R v Shrestha

[1991] HCA 26

HIGH COURT OF AUSTRALIA

Brennan, Deane, Dawson, Toohey and McHugh JJ.

THE QUEEN v. SHRESTHA

(1991) 173 CLR 48

20 June 1991

Criminal Law

Criminal Law—Sentence—Imprisonment—Parole—Whether foreign offender with no ties to Australia should be eligible for parole—Commonwealth Prisoners Act 1967 (Cth), s. 4—Offenders Probation and Parole Act 1963 (W.A.), s. 37A.

Decisions

BRENNAN AND McHUGH JJ. On 10 November 1989, his Honour Judge Viol sitting in the District Court of Western Australia sentenced the respondent, Ramesh Shrestha, to a term of imprisonment. Shrestha had been convicted of three offences against s.233B(1) of the Customs Act 1901 (Cth), namely, conspiracy to import a trafficable quantity of heroin, importing a (lesser) trafficable quantity of heroin and having that lesser quantity of heroin in possession without reasonable excuse. Shrestha, two co-accused and another man had arrived in Perth from Nepal via Bangkok on 5 March 1989. Each had a quantity of heroin in plastic bags concealed within his body. They were couriers bringing in the heroin for distribution within Australia. Shrestha was sentenced to 12 years imprisonment on the count of conspiracy and to 7 years imprisonment on each of the other counts, the latter sentences to be served concurrently with each other and with the sentence for conspiracy. His Honour declined to order that Shrestha be eligible for parole, saying:
" I have given consideration to the question of your
eligibility for parole. The matters concerning the facts of the case, your personal circumstances and the fact of your immigration status in my view prevent me in this case from making you eligible for parole. You will therefore not be eligible for parole."

2. Shrestha was given leave to appeal against the severity of his sentence by the Court of Criminal Appeal and, on 21 June 1990, the appeal was allowed. The sentence for conspiracy was reduced to 9 years and the Court ordered that he be eligible for parole in respect of each of the sentences imposed. The present application for special leave to appeal is made in order to challenge the order that Shrestha be eligible for parole. To appreciate the issue for determination, it is necessary to trace the statutory framework affecting the parole of federal offenders.

3. Prior to 17 July 1990, the sentencing power of a court of a State or Territory, exercising federal jurisdiction under a penal law of the Commonwealth, was governed by, inter alia, the Commonwealth Prisoners Act 1967 (Cth). When a "federal offender" (that is, a person convicted of an offence against a law of the Commonwealth: s.3(1)) was convicted before and sentenced by a State court, s.4(1)(b) of that Act provided:
"if, under the law of the State or Territory where the
offender is convicted, a court of the State or Territory is permitted, when sentencing a State offender or a Territory offender to a like term of imprisonment, to fix a lesser term of imprisonment during which the State offender or Territory offender is not to be eligible to be released on parole - the court may fix a lesser term of imprisonment during which the federal offender is not to be eligible to be released on parole." Section 4(2) directed the sentencing court to have regard to the same matters as those to which the court would have regard if the law of the particular State or Territory were applicable. The laws of the several States are not uniform in their prescription of the matters to which regard might be had in determining whether to make or to refuse to make an order enabling or entitling an offender to be released on parole before the expiry of the head sentence (hereafter referred to as an "eligibility-for-parole order").

4. In Western Australia, eligibility for parole is governed by the Offenders Probation and Parole Act 1963 (W.A.), s.37A of which reads as follows:
" (1) Where a court sentences a person convicted of an
offence to a term of imprisonment the court may, if it considers that the making of an order under this subsection is appropriate, order that the convicted person be eligible for parole.

(2) Where an order is made under subsection (1) in respect of a term of imprisonment the convicted person is eligible to be released from prison on parole - (a) where the term is not more than 6 years - after having served one-third of the term; or

(b) where the term is more than 6 years - after having served 2 years less than two-thirds of the term.

(3) In determining whether the making of an order under subsection (1) is appropriate the court may have regard to all or any of the following - (a) the nature of the offence; (b) the circumstances of the commission of the offence;

(c) the antecedents of the convicted person; (d) circumstances which are relevant to the convicted person or which might, in the opinion of the court, be relevant to the convicted person at the time at which the convicted person would become eligible to be released from prison on parole if an order was made under subsection (1);

(e) any other matter that the courts thinks relevant. (4) Where a convicted person is before a court for sentencing in respect of more than one offence and the court sentences the convicted person to more than one term of imprisonment, the court may - (a) make an order under subsection (1) in respect of one of those terms; or

(b) make orders under subsection (1) in respect of 2 or more of those terms,

but shall not make an order under subsection (1) in respect of a term of imprisonment comprising the aggregate of 2 or more terms, whether cumulative or concurrent. ..."

In Western Australia, the court does not fix a non-parole period; a non-parole period is fixed by statute once the court makes an order that the offender be eligible for parole. This case was argued on the assumption that a non-parole period fixed by and in accordance with s.37A(2) is "a lesser term" which the State court is "permitted ... to fix" for the purposes of s.4(1)(b) of the Commonwealth Prisoners Act. That assumption treats an order that an offender be eligible for parole as fixing, albeit indirectly, a non-parole period calculated in accordance with the Offenders Probation and Parole Act. Adopting that assumption, which was common to the argument of both applicant and respondent, the respondent will be eligible for parole after serving 4 years imprisonment: see s.37A(2)(b) and (4) of the Offenders Probation and Parole Act and s.4(6) of the Commonwealth Prisoners Act.

5. A power to release an eligible federal offender on parole was vested in the Governor-General acting with the advice of the Attorney-General: Commonwealth Prisoners Act, ss.3(2) and 5. Section 5 of that Act, in its relevant parts, read as follows:
" (1) Subject to this section, the Governor-General may,
in his discretion, by order in writing direct that a person, being a person who is serving a term of imprisonment for an offence against a law of the Commonwealth in respect of which a minimum term of imprisonment has been fixed, be released from prison on parole at a time specified in the order, being a time that is after the expiration of that minimum term of imprisonment.

(2) An order under the last preceding sub-section in relation to a person is sufficient authority for the release of the person from prison. ...

(4) A parole order - (a) shall be expressed to be subject to the condition that the person to whom it relates shall, during the parole period, be subject to the supervision of a parole officer appointed in accordance with the order and shall obey all reasonable directions of that officer; and

(b) is subject to such other conditions, if any, as are specified in the order.

(5) The Governor-General may, at any time before the expiration of the parole period, by order in writing - (a) amend a parole order by varying or revoking a condition of the order, other than the condition referred to in paragraph (a) of the last preceding sub-section, or by imposing additional conditions; or

(b) revoke the parole order. ..."

Section 5 thus conferred on the Governor-General, not on a parole board, a discretionary power to order that an eligible federal offender who has served the minimum term of imprisonment be released on parole. In addition to the power conferred by s.5 of the Commonwealth Prisoners Act, a power to grant a licence to a federal offender to be at large was vested in the Governor-General by s.19A of the Crimes Act 1914 (Cth). A licence to be at large is authority for the offender's release from prison (sub-s.(3)); it may be subject to conditions (sub-s.(4)) and the conditions may be varied or the licence revoked (sub-s.(5)) or, in the event of breach of a condition, cancelled (sub-s.(8)). If a licence is revoked or cancelled, the offender is liable to serve the balance of his term in prison (sub-s.(10)).

6. The provisions which conferred the powers to release a federal offender on parole or on licence were repealed and replaced by the Crimes Legislation Amendment Act (No.2) 1989 (Cth). That Act inserted in the Crimes Act a new Pt 1B - Sentencing, Imprisonment and Release of Federal Offenders - with effect from 17 July 1990. The Commonwealth Prisoners Act and s.19A of the Crimes Act (as it then stood) were repealed: ss.29 and 9 of the Crimes Legislation Amendment Act (No.2). Transition provisions preserve the effect of non-parole periods fixed prior to 17 July 1990 (s.30) and the effect of licences to be at large that were already granted: s.24. However, this case was argued on the footing that this Court should determine the issue before it by reference to the legislation that was in force at the time when the Court of Criminal Appeal pronounced the sentence imposed in substitution for the sentence imposed by the trial judge. That may well be the right approach (Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan (1931) 46 CLR 73, at pp 109-111; Norwest Refrigeration Services Pty. Ltd. v. Bain Dawes (W.A) Pty. Ltd. (1984) 157 CLR 149, at pp 162-163) although it glosses over the possibility that provisions such as s.30 of the Crimes Legislation Amendment Act (No. 2) might have an effect on the exercise of this Court's appellate jurisdiction.

7. The law affecting the parole of federal offenders was substantially changed by the Crimes Legislation Amendment Act (No.2) in two respects that are material to the respondent. Under the relevant provisions of the Western Australian law which had effect prior to 17 July 1990, a judge had a discretion to make an order that the offender be eligible for parole and was entitled to have regard not only to the nature and circumstances of the offence and the antecedents of the offender (the matters referred to in pars (a), (b) and (c) of s.37A(3) of the Offenders Probation and Parole Act) but also to the matters referred to in pars (d) and (e) of that sub-section. Under the Crimes Act as amended with effect from 17 July 1990, a judge is required to make an order fixing a non-parole period in the circumstances mentioned in ss.19AB, 19AC and 19AD but has a discretion to decline to make such an order if satisfied that it is not appropriate to do so having regard to the nature and circumstances of the offence and the antecedents of the offender; the matters referred to in pars (d) and (e) of s.37A(3) of the Offenders Probation and Parole Act are not mentioned: see s.19AE.

8. In this case, the general question which the applicant seeks to raise is whether it is an appropriate exercise of discretion by an Australian court to make an eligibility-for-parole order in a case exhibiting the same features as those in the present case (including the offender's liability to deportation). That question can be considered only within the framework of the statute which creates the power to make an eligibility-for-parole order. If this case is governed by s.37A of the Offenders Probation and Parole Act, its determination might depend merely on a construction and application of pars (d) and (e) of sub-s.(3) of that section. Paragraph (d) has no counterpart in the laws of other States and no counterpart in the Crimes Act provisions which now govern the release of federal offenders. Paragraph (e) has no counterpart in some of the laws of the other States and none in the Crimes Act.

9. When a party, seeking special leave to appeal, submits that an issue is worthy of consideration on appeal but the raising of the issue depends on the operation of a complex of statutory provisions, the party seeking the grant of special leave should demonstrate, not assume, that the operation of the statutory provisions does in truth give rise to the issue. The applicant omitted to demonstrate that proposition in this case. It is unsatisfactory for this Court to declare the law on an assumption as to the operation of statutes when the assumption might, on closer analysis, be flawed. However, in Western Australia a construction has been placed on par.(d) which excludes consideration, for the purpose of determining whether an eligibility-for-parole order should be made, of the likelihood of deportation of a federal offender who is a foreign national and resident on the expiration of a custodial sentence for a serious crime committed in this country: see Weng Keong Chan (1989) 38 A Crim R 337. If we leave out of account pars (d) and (e) in deciding whether that matter is within the range of relevant considerations, this case can be decided by reference to pars (a), (b) and (c) of s.37A(3) which identify the matters to which reference might legitimately be made under that Act in terms which correspond with s.19AE(1) of the Crimes Act as amended. Those matters at least are common to the laws of a majority of the States which confer on their courts a discretion in respect of eligibility-for-parole orders: see the Penalties and Sentences Act 1985 (Vict.), s.17; the Sentencing Act 1989 (N.S.W.), s.6; the Parole Act 1975 (Tas.), s.12B(1); and cf. the Criminal Law (Sentencing) Act 1988 (S.A.), s.32(5). The Queensland provisions (Pt IV of the Corrective Services Act 1988 (Q.)) provide for automatic eligibility for parole after serving a period of imprisonment as specified by s.166(1) (a period which might be varied by a judicial recommendation specifying a shorter or longer period). It is possible to determine this application by reference only to the matters referred to in pars (a), (b) and (c) of s.37A(3) of the Offenders Probation and Parole Act, and it is desirable to grant special leave to appeal in order to do so. On that footing, the determination of this case can assist in the application of the laws of the States (other than Queensland) where eligibility for parole depends upon the making of a judicial order and in the application of s.19AE(1) of the Crimes Act as amended which empowers a court to decline to make an eligibility-for-parole order where it is satisfied that it is not appropriate to do so "having regard to the nature and circumstances of the offence or offences ... and to the antecedents of the person". Except in marginal cases (and this is not such a case), the sentencing judge's decision as to whether an eligibility-for-parole order is appropriate will not turn on the form of the discretion, that is, on whether the discretion is to make such an order or to decline to make such an order.

10. By way of background to the argument which the applicant advances in this case, it is desirable to set out what was said to be the practice of Commonwealth authorities as to the deportation of non-citizens who enter Australia on temporary entry permits issued under the Migration Act 1958 (Cth) and who are sentenced to periods of imprisonment for serious crimes. This statement of the practice is taken from the judgment of Marks J. in Reg. v. Binder (1990) VR 563, at pp 566-567:
"In the case of a prisoner who is a foreign citizen in
Australia on a temporary entry permit under s.6 of the Migration Act 1958 (Cth) the prisoner becomes a prohibited non-citizen under s.7(3) when the period specified in the permit expires. Such a person may apply for a further temporary entry permit to remain in Australia under s.7(2) but the policy of the department is not to grant such an application unless the applicant satisfies certain criteria including that he is of good character and has a bona fide purpose to remain in Australia. A prisoner may also apply for the grant of an entry permit to remain in Australia permanently but such an application will only be granted if he satisfies a condition set out in s.6A(1) of the Migration Act. If the department determines that the prisoner does not satisfy any of those conditions a deportation order may be signed by the Director of the Department for the State of Victoria under s.18 on the ground that the prisoner is a prohibited non-citizen. It is the practice of the department to execute the order when the person is released from custody. (Sections 6, 6A and 7 of the Migration Act have been repealed: see now ss.14 and 34 and the Migration Regulations, Pt 2, Div.2 and Pt 3.)

We have been similarly informed of the practice and policy of the Attorney-General's Department in relation to the detention and release of persons sentenced to imprisonment for the commission of federal offences. Where a federal offender has been sentenced to imprisonment and a non-parole period specified and the Minister for Justice recommends the prisoner be released on parole under s.5 of the Prisoners Act 1967 or on a licence to be at large under s.19A of the Crimes Act 1914 (Cth), the minister signs a recommendation to the Governor-General and approves the form of parole order or licence to be at large for the prisoner to be released on completion of his non-parole period. If a deportation order has been signed or an offender may be liable to be deported he is always released on licence. If deported the licence provides that he is not to return to Australia until the licence period has expired. It is the practice of the Department of Immigration to make decisions regarding deportation close to the date the person is possibly to be released from prison."

11. In the grounds of appeal, the applicant contended for a principle that mere liability to deportation is negatively decisive of the question as to whether or not eligibility for parole should be ordered. That proposition is in flat contradiction of the law as now prescribed by s.19AK of the Crimes Act. Section 19AK reads: " Where a person is convicted of a federal offence, a
court is not precluded from fixing a non-parole period in respect of the sentence imposed for that offence merely because the person is, or may be, liable to be deported from Australia." The contention set out in the notice of appeal was abandoned in argument in favour of a more narrowly confined submission. The submission of counsel for the applicant identifies a category of offenders in respect of whom, it is said, no judicial order allowing parole should be made. The category is defined as follows: foreign nationals and foreign residents who have no ties with this country and who have come to this country for the sole purpose of committing serious crimes and then departing forthwith. We take the phrase "foreign nationals and foreign residents" to mean non-citizens who do not ordinarily reside in Australia.

12. Judicial views as to the appropriateness of making eligibility- for-parole orders in favour of offenders in the nominated category have differed. The question has arisen in a series of cases similar to the present case, that is, cases where a foreign offender has entered Australia for the purpose of importing or distributing a trafficable quantity of a prohibited drug and who would have left Australia after completing his criminal purpose had he not been apprehended. In Reg. v. Chapman (1971) 1 NSWLR 544 the Court of Criminal Appeal refused to specify a non-parole period, following the view, first expressed in Reg. v. Hull (1969) 90 WN (Pt.1) (N.S.W.) 488 and affirmed in Reg. v. Macaulay (1969) 90 WN (Pt.1) (N.S.W.) 682, that many aspects of parole are not appropriate in the case of an offender who will be deported so soon as he is released from custody. However, in Reg. v. Riche (1977) 2 NSWLR 876, the same Court rejected the proposition that Hull, Macaulay and Chapman had laid down any general proposition that "non-parole periods should not be specified where aliens are sentenced to imprisonment or penal servitude in such circumstances as to expose them to the prospect of being deported": at p 878. Riche, though an alien, had been an Australian resident for some years and was apprehended carrying drugs on his return to Australia from an overseas holiday. However, the rejection of the general rule, for which the earlier cases had been thought to be authority, that non-parole periods would not be specified in the case of an alien offender whose crime had rendered him liable to deportation was taken a step further in Reg. v. Mesdaghi (1979) 2 NSWLR 68, where it was held that, under s.4(3) of the Parole of Prisoners Act 1966 (N.S.W.), the prospect of deportation is not an admissible or relevant factor to be considered in the exercise of a discretion to withhold the specification of a non-parole period (at p 71). It was said that that factor did not fall within either of the statutory grounds for withholding specification of a non-parole period, namely, the nature of the offence or the "antecedent character" of the offender. Thereafter the Probation and Parole Act 1983 (N.S.W.) added a further ground for declining to specify a non-parole period: "any other reason which the court considers sufficient" (s.21(1)(b)). Nevertheless, in Reg. v. Chi Sun Tsui (1985) 1 NSWLR 308, the same view as that expressed in Mesdaghi was embraced by reason of a provision in the Act which declared that parole should not be refused "by reason only that ... the prisoner may become liable to be deported". Street C.J. (at p 311) held that -

"the prospect of deportation is not a relevant matter for
consideration ..., in that it is the product of an entirely separate legislative and policy area of the regulation of our society".

13. In Western Australia, where (prior to an extensive amendment in 1987) s.37 of the Offenders Probation and Parole Act specified the grounds of justification for declining to fix a non-parole period to be "the nature of the offence and the antecedents of the convicted person", the Court of Criminal Appeal refused to take account of the practice of deporting alien offenders on, but not prior to, the expiry of the custodial sentence. In Bensegger v. The Queen (1979) WAR 65, Burt C.J. noted that s.12 of the Migration Act (now see s.55) conferred power on the Minister to order the deportation of an alien "upon the expiration of, or during, any term of imprisonment" (emphasis added). His Honour said, at p 71:
"If and to the extent that the Minister exercises that power
during any time of imprisonment being served, whether in custody or on parole, it may then be said the alien prisoner has not served the term of his sentence then outstanding. But that is not a matter which in any way affects the exercise of the discretion of a judge exercising jurisdiction under the Offenders' Probation and Parole Act to decline to fix a minimum term under s 37 of that Act and I emphatically reject the submission that in the exercise of that discretion the court should have any regard to the practice referred to by counsel. Indeed I think it would be improper and positively wrong to do so. It is unthinkable that a court should ignore the criteria laid down for the exercise by it of its discretion and decline to make an order with the intention expressed or unexpressed that it should operate so as to deny the occasion for the exercise by the Governor-General of a discretion which has been conferred upon him by statute. And this is so whether or not there exists such a 'practice' by which the discretion of the Minister is or usually is exercised."

14. In Zaharoudis and Salihos (1986) 22 A Crim R 233 the Court of Criminal Appeal of Western Australia were unanimous in holding that a sentencing judge acted on a wrong principle when he refused to fix a non-parole period for drug couriers on the ground that the offenders were aliens with "no right to remain here as free citizens". However, the Court upheld the sentencing judge's refusal to fix a non-parole period, Burt C.J. saying (at p 238):
"There is nothing to be found within the nature of the
offence or the circumstances of its commission which would lead one to conclude that a minimum term was appropriate. It may be conceded that each applicant has no prior criminal record but it is the case that each, with his eyes open, came to Australia illegally and that each deceived the authorities as to the purpose of his visit, and each came for one purpose only, that being to import narcotics in bulk and for profit. As each applicant came to be sentenced that conduct had become part of his antecedents and when considered in what otherwise may be said to be a neutral context, I do not think that the antecedents of either applicant, considered separately, can reasonably sustain the opinion that the fixing of a minimum term was appropriate. Nor when considered together with the nature of the offence or the circumstances of its commission, could they, in reason, sustain that opinion." That case was followed in Breuer and Chaney (1986) 32 A Crim R 1 where Burt C.J. (with whom Kennedy J. agreed) held (at p 7) that the foreign nationality of an offender by itself is an "entirely neutral" consideration while Brinsden J. held the view (at p 10) that the fact that an alien offender is a prohibited immigrant liable to deportation immediately on leaving prison is "a matter which can be taken into account though not ... itself decisive."

15. In the present case, Malcolm C.J., speaking for the Court of Criminal Appeal, thought that the remarks of Burt C.J. in Zaharoudis, cited above, applied to the respondent "save for his particular personal circumstances". His Honour said:
"In my opinion, having regard to the statutory criteria in
s.37A(3) and, in particular, paras. (d) and (e) of that sub-section, I am of the opinion that the learned Judge was in error in this particular case in not making an order that Ramesh (Shrestha) be eligible for parole. But for his status as a non-resident, the circumstances were such that, had he been a resident of Australia, it was likely that he would have been regarded as eligible for parole. I note that the Prisoners (Release for Deportation) Act 1989 has not yet been proclaimed. Consequently, it is not appropriate to have regard to its provisions. If one did so, however, they would tend to reinforce the appropriateness of eligibility for parole in this case." In earlier cases, the mere nationality of the offender had been held to be an irrelevant or neutral consideration (a proposition with which we respectfully agree); in this case, the residence of the non-citizen offender was held to be irrelevant or of little relevance. That was a new departure.

16. In Victoria, the Court of Criminal Appeal considered the approaches taken in the cases in New South Wales and Western Australia in Reg. v. Binder. Marks J., in whose judgment Crockett J. agreed, held that the question whether an eligibility-for-parole order should be made was unaffected by the nationality of the offender or the extent of the ties between that offender and Australia. His Honour then rejected the submission that, having regard to the practice of Commonwealth authorities, the effect of fixing a minimum term was simply that non-resident non-citizens would serve only that term and, on release from custodial sentence, would be returned to their homeland without any prospect of submitting to the supervision that was an integral part of the parole regime. Marks J. said (at pp 569-570)
" To this I think there is a ready answer. The task of
the court is to sentence offenders on the basis that they are, in accordance with the rule of law, all equal before the law. If two offenders, one a national and the other a non-national, each receive according to proper sentencing principles the same sentence and in the case of the national a minimum term is fixed, it is not in my opinion proper that the court decline to fix a minimum term for the non-national by reference only to a forecast about the effect of executive policy on the service of the term imposed. It is not a correct discharge of the sentencing function to take into account the possible effect of present executive policy on the term of imprisonment the court proposes."

17. The solution to the problem of parole for a foreign offender depends, in our opinion, on three matters: first, on the construction and operation of the statute which prescribes the considerations to which regard might be had in making or refusing to make an eligibility-for-parole order; next, on the purpose and incidents of a judicial eligibility-for-parole order; and, finally, on the extent to which and the manner in which an executive practice may be taken into account in exercising a judicial discretion.

18. Before turning to these matters, it is desirable to recall that an eligibility-for-parole order is part of a sentence, and the discretion which is exercised in framing an appropriate sentence in a given case calls for an evaluation of all the relevant circumstances and a consideration of all the sentencing options which are available to the sentencing judge. It is one thing to identify sentencing principles which must govern the imposition of a sentence, to appreciate in some instances the priority of one principle over another (as to which, see Veen v. The Queen (No.2) (1988) 164 CLR 465) and to attribute the appropriate weight to matters which must be evaluated for the differing purposes of determining a head sentence and determining a non-parole period: see, for example, Bugmy v. The Queen (1990) 169 CLR 525. It is another thing to attempt an artificial division of the indivisible process of determining the appropriate sentence to be imposed. Subject to statute, a decision whether to make an eligibility-for-parole order is an integral part of the process of determining the appropriate sentence; it is not an afterthought once the head sentence has been selected. That is not to say that the nature and purpose of an eligibility-for-parole order is to be overlooked or that, when the statute creates an executive discretion to grant or refuse parole on the expiry of the non-parole period, that period is to be regarded as the true limit of custodial punishment for the offender, the balance of the head sentence being no more than a brutum fulmen by which the court expresses disapproval of the offence.

19. As the making or refusal of an eligibility-for-parole order is an exercise of discretion, it is not possible on appeal to correct an apparently regular order unless it is shown, either expressly or inferentially, that some irrelevant matter has been taken into account or some relevant matter has been left out of account in making or refusing the order, that the discretion has been exercised for a purpose different from that for which it was conferred, or that some other error of principle or some mistake of fact has affected the sentence imposed: House v. The King (1936) 55 CLR 499, at p 505. A statute which prescribes the relevant matters to be taken into account to be the nature and circumstance of the offence and the antecedents of the offender leaves for judicial evaluation not only the objective circumstances of the offence but all the relevant conduct and personal circumstances of the offender up to the time when sentence is passed, as Burt C.J. pointed out in Zaharoudis: see, as to the scope of "antecedents", the observations of Windeyer J. in Cobiac v. Liddy (1969) 119 CLR 257, at pp 276-277. Those are the past facts to which regard may be had, but the court must also consider whether the purposes of parole can be fulfilled if an eligibility-for-parole order be made. If those purposes are unlikely to be fulfilled, the case is not one in which an eligibility-for-parole order is appropriate.

20. The purposes of the parole regime have been considered by this Court on several occasions, but it is sufficient to state those purposes as they were stated in the judgments in Bugmy. The division of opinion in that case was not on a point of principle but on differing views as to whether the matters taken into account in making the eligibility-for-parole order had been evaluated for the purpose of determining the non-parole period or whether they had been evaluated as though the purpose was the determination of the head sentence. Mason C.J. and McHugh J. referred to the purposes of parole in these terms (at pp 530-531):
" It has been said that '(t)he intention of the
legislature is that a minimum term is a benefit to the prisoner': Iddon and Crocker v. The Queen ((1987) 32 A Crim R 315, at pp 325-326); and so it is. The effect of fixing a minimum term is that the Parole Board may thereafter, in the exercise of its discretion, grant parole: Corrections Act 1986 (Vict.), s. 74(1); Community Welfare Services Act 1970 (Vict.), s. 195(1), since repealed. But that does not mean that the sentencing judge, in fixing the minimum term, approaches the task on the footing that he or she is solely or primarily concerned with the prisoner's prospects of rehabilitation. Power v. The Queen ((1974) 131 CLR 623) put paid to that notion. Barwick C.J., Menzies, Stephen and Mason JJ. observed (at p 628): 'In a true sense the non-parole period is a minimum

period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention.'

After pointing out that the fixing of the non-parole period was concerned with deterrence (at p 628), their Honours went on to say (at p 629): ' To read the legislation in the way we have suggested fulfils the legislative intention to be gathered from the terms of the Act, i.e. to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.'

That comment was repeated in the unanimous judgment of the Court in Deakin ((1984) 58 ALJR 367, at p 367; 54 ALR 765, at p 766). See also Reg. v. Paivinen ((1985) 158 CLR 489, at p 495); Reg. v. Watt ((1988) 165 CLR 474, at p 481)."

Their Honours approved (at p 531) the observation of Jenkinson J. in Morgan and Morgan (1980) 7 A Crim R 146, at p 155. His Honour there said:

"the minimum term is fixed by reference to both misericordious and utilitarian considerations. Nor is the minimum term fixed without regard to all those other interests of the community which imprisonment of offenders is designed to serve. ... They will be considered again when the minimum term is being fixed, when they will be balanced against the advantages to the community which release on parole is thought likely in the particular circumstances to confer, and against whatever degree of mitigation mercy to the offender may claim without injustice."

Dawson, Toohey and Gaudron JJ. said (at p 536):

"The practical effect of fixing a minimum term is that thereafter the Parole Board may, but of course need not, grant the prisoner parole: Corrections Act, s. 74(1). That is not to say that the minimum term should be seen as the shortest time required for a paroling authority to form a proper view of the prisoner's prospects of rehabilitation. That approach was rejected in Power v. The Queen. Referring to Power, this Court said in Deakin v. The Queen (at p 367; p 766): 'The intention of the legislature in providing for the fixing of minimum terms is to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.'"

Their Honours cited with approval (at p 538) another passage from the judgment of Jenkinson J. in Morgan, at p 154:

"The term of the sentence is the period which justice according to law prescribes, in the estimation of the sentencing judge, for the particular offence committed by the particular offender. The ... minimum term is the period before the expiration of which release of that offender would, in the estimation of the sentencing judge, be in violation of justice according to law, notwithstanding the mitigation of punishment which mercy to the offender and benefit to the public may justify."

It is clear that, although a minimum term is a benefit for the offender, it is a benefit which the offender may be allowed only for the purpose of his rehabilitation and it must not be shortened beyond the lower limit of what might be reasonably regarded as a condign punishment. Moreover, the release of an offender for the purposes of rehabilitation through conditional freedom is not to be seen solely as a mercy to the offender but also, and essentially, as a benefit to the public.

21. In determining whether an eligibility-for-parole order should be made in the case of a non-resident non-citizen who has been involved in planning a serious crime and who comes to this country to commit it intending then to leave - all matters comprehended by the nature and circumstances of the offence and the antecedents of the offender - a court may frequently be unable to discover either a reason for extending greater mercy to the offender than that reflected in the head sentence or a ground for reducing the period in custody in order to allow an opportunity for rehabilitation as a benefit to the public. That was the approach of Burt C.J. in Bensegger and Zaharoudis, and the approach is valid.

22. That is not to say that the court discriminates against non-citizens, but the fact that an offender is not and is not likely to become a resident is material in considering whether there is any public benefit by way of rehabilitation to be gained by an early release to conditional freedom. If an offender, who is not and is not likely to become a part of the Australian community, comes to this country and attacks the peace and order of the community by the commission of a serious crime, the public interest may be served by imposing a custodial sentence on him, but will seldom be served by his early release in favour of his "rehabilitation through conditional freedom".

23. So to hold is not to subordinate the proper exercise of a judicial discretion to the exigencies of executive policy. Justice according to law cannot be moulded by the exercise of executive power. But the administration of justice according to law cannot be blinkered merely because the likelihood of the occurrence of a material fact depends on the implementing of executive policy; much less can it ignore the laws which prescribe a regime the proper understanding of which is essential to the informed performance of the court's function.

24. A non-citizen who enters this country on a temporary entry permit or a time-limited visa becomes an illegal entrant on the expiry of the entry permit or the visa (Migration Act, ss.14(3),18) and is liable to be deported: ss.59,60. If the non-citizen, having lawfully entered this country under a temporary entry permit or time-limited visa, were to apply for a further entry permit to remain here after the expiry of the permit or visa, the Minister could grant the further entry permit only where it appears to the Minister that the applicant is entitled to be granted an entry permit: s.34. An applicant who has been sentenced to imprisonment for not less than one year cannot, generally speaking, satisfy the public interest criteria governing the grant of entry permits of the relevant kind (Migration Regulations, regs.2,4,120,125,143) and is thus unlikely to be lawfully entitled to remain in Australia after his release from custody, assuming that his entry permit or visa has expired or been revoked prior to his release. How, then, could the court be satisfied that the offender will be allowed to remain in Australia under parole supervision or that his freedom, after deportation, will in any real sense be conditional? It would be erroneous for a court imposing a sentence for a serious crime to make an eligibility-for-parole order on the footing that it is likely that the offender will be able to benefit from his parole or that the community will be benefited by his rehabilitation through parole when the offender, on his release from custody, is likely to be and to continue to be an illegal entrant and thus liable to be deported.

25. Apart from the statutory provisions, the prospect of an offender's benefiting from parole and the Australian community's interest in the rehabilitation of a non-citizen non-resident who has committed a serious crime cannot be assessed without reference to the likelihood of the offender's deportation on release from custody. To take cognizance of the policy which affects the exercise of a power to deport is to have regard to a circumstance relevant to the evaluation of these matters. To say that the policy may change is merely to say that the prospect of deportation is not a certainty. If, forming the opinion that the offender is likely to be deported were he released on parole, the court determines that an eligibility-for-parole order should not be made, the court has not subordinated its function to the executive power; it has simply taken account of the effect of a likely and valid exercise of an executive power on the offender's availability to serve the remainder of his sentence on parole - a consideration which is material to the proper exercise of the court's discretion. When the offender is in the category of federal offenders identified in the submission of counsel for the applicant, the material considerations which bear on the exercise of the court's discretion to make or to decline to make an eligibility-for-parole order will generally preclude the making of an eligibility-for-parole order, at least where the offender is involved in the planned importation or distribution of a trafficable or commercial quantity of a prohibited drug. In such a case, the nature and circumstances of the offence will be serious, the antecedents of the offender will seldom warrant the extending of mercy beyond that reflected in the head sentence, and the likelihood of the Australian community's benefiting from the rehabilitation of the offender will be remote. Any benefit which the offender may derive from early release will be simply by reason of the mitigation of his punishment, but it will not be mitigation "in favour of his rehabilitation through conditional freedom".

26. In Breuer and Chaney, where the court upheld a refusal to make an eligibility-for-parole order, Burt C.J. (at pp 5,6) referred to what had been said in Reg. v. Tait (1979) 46 FLR 386, at p 399; 24 ALR 473, at p 485, as stating considerations which reflect appropriately the nature and circumstances of an offence of involvement in large-scale drug importations:
" On the other hand, the deterrent aspect of punishment
is of primary importance in cases of this kind. The sentence should demonstrate to others tempted to engage in lawlessness on a vast scale that the punishment to be imposed will be calculated to protect society from the deliberate attack made upon it. When an organized, costly and complex offence is contemplated, the risk of apprehension and the severity of punishment is evaluated; and thus there can be no other class of case in which the deterrent effect of punishment can more confidently be assumed to operate. Those who deliberately choose to run the risk of punishment in order to acquire a profit from the venture cannot point to mitigating circumstances of the sort which stand the chance offender in good stead. The extent to which a sentence recedes from the maximum in cases of this kind is limited by the necessity to impose sentences of unequivocal severity as the most efficient means available to the courts to enforce the relevant prohibition."

27. In cases where the Australian community is likely to derive a benefit from the rehabilitation of an offender, deterrence may have to yield on occasions to the need to allow an opportunity for rehabilitation through conditional freedom, but deterrence always remains a factor in the making of an eligibility-for-parole order and in the judicial fixing of a non-parole period, as the judgments in Bugmy recognize. And thus, when it is likely that, on release from any contemplated period of imprisonment, the offender will be an illegal entrant and will be deported, an eligibility-for-parole order will be justified only in an exceptional case.

28. In the present case, the respondent was not and is not likely to become an Australian resident; his offence was serious as the head sentence indicates; his antecedents showed little ground for extending mercy beyond that reflected in the head sentence. The Court of Criminal Appeal was in error in regarding the residential status of the offender as irrelevant; that Court ought to have dismissed the appeal against the refusal by Judge Viol to order that the respondent be eligible for parole.

29. We would grant special leave to appeal, allow the appeal to this Court and vary the order of the Court of Criminal Appeal by deleting the order that the respondent be eligible for parole in respect of the sentences imposed.

DEANE, DAWSON AND TOOHEY JJ. Under the legislation of the various Australian jurisdictions, a judge sentencing a convicted person to a term of imprisonment is required to decide whether it is appropriate or inappropriate that, after service of a designated part of the sentence of imprisonment imposed, the convicted person should be eligible to be considered for release on parole (see Offenders Probation and Parole Act 1963 (W.A.), s.37A; Sentencing Act 1989 (N.S.W.), s.6; Penalties and Sentences Act 1985 (Vic.), s.17; Corrective Services Act 1988 (Q.), s.166; Criminal Law (Sentencing) Act 1988 (S.A.), s.32; Parole Act 1975 (Tas.), s.12B; Parole of Prisoners Act (N.T.), s.4; Parole Act 1976 (A.C.T.), s.7; Crimes Act 1914 (Cth), s.19AG). The form in which that question arises will vary from jurisdiction to jurisdiction according to the applicable statutory provisions. The consequences of an order for eligibility will likewise vary. The variations in the form of order and its consequences are, however, peripheral to the general and unqualified submission propounded by the learned Commonwealth Director of Public Prosecutions on behalf of the Crown on this application for special leave to appeal. That general submission is that it can never be open to a court to determine otherwise than that it is inappropriate that a convicted person be eligible at some future time for release on parole if that convicted person is within a particular category of offender to which the respondent admittedly belongs. That category was defined by the Crown as consisting of "foreign offenders who have no ties to this country, and whose sole purpose in entering Australia is to commit serious crimes". It is convenient to turn at once to a consideration of that general submission.

2. The basic theory of the parole system is that, notwithstanding that a sentence of imprisonment is the appropriate punishment for the particular offence in all the circumstances of a case, considerations of mitigation or rehabilitation may make it unnecessary, or even undesirable, that the whole of that sentence should actually be served in custody. In some cases, of course, those considerations may be so compelling at the time of sentencing that, consistently with the need for punishment and deterrence, any sentence of imprisonment should be suspended or deferred upon entry into a good behaviour bond or recognizance, with the result that imprisonment may never take place. In most cases, however, a suspension or deferral of the appropriate term of imprisonment will not be justified. In such an event and subject to some exceptions where a prisoner is automatically entitled to release on parole at the expiry of the non-parole period upon conditions then determined by the parole authority (see Correctional Services Act 1982 (S.A.), s.66; Crimes Act (Cth), s.19AL(1)), the parole system allows for a review of the offender's case after he has actually served a significant part of a custodial sentence, for the purpose of deciding whether he should be released on parole at that stage. At the time of that review, the reviewing authority should have available to it up-to-date information about the prisoner's conduct while in custody, his current attitudes, his present circumstances and the prospects of his rehabilitation in the community if he be released on parole. Obviously, a reviewing authority with that up-to-date information should be in a better position to determine whether it is appropriate that the prisoner be then released on parole than the sentencing judge would have been at the time, often years before, when the head sentence of imprisonment was imposed and a minimum non-parole period was fixed. Thus, and subject to the above- mentioned exceptions, it is a central aspect of the working of parole systems in this country that the function performed by the sentencing judge in relation to parole is to determine whether it is appropriate or inappropriate that the convicted person be eligible to be considered by the parole authority for release on parole at some future time. Even in the exceptional case where an offender is, at the expiry of the non-parole period, entitled to be released on parole on conditions then fixed by the parole authority, the power of the parole authority to determine the applicable conditions (see Correctional Services Act (S.A.), s.66; Crimes Act (Cth), s.19AN) provides real scope for determining at that stage what is appropriate in all the circumstances of the particular case. It is not, however, necessary to consider the extent to which the function of a sentencing judge differs in those exceptional cases and we put them to one side for the purposes of the present judgment.

3. The fact that considerations of mitigation and rehabilitation will ordinarily found a decision that a prisoner be released on parole does not mean that they are the only considerations which are relevant to the question (for the sentencing judge) whether a convicted person should be eligible for release on parole at some future time or to the subsequent question (for the parole authority) whether the prisoner should be actually released. All of the considerations which are relevant to the sentencing process, including antecedents, criminality, punishment and deterrence, are relevant both at the stage when a sentencing judge is considering whether it is appropriate or inappropriate that the convicted person be eligible for parole at a future time and at the subsequent stage when the parole authority is considering whether the prisoner should actually be released on parole at or after that time. Thus, in Power v. The Queen (1974) 131 CLR 623, at p 629, Barwick C.J., Menzies, Stephen and Mason JJ. drew attention to the fact that the legislative intent to be gathered from the terms of the parole legislation applicable in that case (Parole of Prisoners Ordinance 1971 (A.C.T.), s.4) was to provide for possible mitigation of the punishment of the prisoner only when the stage is reached where "the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence". This approach has been consistently accepted in subsequent cases in this Court (see Bugmy v. The Queen (1990) 169 CLR 525, at p 536). Except where it is inappropriate that a convicted person should ever be considered for release on parole, the sentencing judge must formulate an overall sentence, including a non-parole period, at the end of which the parole authority must determine, according to the circumstances which then exist, whether the offender should be released on parole.

4. It would be closing one's eyes to reality to deny that the parole system is sometimes abused and is often ineffective. Nonetheless, in a society where imprisonment for the punishment of crime is accepted as being sometimes unavoidable, the parole system represents an important influence for the reform and rehabilitation of those in gaol. In a case where subsequent eligibility for parole is not precluded by order of the sentencing judge, the indeterminate nature of the period (within the confines of the head sentence) which will actually be served in custody provides the offender with "a basis for hope of earlier release and in turn an incentive for rehabilitation" (see Bugmy, at p 536). From this flow two significant and valuable consequences. The first is that the prisoner is likely to be better behaved while in confinement. The second is that a prisoner who retains at least some degree of control over his future fortunes and who has a real incentive to reform is more likely to retain basic self-respect and to enjoy some real prospects of eventual rehabilitation. In the harsh context of a prison environment, the potential advantages - in terms of hope, self-esteem, incentive for reform and rehabilitation - which eligibility for release on parole offers a prisoner in an Australian gaol should not be underestimated.

5. The mitigation of sentence which the parole system allows is ordinarily directed towards rehabilitation. It is not, however, exclusively so. Circumstances can arise in which mitigation of sentence by release on parole is justified upon purely compassionate grounds. An obvious example is where a prisoner who has become eligible for release on parole is terminally ill. Another example is where the severe illness or other unusual needs of the spouse or infant children of a prisoner are strong grounds for release. It is true that it is only in exceptional circumstances that the mitigation of punishment for reasons of compassion, rather than rehabilitation, will justify release on parole. Where those reasons exist, however, they can be all-important. An inability on the part of the authorities to take them into account at all may devastate an individual and brutalize the prison system. It is a real benefit of the parole system that it enables some compassion to be exercised, if necessary, when a prisoner has reached the stage of eligibility for release on parole.

6. The Crown's submission appears to us to be based upon pragmatism rather than principle. In almost all cases, a foreign offender who has "no ties to this country, and whose sole purpose in entering Australia is to commit serious crimes" will, under current legislative provisions and executive policy, be immediately deported by the Commonwealth authorities if released on parole. It follows, so it is said, that it can never be appropriate that such a person should be eligible for release on parole. In essence, the argument advanced in support of that unqualified submission appears from the following extract from the Crown's written outline:

"Parole is a regime intended to assist in the rehabilitation within the community of persons released from a term of imprisonment. ... Manifestly, this community has no interest in providing any such regime for foreign offenders with no ties to this country. Rather a trial judge sentencing such offenders should have regard only to the need to punish them adequately for their crimes, having regard to all relevant aggravating and mitigating circumstances, and then to ensure that this community is freed from their presence."

There are two aspects of that submission. The first would seem to be that this country has no interest in, or responsibility for, the rehabilitation of an offender of the kind described, notwithstanding that he is or has been imprisoned in an Australian gaol. The other aspect is that, since deportation will almost certainly render inappropriate or futile the supervision and other safeguards which control and regulate release on parole, the system cannot, and should not be concerned to, cope with such offenders.

7. It can be said at once that we find both aspects of the submission unpersuasive. In so far as the submission involves an assertion that the community is not concerned with the rehabilitation of a prisoner who has no ties with this country and who will be deported when released from gaol, it takes a blinkered view of community concerns and interests and unjustifiably confines them within strict territorial limits. This country has a direct and significant interest in the well-being and rehabilitation of all who are detained within its gaols, whether or not their origins, ties or future prospects lie in this or in some other country. It also has a responsibility, both moral and under international treaty, to treat all who are subjected to criminal proceedings in its courts or imprisonment in its gaols humanely and without discrimination based on national or ethnic origins (see, e.g., International Convention on the Elimination of All Forms of Racial Discrimination, (1965), Art.5(a); Reg. v. Binder (1990) VR 563, at pp 569-570). To deny foreign offenders of the kind in question the opportunity for the amelioration of their situation and the incentive for reform and rehabilitation which the parole system offers is not to differentiate by reference to degrees of criminality or prospects of rehabilitation. It is to discriminate against prisoners of that class because of their origins, their place of residence and their family ties. There is, for example, no necessary difference in degrees of criminality between, on the one hand, a New South Wales resident, with no ties in Western Australia, who travels to that State solely for the purpose of committing a serious crime there and, on the other hand, a New Zealand resident, with no such ties, who travels to Western Australia solely for the purpose of participating in that crime. Indeed, the circumstances could well be such that the criminality of the New South Welshman was much greater, and the potential for rehabilitation much less, than that of the New Zealander. A Western Australian legal system which provided that, regardless of the degrees of criminality or prospects of rehabilitation, the advantages of eligibility for release from custody on parole should be available to the New South Wales resident but unavailable to the New Zealand resident would plainly discriminate between them by reference to the place whence they came, that is to say, on the grounds of residence or origin.

8. There is greater force in the second limb of the Crown's submission. There is obviously something to be said for the view that it is inappropriate that a person should be eligible to be released on parole in circumstances where his immediate deportation would, if he were released, remove him from the reach of the local authorities with the result that effective supervision would be impossible and a return to custody in the event of breach of the conditions of parole would be effectively unenforceable. There are, however, two related reasons why the likelihood of deportation if a convicted person is subsequently released on parole should not, of itself, compel a sentencing judge to conclude that it is inappropriate that that person should be eligible to be considered for release on parole at some future time.

9. The first reason is that the compulsory deportation of a prisoner released on parole is something which is beyond the control of the prisoner. It lies within the control of government. It is far from evident that the disadvantages to the community which would be involved in allowing a person released on parole to remain within Australia under the supervision of the relevant parole authority until the expiry of his parole would necessarily outweigh the disadvantages involved in keeping him in gaol throughout the whole of the period in which, if he were not a foreigner, he would be released on parole. Moreover, the inadequacy of the parole system to provide proper supervision and enforcement of parole conditions in the case of a prisoner who is released on parole and then deported is likewise something which is beyond the control of the prisoner. It is also arguably within the control of government, since it is not immediately apparent that it is beyond government initiative to negotiate arrangements with other countries pursuant to which persons released on parole could be supervised in those countries and, if necessary, returned to imprisonment in this or that other country in the case of breach of parole conditions. Even if a foreign prisoner will inevitably be deported upon being granted parole and be placed beyond supervision, that is no reason why he should be denied eligibility for parole. There could obviously be cases where compassionate considerations might justify release on parole notwithstanding that adequate supervision was impossible and that an involuntary return to custody would be impracticable. The case of the terminally-ill prisoner whose physical incapacity represents an effective confinement of his activities provides an obvious example. Other circumstances, such as reform while in prison and the likelihood of rehabilitation, could plainly arise in which, notwithstanding prospective deportation, the release on parole of a prisoner would be obviously more in the interests of both the prisoner and the community than would be his continued imprisonment at community expense. In that regard, the absence of arrangements with another country for supervision or enforcement of parole conditions does not mean that the fact that a person was on parole would be irrelevant in that country. One would, for example, expect that it would be a highly relevant consideration in the sentencing process in that other country if the person concerned was convicted of a crime in that country while on parole.

10. The other reason for rejecting the second aspect of the Crown's submission relates to the function of the sentencing judge. As has been said, a sentencing judge is not ordinarily required or empowered to determine whether a convicted person should in fact be released on parole at some future time. He or she is concerned to decide whether a prisoner should be eligible to be considered for release on parole at that future time. The likelihood of deportation, the lack of ties with this country and the difficulty or even impossibility of effective supervision and enforcement of parole conditions are all factors which will properly be taken into account by a parole authority when considering, at that time, whether the prisoner should be actually released on parole. Those factors may, however, conceivably vary, by reason of change of government policy or the intervention of special circumstances, between the time of sentencing and the time when the parole authority considers whether a prisoner should be released on parole. More important, once it is recognized that circumstances may well exist in which, notwithstanding those factors, a parole authority will be justified in releasing a foreign offender of the particular class on parole, those factors do not, of themselves, compel a sentencing judge to decide that it is inappropriate that such an offender should be eligible to be even considered for parole at that time.

11. It follows that the general unqualified submission advanced by the Crown must be rejected. As we follow the argument, it was not submitted that, if that unqualified submission was rejected, this Court should, nonetheless, interfere with the parole order made by the Court of Criminal Appeal in the present case. In that regard, it is well to remember that this Court will only entertain an appeal by the Crown in an exceptional case: see R. v. Lee (1950) 82 CLR 133, at p 138. We have, however, given consideration to the correctness of that order and are in agreement with it. We shall briefly explain the reasons which lead us to conclude that the Court of Criminal Appeal was correct in ordering that the respondent be eligible for parole.

12. Since 17 July 1990, the function of a sentencing judge as regards the possibility of future parole of an offender convicted of a crime against a law of the Commonwealth has been defined by the Crimes Act, ss.19AB-19AK. Section 19AK of that Act now expressly provides that where a person is convicted of a federal offence, "a court is not precluded from fixing a non-parole period in respect of the sentence imposed for that offence merely because the person is, or may be, likely to be deported from Australia". The appeal in the present case was, however, heard and determined by the Court of Criminal Appeal in June 1990 and it is common ground that the question whether an order should have been made by the Court of Criminal Appeal that the respondent be eligible for parole falls to be determined by reference to the statutory regime applicable at that time, that is to say, by reference to the Commonwealth Prisoners Act 1967 (Cth), ss.4 and 5, and s.37A of the Offenders Probation and Parole Act (W.A.) which s.4 of the Commonwealth Act made applicable to the case of a federal offender. It follows that the learned trial judge and the Court of Criminal Appeal were entitled to "have regard to all or any" of the matters set out in s.37A(3) of the Western Australian Act. Those matters are:

"(a) the nature of the offence; (b) the circumstances of the commission of the offence; (c) the antecedents of the convicted person; (d) circumstances which are relevant to the convicted person or which might, in the opinion of the court, be relevant to the convicted person at the time at which the convicted person would become eligible to be released from prison on parole if an order was made under subsection (1);

(e) any other matter that the court thinks relevant".

It also follows that, regardless of the effect of subsequent legislation (see Crimes Legislation Amendment Act (No.2) 1989 (Cth), ss.29 and 30), the correctness of the Court of Criminal Appeal's order falls to be determined on the basis that the parole authority had, at the end of a non-parole period, a discretion as to whether an offender serving a federal sentence of nine years imprisonment should in fact be released on parole (see Commonwealth Prisoners Act, s.5; but cf., as to the present position, Crimes Act (Cth), s.19AL).

13. The crimes of which the respondent was convicted - conspiracy to import a trafficable quantity of heroin (Customs Act 1901 (Cth), s.233B(1)(cb)); importation of a lesser trafficable quantity of heroin (s.233B(1)(b)); and possession of that lesser trafficable quantity of heroin (s.233B(1)(c)) - are all serious crimes. The head sentence imposed by the trial judge (ignoring concurrent sentences for the offences of importing and possession) was twelve years imprisonment. This was reduced by the Court of Criminal Appeal to a sentence of imprisonment for nine years. The learned trial judge declined to make an order that the respondent be eligible for parole. The Court of Criminal Appeal made such an order. The effect of the Court of Criminal Appeal's order was that the respondent would be eligible to be considered for release on parole after he has served four years of his sentence (see Offenders Probation and Parole Act, s.37A(2)(b)).

14. There were some mitigating circumstances which were plainly relevant to an assessment of the criminality of the respondent's conduct and his potential for reform and ultimate rehabilitation. He had no previous convictions but admitted that he had imported heroin, as a courier, into Australia on a previous occasion in 1987. He was, to quote the judgment of the Court of Criminal Appeal, "a pawn who was manipulated by others". He appeared to the officer preparing a pre-sentence report to be "an inept and inexperienced criminal who was both uneducated and unsophisticated". While his active involvement was as a courier, the conviction of conspiracy confirmed that he had played some part - the Court of Criminal Appeal considered it to be a minor part - in the organization of the offences in that he was the "co-ordinating courier". For his involvement he was to receive the equivalent of $3000. The respondent's explanation of his involvement was the need to provide for his dependants. His personal circumstances were described by Malcolm C.J., in the Court of Criminal Appeal, as follows:

"At the time of sentencing Ramesh (i.e. the respondent) was a 44 year old man. He was married with a family. His wife died in 1988 at the age of 27. After her death he established a de facto relationship with another woman who has given birth to a son by Ramesh and resides in Kathmandu. The child was born in 1989 after Ramesh left for Australia. Ramesh now has two sons and two daughters whose ages range from less than 1 year to 11 years. Between 1955 and 1962 he worked as a trekking guide and hotel waiter in Nepal. In 1962 he joined the Indian Army and served as an infantry soldier until the end of 1972. After he left the Indian Army he went back to Nepal and worked as a trekking guide again. It would appear that the story he told the police about having a travel agency and selling tickets for Royal Nepal Airlines was part of the false story told to the Australian Embassy. About 6 months before he came to Australia he obtained work as a waiter/cook in a restaurant in Kathmandu. His wages were $75 per month plus tips.

Ramesh is in poor health, having previously suffered from tuberculosis, which has left him with damaged lungs. He also suffers from angina. His family in Nepal are wholly dependent upon him. His motivation for the commission of the offence was to obtain money to support his family. He says he acted only with the view of giving his children 'a better and more stable future'. He says that when the opportunity came to make money by participating in these offences he felt it was too good a chance to let pass. He also says that since his arrest he has heard nothing of the whereabouts of his children and that his wife (i.e. de facto) is now suffering from asthma."

The Crown Prosecutor informed the trial judge that the respondent had co-operated with the authorities after his detention. This co-operation was described by Malcolm C.J.:

"As to the matter of co-operation, it can be seen that Ramesh made three confessions in the course of which he named the person to whom the heroin was to be delivered. He co-operated with the police by telephoning that person and arranging a meeting. He travelled with the police to Sydney, set up the meeting and attended it ostensibly for the purpose of delivering the heroin. The fact that the operation did not have the outcome hoped for by the police was not due to any lack of co-operation on the part of Ramesh."

15. In these circumstances, particularly the respondent's co-operation with the authorities and the fact that the respondent's part in the offences was that of "an inept and inexperienced criminal" who had no previous convictions and who had been "manipulated by others", it seems obvious that an order that he be eligible for parole would have been made under s.37A if he had been an Australian citizen. The learned trial judge refused to make an order that the respondent be eligible for parole on the ground that he was prevented from so doing by "the facts of the case, your personal circumstances and the fact of your immigration status". A unanimous Court of Criminal Appeal disagreed with the trial judge's conclusion in that regard. The Court of Criminal Appeal considered that the fact that the respondent was a foreigner, with no ties to this country, who had come to this country solely for the purpose of his criminal activities, did not make it inappropriate, in all the circumstances, that such an order be made. In our view, the Court of Criminal Appeal was correct in that conclusion. The respondent's status as a foreigner with no ties to this country was, as the Court of Criminal Appeal clearly recognized, a relevant consideration in deciding whether an order should be made, under s.37A, that he be eligible for parole. It would, as their Honours doubtless appreciated, be a factor to be taken into account by the parole authority when the time came to consider whether the respondent should actually be released on parole or on licence. The fact, if it were then the fact, that, if released, the respondent would almost certainly be deported would also be a relevant factor (but cf., as to New South Wales, Sentencing Act, s.17(2)). There would, however, also be other factors which would be relevant at that future time. The likelihood of rehabilitation would be one such factor. Any mitigating circumstance, including the then plight of the respondent's children, could be another. At the time when the Court of Criminal Appeal dealt with the matter, however, it was simply impossible to say that the circumstances in the future would not be such as would, on balance, justify the respondent's release on parole. Nor was it a case in which it could be said that the requirements of justice - including punishment and deterrence - dictated that the respondent serve in custody the whole of the sentence imposed. That being so, it was appropriate that an order that the respondent be eligible for parole be made.

16. We would refuse special leave to appeal.

Orders

Application for special leave to appeal refused with costs.