it is appropriate to allow an equivalence between the time spent by the offender in immigration detention and in the correctional facilities in New South Wales. The appropriate commencement date of the sentence therefore is 20 February 2019. For that reason, the non-parole period expired on 19 February 2022 and the balance of the term of 1 year expired on 19 February 2023.

Orders

1. I make the following orders:

2. The offender is convicted of two offences of being a person with parental responsibilities, recklessly failing to provide the necessities of life to a child in contravention of section 43A(2) of the Crimes Act 1900.

3. The offender is sentenced to an aggregate term of 4 years imprisonment with a non-parole period of 3 years commencing on 20 February 2019 and which expired on 19 February 2022, and a balance of 1 year which expired on 19 February 2023.

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Decision last updated: 18 December 2023