Reg v Shrestha

[1990] HCATrans 254

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No Pl8 of 1990

B e t w e e n -

THE QUEEN

Applicant

and

RAMESH SHRESTHA

Respondent

Application for special

leave to appeal

BRENNAN J

DEANE J

DAWSON J
TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 24 OCTOBER 1990, AT 2.17 PM

Copyright in the High Court of Australia

Shrestha 1 24/10/90

MR M.S. WEINBERG, QC:  May it please the Court, in this

matter I appear together with my learned friend,

MR s.w. O'SULLIVAN, on behalf of the applicant.

(instructed by the Director of Public Prosecutions

for the Commonwealth)

MR L.W. ROBERTS-SMITH, QC:  May it please the Court, I

appear with my learned friend, MS K.J. FARLEY, for

the respondent. (instructed by Legal

Aid Commission)

BRENNAN J:  Yes, Mr Weinberg.

MR WEINBERG:  If the Court pleases. May we hand to the

Court copies of our outline of submissions.

BRENNAN J: Yes, Mr Weinberg.

MR WEINBERG:  If the Court pleases, the point which we

submit warrants the grant of special leave is

identified in paragraph 1 of our outline of

submissions and in substance it is this, whether a

foreign national with no links to this country who

enters Australia solely in order to commit serious

crime or crimes here and intending to depart

forthwith is a person in respect of whom it can be

appropriate to order eligibility for parole. Our

submission is that, on any view, plainly it is not

and that person is not such a person.

We submit that a court should not impose a

minimum term or order eligibility for parole where

an offender is not a suitable candidate for parole,

and that is the short point which we submit

warrants the grant of special leave. The courts

are required to play a role in determining whether

an offender should be eligible for parole.

Legislation in almost every State imposes that obligation upon a sentencing judge.

If we may point to the legislation in each

State and in the Commonwealth which we say makes

good that point: section 37A of the Western

Australian Offenders, Probation and Parole Act

1963; in addition the Victorian Penalties and
Sentences Act 1985, section 17; in New South Wales

the Sentencing Act 1989, section 6; and for the purposes of the Commonwealth after 17 July 1990, the Crimes Act 1914, section 19AE. In addition, in

South Australia, the Criminal Law Sentencing Act of

1988, section 32(5) achieves exactly the same
result in substance as do the provisions in other

States. It is only in Queensland that the parole

regime differs and a judge in Queensland is not

given the power to judicially determine parole

eligibility as such. The legislation provides that

there shall be parole eligibility after half of a

Shrestha 2 24/10/90

sentence is served in Queensland, although a judge

is also permitted to stipulate a period of parole

eligibility which may be shorter than that

particular period as we understand the Queensland

legislation.

TOOHEY J:  Mr Weinberg, do you mean by that that in the

other statutes the Court has a discretion as to

whether or not to grant parole?

MR WEINBERG:	The Court has the discretion as to whether or not a person will be eligible to receive parole.
If a court in Victoria, New South Wales, or under
the Commonwealth regime declines to fix a minimum non-parole period, then the offender is not
eligible for parole at all. It is a pre-condition
for the parole board having any jurisdiction over
the matter that a minimum non-parole period be fixed in those States.

In West Australia the result is achieved

slightly differently because in West Australia the

judge does not, pursuant to section 37A, declare a

minimum non-parole period. He merely declares

eligibility for parole. If the judge does not
declare the offender to be eligible for parole then

the offender cannot be paroled in Western Australia

under section 37A. But the actual calculation of

how much time the offender must spend in custody

before becoming eligible for parole in Western

Australia is fixed by statute, unlike the position

in Victoria, New South Wales, the Commonwealth and

South Australia.

So there is a commonality about the

legislation in all those States. In addition to

that commonality, that these are all States which

permit judges to determine parole eligibility, the

criteria for judges to operate upon are very

similar in all of those jurisdictions. The judge

must be satisfied that it would be appropriate to

fix a minimum non-parole period or, alternatively,

not appropriate to do so. The word is

"appropriate" in every case that I have outlined.

And among the matters that can be taken into

account in determining whether it is appropriate or

not appropriate to have a prisoner eligible for
parole are the antecedents or antecedent character

of the prisoner. That word or those words appear

in every such State with the exception of South

Australia.

So our point is simply this, that although

construction confined to the provisions of that

this matter arises under section 37A of the West

Act. It is a matter of general principle

Shrestha 3 24/10/90

applicable to all States other than Queensland, as

we understand it. We have not been able to find

the Tasmanian position.

BRENNAN J:	Where do we find section 37A?
MR WEINBERG:	Your Honours will find it in the materials

that were handed to the Court. The materials are in

order. They contain firstly a collection of

authorities, cases going all the way through to

three case notes, Bensegger, Riche and Mesdaghi and

the first piece of legislation in the materials

that were supplied contains the Offenders,

Probation and Parole Act 1963.

BRENNAN J:	Yes.
MR WEINBERG:	Your Honours will see that section 37A(l)

provides that:

(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.

Subsection (3) sets out the conditions under which

a court may make an order of eligibility for parole

and that says that:

under subsection (1) is appropriate the court	In determining whether the making of an order
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

Shrestha 4 24/10/90

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 (l);

(e) any other matter that the court thinks

relevant.

Now, the effect of that is simply this, that so far

as this respondent is concerned, because the Court

of Criminal Appeal overturned the decision of the

trial judge, the trial judge having found that he

was not eligible for parole, the amount of time

that this prisoner would have to serve before, in

effect, being deported, is reduced by a

considerable period.

It would have been 6 years because West

Australian legislation provides that you get

one-third off any sentence which is actually

imposed. That is section 29 of the West Australian

Prisons Act, so 9 years having been imposed he

would normally have had to serve 6 years; because

he was declared eligible for parole and because his

sentence exceeds 6 years he falls within

section 37A(2)(b) and therefore he becomes eligible

for parole once he has served 2 years less than

two-thirds of the term, and two-thirds of the term

being 6 years, he will now become eligible for

release on parole after 4 years, rather than the 6

years.

DEANE J:  What does that mean, "eligible to be released on

parole"?.

MR WEINBERG:  It means that because he is a Commonwealth

offender the Attorney-General's Department will

make a recommendation to the Governor-General

because there is no parole board in existence at

Commonwealth level and in accordance with the practice of the Commonwealth he will be deported

after serving a period of 4 years, instead of after

serving a period of 6 years which would have been

the case previously.

DEANE J:	What about in Western Australia?
MR WEINBERG:	Under West Australian provisions, as distinct

from under this particular case?

DEANE J:	Yes.
MR WEINBERG:	There is a parole board in Western Australia

and what would happen would be that he would be

eligible to be released on parole for a period of 2 years. That period would be the period between

Shrestha 24/10/90

4 years and 6 years which would be the head

sentence less remissions.

DEANE J:	If they decided that he should be -
MR WEINBERG:	If they decided to release him, yes.
DEANE J:	And if they do not decide?
MR WEINBERG:	Then he would serve 6 years.
BRENNAN J:	Mr Weinberg, before you go on, does this raise

this interesting problem of Commonwealth prisoners

being dealt with by executive action, not by parole

boards?

MR WEINBERG:  I do not know that - it is an interesting

problem, Your Honour. It certainly involves

Commonwealth prisoners. They are dealt with by

executive action and not by parole boards. They

were, prior to July 17, and they still are under

the new sentencing regime.

BRENNAN J:  Well, what is the effect of a judge making an

order under section 37A in relation to a

Commonwealth prisoner?

MR WEINBERG:  A judge now will not make an order under

section 37A post July 17. There is now a

Commonwealth code governing the imposition of minimum non-parole periods for Commonwealth

offenders.

BRENNAN J:	In this case what is the situation?
MR WEINBERG:	This prisoner is still under the old regime,

as it were. The effect of the decision of the Court of Criminal Appeal is to reduce the man's

sentence by 2 years lower than the 9 years without

eligibility for parole.

BRENNAN J:  But what happens to this man when the parole period arrives?

MR WEINBERG:	At the end of 4 years he will be deported.
BRENNAN J:	How does he get out of gaol?
MR WEINBERG:	He is released on licence by an order of the

Governor-General. He will not be given parole

because parole under the Commonwealth requires a

specific order that he serve that period of parole

under supervision. Because he will be deported he

will simply be released on licence and a condition

made that he be deported forthwith.

Shrestha 24/10/90

BRENNAN J: But you are seeking the intervention of this

Court in order to govern the exercise of an

executive discretionary power?

MR WEINBERG:  No, Your Honour. We are seeking the

intervention of this Court because an obligation

which rested upon a sentencing judge was not

carried out by the sentencing judge and had it been
carried out there would have been no occasion for

the executive to act to deport him at any point

prior to 6 years.

BRENNAN J:  I am still at a loss. I do not understand how,

in the case of this prisoner, the exercise of a

power under the Western Australian Offenders,

Probation and Parole Act effects his entitlement to

release when the parole period comes.

MR WEINBERG:  He cannot be released and will not be

released until either of two things happens. If he is declared eligible for parole under the West Australian legislation he must serve 4 years in

accordance with the statutory formula. At that

point he would be released on licence by the

Governor-General.	In the event that they are not
declared -

BRENNAN J:  Let me interrupt you for a moment. If your

appeal succeeds he will not be released on licence

at that time.

MR WEINBERG:	That is correct, Your Honour.
BRENNAN J:	He will be released on licence at some later

time.

MR WEINBERG:  He will not be released on licence,

Your Honour, because the legislation dictates that

he serve only 6 years because of section 29 of the

West Australian Prisons Act. He will simply have

served his sentence. He will be forgiven the

one-third of the sentence by way of statutory

remission and he will be deported forthwith at that

point.

BRENNAN J:  If after 4 years in this man's case no

executive action is taken he will serve how long?

MR WEINBERG:	Six years, Your Honour.
BRENNAN J:	So you are asking this Court to make an order

which will set aside the judge's order, or the

order of the court below, in order to give some

judicial foundation for the non-exercise of the

executive licencing power?

Shrestha 7 24/10/90

MR WEINBERG:  No, Your Honour, with respect, that is not it

at all. Parliament itself has enacted legislation

in all of the States that I have outline and at

the Commonwealth level to prevent parole boards

from simply releasing people as and when they wish

to do so. There is no general power on the part of

the executive to release as and when it wishes to

do so. Parliament has entrusted the courts and

the sentencing judges with the obligation to prevent parole boards and the executive from releasing upon parole at a time earlier than a

judge fixes as being the minimum time for release

upon parole and if the judge determines that the
prisoner is not suitable for parole, then

Parliament has dictated that parole boards cannot

release that person at all.

So far as Commonwealth offenders who fit the

description of this particular person with no ties

in this country, the reason that he would not be

released upon Commonwealth parole is because he

cannot be supervised and because he will be

deported. So the practice of the Commonwealth is

to have him released on licence at the same time as

he would have been released on parole had parole

been available and immediately deported. The point

about the declaration of eligibility for parole in

this case as regards this prisoner is that it

reduces his sentence, the time that he will spend

in custody from what would be ordinarily 6 years,

the sentence of 9 years having been fixed by the

Court of Criminal Appeal as being the appropriate

sentence, to a time of 4 years.

TOOHEY J:  I have lost a step somewhere in that,

Mr Weinberg. Once the judge has made an order

that the convicted person is eligible for parole in

the case of a Commonwealth offender, has

section 37A and indeed the West Australian

legislation generally exhausted itself?

MR WEINBERG:  Your Honour, under the position prior to

17 July it had not exhausted itself. It was picked

up and applied to Commonwealth offenders by virtue

of the provisions of section 5 of the Commonwealth

Prisoners Act. Now, since 17 July there is a

code, a Commonwealth code, in existence for

sentencing Commonwealth offenders. Section 37A no
longer has any application to Commonwealth

offenders.

TOOHEY J:  No, I am asking you in relation to this

particular situation.

MR WEINBERG:  This particular respondent. So far as this

particular respondent is concerned, the effect of

the Court of Criminal Appeal's decision that the

Shrestha 24/10/90

trial judge had erred in declaring him eligible for

parole is that he serves 2 years less in custody

and will be deported, in effect, 2 years from - - -

TOOHEY J:	I understand the practical implications, at least I think I do, but I am trying to understand
the mesh of Commonwealth and State statutes. The
declaration of eligibility for parole is made under
section 37A.
MR WEINBERG:	That is correct, Your Honour.
TOOHEY J:	Now presumably there are other statutory

provisions in Western Australia which deal with the

function of the parole board and its powers, and so

on, but you say those do not apply.

MR WEINBERG:  No, Your Honour. What I say is that those

were picked up and applied to this offender, or

some of them were picked up and applied to this

offender by virtue of the provisions of the

Commonwealth Prisoners Act. The mechanism for

release on parole prior to 17 July did not apply

because the Commonwealth does not have a parole

board.

What the Commonwealth used to do prior to

17 July was to consult with State parole boards,

find out, in effect, whether the prisoner had

behaved himself well and properly and would be

considered by the parole board as being a person

who would be otherwise liable to be granted parole,

entitled to be granted parole, and if the

Commonwealth were so satisfied, the

Attorney-General's Department would advise the

Governor-General of that fact. If the person were

not an Australian resident, he would be

an Australian resident he would be released on were

released on licence and deported forthwith.

The matters are set out and discussed in

detail in the cases outlining the precise

procedures that differentiate Commonwealth

offenders from State offenders, but basically the

position was that there was no sentencing regime as

such which governed Commonwealth offenders prior to

17 July of this year. The Commonwealth offender

was, in the case of minimum non-parole periods or

eligibility for parole, those matters were picked

up and applied to Commonwealth offenders by the

Commonwealth Prisoners Act, but there was a

difference in mechanism at the end of the day as to

how that parole was actually invoked.

It was the Governor-General who determined whether parole would be granted or whether there

Shrestha 9 24/10/90

would be release on licence rather than a State

parole board.

DAWSON J:  Why was he released on licence if it was thought

inappropriate?

MR WEINBERG:  Because the Commonwealth Prisoners Act

required, as a condition of release on parole,

supervision in the community.

DAWSON J:  Why was he release at all, if it was thought

inappropriate, thought inappropriate because he

would be deported?

MR WEINBERG:  Your Honour, that is a question of whether

the Governor-General should or should not release a

particular person at the end of that particular

period, but there is an anterior question, and that
is the obligation of a trial judge to make a

finding as to whether the person is an appropriate

person to be released on parole and the legislation

in every State requires that sentencing judge to

make that finding and if the finding is made that

he is not an appropriate person to be eligible for

parole, to be considered for release on parole,

that stops the Governor-General, that stops every

parole board from, in effect, releasing him on

parole or on licence.

BRENNAN J:  I think we understand that there is this

difference in practice in the Commonwealth -

MR WEINBERG:	Yes.
BRENNAN J:	- - - but I think you might derive from the

questions asked of you that we would be advantaged

if you could show us what the statutory basis is

for the exercise of these Commonwealth powers and
for the picking up of State legislation by

Commonwealth law.

MR WEINBERG: Prior to 17 July, Your Honour?

BRENNAN J: In this case.

MR WEINBERG: In this case it is prior to 17 July. It is

the Commonwealth Prisoners Act sections 4 ands.

BRENNAN J:  Do you have it?

MR WEINBERG:  No, Your Honour, I do not have it with me. It

is discussed in a number of the cases and I can
take the Court to a number of the cases where the
relevant provisions are simply discussed, but it
has been understood for a very long time that those

two sections of the Commonwealth Prisoners Act

(1967), prior to 17 July picked up and applied

Shrestha 10 24/10/90

State provisions dealing with eligibility for parole.

BRENNAN J:  And are those the sections which also empower

the Governor-General to release on licence?

MR WEINBERG:	Yes, Your Honour.
BRENNAN J:	And are they the sections which also deal with

cases which will be released on parole?

MR WEINBERG:  Your Honour, I said "yes". I may have said

"yes" too quickly. It was either those, sections 4

and 5, or section 19 of the Crimes Act which

empower the Governor-General to release on licence.

I think it was section 19 which was used to enable

release on licence. Section 5 was the section that

enabled the Governor-General to release on parole.

BRENNAN J:	Now in this case, assuming that eligibility for parole and this prisoner remains, when the time
comes will he be then released on licence?
MR WEINBERG:	Yes.

BRENNAN J: Pursuant to what provision?

MR WEINBERG: Section 19 of the Crimes Act.

BRENNAN J:	So the new Act does not apply at that stage?
MR WEINBERG:	Our understanding is that the new provisions

would not apply to this prisoner, because his

sentence and the consequences which flow from it

would be dictated by the legislation operative at

the time that he was sentenced by the learned trial

judge and by the Court of Criminal Appeal.

BRENNAN J:  And under the new Commonwealth law, would the

same question arise?

MR WEINBERG:  Exactly the same question, Your Honour. Under

the new Commonwealth law the Commonwealth has
picked up the same formulation as Victoria.	It has

said, in effect, in section 19AE of the Crimes Act

(1914), which came into operation on 17 July and which is in the materials - it was introduced by

the Crimes Legislation Amendment (No2) Act 1990.

It simply says that:

Where:

(a) at a particular time, a court would be

required by section 19AB, 19AC or 19AD to

fix a non-parole period, or make a
recognizance release order, in relation
to a person; and

Shrestha 11 24/10/90

(b) at that time, the person is not already

subject to a federal non-parole period;

the court is not required to fix a non-parole period, or make a recognizance release order, if, having regard to the nature and

circumstances of the offence or offences

concerned and to the antecedents of the

person, the court is satisfied that it is not

appropriate to do so.

And then the court is required to state its reasons

if it is satisfied that it is not appropriate,

having regard to those matters, to fix a non-parole
period.

Section 19AL is the section which deals with actual release on licence. Under the new

Commonwealth legislation the position is that:

where the has been imposed on a person a

federal sentence of, or federal sentences

aggregating, more than 3 years but less than

10 years and a non-parole period has been

fixed in relation to the sentence or

sentences, the Attorney-General must, by order

in writing, direct that the person be released

from prison on parole:

(a) at the end of the non-parole period;

in effect.

TOOHEY J: But Mr Weinberg, you have used the expression in

relation to this applicant ttif he will be

released". Now under the regime that applied to

him, which you have explained in terms of a licence

under the hand of the Governor-General and you have

spoken of liaison with the parole board, does it

follow that at the commencement of the parole
period that this applicant will be released or will

he be released in the same sort of circumstances

that a parole board might consider the release of a

prisoner on parole?

MR WEINBERG:  No, Your Honour. The inevitable practice is

simply to deport persons. This person is an

illegal entrant. The inevitable practice is that

such persons are deported as soon as the non-parole

period expires and that means, in effect, that this
person will never, in fact, undergo supervised
parole of a kind that is contemplated by the very

notion of parole; the nature and essence of parole

itself. That is what gives rise to this problem

and the special leave point, we submit. These are

by their very nature, people who are simply not

suitable candidates for parole. If one understands

Shrestha 12 24/10/90

what parole is and what it is intended to achieve,

this particular class of offender who constitutes

an illegal entrant, who has come here solely for

the purpose of committing a serious crime and then departing forthwith, is not a person in respect of

whom it can ever be said, in our submission, that

it is appropriate that that person be eligible for

parole - - -

TOOHEY J: And the proposition, I take it, is that the judge

should fix, as it were, a head sentence and that

the remissions board will take care of the period

of time that the prisoner actually serves.

MR WEINBERG:  Yes, that is so, Your Honour.

DAWSON J: There is still a problem, because a person is not

non-parole period, as it is in an ordinary case. automatically eligible for parole at the end of the think it is appropriate he is released on parole.

MR WEINBERG:  Yes.

DAWSON J: But apparently the Commonwealth does not consider

the case and automatically grants a licence and

reports.

MR WEINBERG: That is so, Your Honour.

DAWSON J: Why it does that, we do not know; you may not

know. We do not enter into that but, of course, a

person is suitable for parole if the parole period

is likely to aid his rehabilitation. It may be

that you would get a case where a person is so

clearly rehabilitated that there is no longer any

purpose in keeping him in prison, whether or not he

is a non-resident. In that case, why should he not

be entitled to the mitigation of his punishment

by - - -

MR WEINBERG:  It is not just a matter of mitigation of

punishment, Your Honour. Parole is not simply a

matter of mitigating punishment for people who have
demonstrated rehabilitation. It provides a

mechanism whereby a person serves part of his sentence of imprisonment in the community, on

release from prison, under supervision and under

the threat that if he reoffends or breaches the

conditions of his parole, he will be called back to

serve the balance of his sentence.

DAWSON J: It is a mitigation of the punishment in favour of

rehabilitation, is it not?

MR WEINBERG:  Yes, it is.

Shrestha 13 24/10/90

DAWSON J: But through conditional freedom?

MR WEINBERG:  Yes, that is what Power's case said parole

was.

DAWSON J:	I am reading from it, yes, but what you really say is that if it is through conditional freedom,
that cannot apply in this situation, that is the point.

MR WEINBERG:  No, there is no conditional freedom here. The

people are simply deported. They are not amenable

to Australian jurisdiction; they are not at risk

of being brought back for breach of parole; they
are not serving any part of their sentence under
conditional freedom in the community and they are

not being rehabilitated in the community for the

community. This community - - -

DAWSON J:  I can understand that. I still do not understand

why the Commonwealth, in that situation, then

releases them on licence, but you say that is the

case.

MR WEINBERG:  I wonder why State parole boards would ever

release them on licence and one would say - - -

DAWSON J:  Release them on parole. They would release them

on parole because they think that the person is

going to benefit by it.

MR WEINBERG:  But they are immediately deported,

Your Honour. The same thing happens in respect of

this category of offender, who has committed

offences against State law.

DAWSON J:  I see, yes.

MR WEINBERG:  They are immediately deported; they do not

serve any portion of their sentence under

conditional freedom and our point is that the

legislation imposes an obligation upon a trial

something is to determine whether it is appropriate	judge to do something about that situation and that
to make these people eligible for parole. One
cannot avoid that responsibility by saying, well
ultimately the parole board - - -

DAWSON J:  Why are they deported? I just want to understand

this.

MR WEINBERG:  Because they come here as illegal

entrants - - -

DAWSON J: True.

Shrestha 14 24/10/90

MR WEINBERG:  But you can be deported in the middle of a

prison sentence, can you not?

MR WEINBERG:  You can be deported, theoretically, at any

time, but the practice of the department is not to
deport people until they have served that part of
their sentence which is the minimum required under
the terms of the sentence. They are not deported
before they have done their minimum non-parole

period or before they become eligible for parole.

As soon as they - - -

TOOHEY J:  You are not suggesting that the Migration Act

itself requires deportation, but rather though,

within that category of person can be deported?

MR WEINBERG:  No, Your Honour, on one view it actually

requires deportation. Section 59 of the

Migration Act, if that is the section that is

invoked, actually requires deportation. Section 60

requires -

DAWSON J: Requires deportation at what point?

MR WEINBERG:  I will have to take Your Honours to section 59

precisely, but the Migration Act is - section 59

provides as follows:

(1)	An illegal entrant is liable to
deportation if the period of grace for the illegal entrant has ended.
(2)	Where the Minister, after following the prescribed procedures, is satisfied that
a person is, under subsection (1), liable
to deportation, the Minister shall, in
writing, order the deportation of the
person.

There is actually mandatory obligation upon the

Minister in these cases to deport. In practice he

tends to use section 60 rather than section 59, the

discretionary power. Why he does that, I do not

know, because the section is clear and unambiguous,

but they should be, at the earliest opportunity, as

soon as they have served whatever sentence they are

required to serve in custody, in order to effect

general deterrents; in order to indicate that

there is punishment for people who come into this

country.

DEANE J: But that would be a very good argument for saying,

if that Act operates in that State, at the time

when somebody becomes eligible for parole, he

should not be released. Why should a State court,

dealing with somebody accused of an offence against

State law, under its legislation, say, we will not

Shrestha 15 24/10/90

make anybody eligible for parole simply because

now, as distinct from in 4 years time, it is the

Commonwealth practice to deport them all.

MR WEINBERG:  It is not a matter of being the Commonwealth

practice to deport, Your Honour. It is because the

legislation in every one of these States says that

a judge should not make a person eligible for

parole or fix a non-parole period where it is not

appropriate that that be done and Parliament has

chosen that that - - -

DEANE J: But all he is doing is saying, somebody will be

eligible for parole under the criminal law

controlling his sentence.

MR WEINBERG: 

Your Honour, it would be very easy then for Parliament not to have intruded in this area at all

and to have simply allowed the parole board to

release people on parole when it determined that it

was appropriate that they should be released.

In this country, as distinct from other

countries, legislatures have not trusted parole
boards or the executive to act in that way and they

have place severe limitations upon the parole

board.  They have said that judges have the power

to prevent a person from being paroled where it is
not appropriate by reason of the antecedence of the
offender or by reason of the nature of the offence

for that person to be considered for parole. A

judge is required, in our submission, to make such

an order where it is not appropriate for the person

to be considered - - -

DEANE J: 

What if the law changes and provisions come in

which allow for parole of some of these people to
be effective? Is there a power in the judge to

call the person up and say, "I'll now say you are

eligible for parole."?

MR WEINBERG:  No, Your Honour. The person is dealt with at

the time and sentenced on the basis of the law as
it stands.	What if the law changes and all

sentences are reduced by half for an offence after

the offender is sentenced?	He does not get another
sentence.

DEANE J: But you are not facing the point of my question

and that is the judge is concerned whether the

person should be eligible for parole.

MR WEINBERG: Whether it is appropriate that he should be

declared eligible for parole, yes, Your Honour.

DEANE J: And whether he is, in fact, admitted to parole is

something to be decided when the time comes.

Shrestha	16	24/10/90
MR WEINBERG:	Of course that is so, Your Honour.	Of course

it is a matter for other authorities and the

executive to determine whether the person

ultimately, at the time, is eligible for parole but

- and I do not know that repeating the point

improves it - the fact is that the parliaments have

said there are limitations upon that. Judges are

required to stop parole boards from ever

considering certain sorts of cases.

DEANE J:  What if the Commonwealth decides to keep him in

the country so that he can give evidence as King's

evidence in a case?

MR WEINBERG:  There are ways that can be done. We simply

issue a subpoena and have a warrant issued if he

seeks to leave the jurisdiction. That is no

problem.

DEANE J:	So you just keep him in gaol for a longer period?
MR WEINBERG:	No, we would keep him in the country.
DEANE J:	Do you allow him out on parole then?
MR WEINBERG:	Your Honour, once he has served his sentence -

the actual decision as to whether he is released on
parole is not for the authorities. It is not for

the police. It is not for the courts. It is for

the parole board, ultimately. So he might very

well be released on parole but he would be stopped

from leaving the country if he were to be a

material witness in a prosecution. That is not a

problem. And he would be so stopped because of a

subpoena having been issued to him and a warrant

issuing upon the basis that there is evidence that

he proposes to leave, but he would not be kept in

custody unless he attempted to leave the

jurisdiction. That has got very little to do with

the question of parole or eligibility.

DEANE J:  No it has not. What if that happens after the

4 years and before the 6 years? You are saying

that he should be kept in gaol for the 6 years even

though he would have been in the country and could

well be -

MR WEINBERG:  Your Honour, one starts with the proposition

that the appropriate sentence for this offence was

9 years gaol. One then moves to the fact that the

legislature says he is entitled to a third off that

automatic remission and that gives him 6 years

gaol. A judge then has to make a decision as to

whether, in accordance with the statutory formula,

this person is an appropriate person to be declared

eligible for parole. He must be, in Western

Australia, affirmatively satisfied that he is an

Shrestha 17 24/10/90

appropriate person and one cannot, with respect,
make a decision about whether it is appropriate to
declare him eligible for parole unless one has
regard to what parole is and what its purposes are.

If one then goes to parole itself, every

formulation one finds of parole talks about
conditional freedom, rehabilitation, mitigation
through conditional freedom in the community. One

then asks what that has to do with a person who is

not in the community, of the community and who is

going to be deported from this community at the

earliest practicable moment; is not going to

undergo supervised parole, not for one moment, It

is a fantasy and it is a charade and the courts are

required, if they follow the decisions which
suggest that they are so required, to declare him
eligible for parole and to declare him a person for
whom it is appropriate to be declared eligible for

parole.

BRENNAN J:	Mr Weinberg, I have looked very briefly at the sections to which you have referred and I can see
no power vested in the Governor-General to release
anybody on licence.
MR WEINBERG:	Under section 19 of the Crimes Act,

Your Honour.

BRENNAN J: Well, perhaps I have not read - - -

MR ROBERTS-SMITH: Section 19A, if Your Honours please.

BRENNAN J: Section 19A?

MR WEINBERG:  I am sorry, Your Honour, I am just going by

memory.

BRENNAN J:  I do not see it in 19A, perhaps I am not reading the right one.

TOOHEY J: Well, if that is the section, Mr Weinberg, it

seems to impose a power on the Governor-General but

if he thinks it is proper to do so.

MR WEINBERG:  Yes, Your Honour. I am sorry, I would have to

go to the old legislation of the Crimes Act and

locate the relevant provisions but there is a

provision in the Crimes Act which permits the

Governor-General to release federal prisoners on

licence.

TOOHEY J: Section 19A(2) does that but my point is that it

appears to do it in discretionary terms.

MR WEINBERG:  The difficulty, Your Honour, is that these sections have just been renumbered and -

Shrestha	18	24/10/90
BRENNAN J: Yes, so it seems.

MR WEINBERG: - - - there is a pre-July 17 section 19 and a

post-July 17 section 19.

TOOHEY J: Well, I am looking at the pre-July one as I

understand it.

BRENNAN J:  Does the pre-July one have a subsection (1) and

(2) to 19A?

MR WEINBERG:	I would have to see it, Your Honour.
BRENNAN J:	Do you say so, Mr Roberts-Smith?

MR ROBERTS-SMITH: Yes, that is our understanding of it, if

Your Honours please, and I mention that because

that is the one which on my learned friend's

argument applies in this case.

MR WEINBERG:  Yes, Your Honour has the old section 19A which

deals with licences for offenders to be at large.

The new section 19A deals with something entirely

different: Detention of persons in State or

Territory prisons.

TOOHEY J:  But it is what you call the old 19A with which we

are concerned.

MR WEINBERG:  It is in relation to this respondent.

TOOHEY J: That is what I mean by "with which we are

concerned" .

MR WEINBERG: Well, we are, with respect, arguing a more

general point, Your Honour. We are saying that the

question of general principle applies across the board in relation to State offenders and federal

offenders. Of course, in relation to this specific

case, it would be the old section 19A.

TOOHEY J: Yes, but it is difficult to answer that, I think,

even as a matter of general principle, Mr Weinberg,

without understanding how the Commonwealth and

State legislation interacts. For instance, you put

to us a while ago that the consequence of the

Commonwealth legislation would be that at the end

of a period fixed by the judge as the period after

which the prisoner was eligible for parole he would

automatically be released. Perhaps "automatically"

was not your word.

MR WEINBERG:  Yes, pursuant to a licence, Your Honour.

TOOHEY J: Yes, it is the word "automatically" that I am

passing on to.

Shrestha 19 24/10/90

MR WEINBERG:  I am sorry, Your Honour.

TOOHEY J: This section 19A(2) seems to impose a discretion

on the Governor-General.

MR WEINBERG:  Yes, the practice is for the Governor-General

to be advised at the time that this person, were he
to be a person that would be suitable for parole

would have been considered for parole. He is not

because he is a foreign national and resident and

liable to be deported. He is released at that

point and at that time using that licence mechanism

and then deported.

TOOHEY J: Say the parole authorities told the relevant

Commonwealth authority that the behaviour of this prisoner was such that had he been a State prisoner he would not be considered eligible for parole or,
perhaps more accurately, he would not be released

on parole; his eligibility has already been

determined. Would the Commonwealth,

notwithstanding, then grant a licence?

MR WEINBERG:	No, Your Honour.
TOOHEY J:	So there are no automatic consequences?

MR WEINBERG:  No, Your Honour. I should not have said

"automatically". One postulates that the prisoner

has otherwise conducted himself in a manner which

would not debar him from consideration for parole

or from getting parole. All that I was

endeavouring to do was to demonstrate the mechanism

by which the Commonwealth releases these prisoners

from their term of imprisonment and then moves to

deport them.

The reason the Commonwealth used to use

section 19A(2) rather than Commonwealth parole
which also existed was because section 5 of the

Commonwealth Prisoners Act required that any person released on Commonwealth parole be released under

supervision with certain conditions and those

conditions plainly could not be applied to somebody

who was about to be deported.

TOOHEY J: Nevertheless, as you put the proposition, it is the existence of Commonwealth legislation, and in particular the provisions of the Migration Act

which, as I understand the argument, render parole

inappropriate.

MR WEINBERG:  It is the existence of Commonwealth

legislation which makes it clear that the

antecedence of the offender are such that he is an

illegal entrant into this country, gives the

offender that status and makes it clear that the

Shrestha 20 24/10/90

offender is not an appropriate person to be granted
parole because that offender will, in effect, be

deported from this country.

But, it does not matter, with respect, what

the source of the inappropriateness is. The

question is, is it inappropriate to declare this

offender eligible for parole and if, as a

consequence of the provisions of the Migration Act,

it is inappropriate then it is inappropriate.

BRENNAN J:  The consequence in the case of this offender or

any intervention on the part of this Court is

simply to effect the exercise of the executive

power of the Commonwealth under section 19A of the

Crimes Act.

MR WEINBERG:  To correct, with respect, an error made by the

Court of Criminal Appeal to restore a perfectly

proper order, indeed the only order that could have

been passed in accordance with law, by this learned

sentencing judge that this person was not an

appropriate person to be considered eligible for

parole. Now, what happens to him thereafter, so

far as the executive is concerned, is of no concern

to this Court, in our respectful submission. That

is a matter for the executive. That is a matter

for the Minister; and it is a matter for the

Governor-General, but the question is: has the

sentencing judge acted properly in declaring him

ineligible for parole? Has the Court of Criminal

Appeal erred in law, as we submit it has in this

case and every other case where it has declared

such persons eligible for parole? Have the courts

abrogated their legislative obligation in declaring

such persons appropriate persons for consideration

for parole? That is the question, in our

submission.

BRENNAN J: This Court is not usually involved in answering

academic questions.

MR WEINBERG:  With respect, Your Honours - - -

BRENNAN J:	It is concerned only with the exercise
MR WEINBERG:	- - - it is far from academic, with respect,

Your Honour, because it has the most practical

consequence so far as this offender is concerned

and all other offenders who fall within his
description. It means, in effect, that every

offender in this State who is declared eligible for parole serves, in effect, one-third of his sentence instead of two-thirds of his sentence.

Shrestha 21 24/10/90

DAWSON J:  Why could not the Governor-General issue a

licence on condition that he remains in the

country?

MR WEINBERG: Perhaps he could.

DAWSON J: That solves the problem.

MR WEINBERG:  No, it would not, with respect, Your Honour.

That	would not be supervised parole on condition.
That	would not be conditional freedom in accordance
with	parole or any of those matters - - -

DAWSON J:  Why would it not? It would mean if it could not

be conditional freedom he would have to go back to

gaol.

MR WEINBERG:  What interest does this country have in having

this person remain here on licence? What community

interest does Australia have in having an offender

who has come here solely for the purpose of
importing heroin into this country remain here for

some period on licence after he has served a

particular period in prison.

DAWSON J: Well, if it is not interested in his

rehabilitation, all you are saying is he could be

returned to his own country at the earliest

possible opportunity.

MR WEINBERG:  No, Your Honour, because then we could put him

on a plane immediately and send him back but the

courts - - -

DAWSON J:  And apparently you can.

MR WEINBERG: Well, you can but the courts should not

countenance that and they do not countenance it

because they should declare these people ineligible

for parole. They should serve a period of

imprisonment in order to carry out the principles

of general deterrence.

TOOHEY J: That is achieved by the Governor-General not

issuing a licence and the prisoner remaining in

prison until the remission procedures catch up with

him and his sentence is served.

MR WEINBERG: But, Your Honour, that, with respect, is

running away from the issue. The issue is whether

the trial judge has performed the task which

Parliament has vested in him properly.

DEANE J: That is facing the issue. It is saying, "If the

Commonwealth or the authorities have an appropriate

parole system the appropriate sentence is this",

dealing with the eligibility by reference to this

Shrestha 22 24/10/90

person. If the Commonwealth sees fit to keep him

in gaol when otherwise he would be on parole, let

it be obvious that that is the Commonwealth's

doing. Do not put it on the courts.

MR WEINBERG:  Your Honour, it is Parliament which has put it

on the courts.

DEANE J: Then let it be obvious that it is - Parliament has

not put it on the courts.

MR WEINBERG: It has, with respect, Your Honour. It has

said to a judge that he should not declare a person

eligible for parole if it is not appropriate to do

so by reason of his antecedence.

DEANE J: But you are going around in circles because the

judge is dealing with it as of now. He can only

look at the person as of now. Within 4 years

policies could change, laws could change. A

prisoner who marries the gaol wardress may become

eligible to become a citizen of a country.

MR WEINBERG:  Of course all those things could happen,

Your Honour, and that is a cogent argument for

saying, as some countries have done, that parole

authorities can release people whenever they deem

it appropriate to release them and some

jurisdictions have exactly that regime. In

Australia we do not. We have a regime which says,

in effect, the community does not have sufficient

confidence in the way that parole authorities are

likely to carry out those functions. Some crimes

are such that judges must impede or inhibit the
exercise of the power to release on parole in

certain cases, and then Parliament spells out -

McHUGH J:  Does that mean that in the case of the

international criminal that the court is only

concerned with punishment and deportation?

MR WEINBERG:	Yes, what else, Your Honour? The factors of mitigation are taken into account in punishment, of
course, in order to determine the appropriate
measure of punishment but this community has no
concern, in our respectful submission, in putting
these people out on parole or of working in the
community or doing something of that kind.

McHUGH J: But they are not putting them out on parole.

MR WEINBERG:  That is right. They are being deported. The

question is: when should they be deported?

McHUGH J:  No, the court is just simply saying they are

eligible for parole but if the authorities do not

want to do it it is a matter for them.

Shrestha	23	24/10/90
MR WEINBERG:	Your Honour, the courts are not simply saying they are eligible for parole.	By saying that they

are making them eligible for parole. If the courts

were to say they are not eligible for parole then

different consequences flow in respect of every one

of these offenders.

TOOHEY J: Precisely the same consequences would flow

whether the judge declared eligibility for parole
or not if the Commonwealth withheld the grant of

licence until the remission period had operated.

MR WEINBERG:  Yes, if that was so, but Your Honour

postulates the "if". That is the very point: if

this judge had declared this prisoner not to be

eligible for parole and the Court of Criminal

Appeal, as it ought to have done, upheld that

decision then the consequence would be that this

prisoner would serve 6 years imprisonment. Of

course he could be released earlier; of course he
could be deported at any time, but the normal

consequence - - -

TOOHEY J:  You are talking about being released earlier; we

are talking about being released later. You want

the Commonwealth tail to wag the State dog, do. you

not?

MR WEINBERG:  No, Your Honour, with respect. This

application has nothing peculiar to do with the

Commonwealth position at all; it applies with

equal force to the States. The States are in
exactly the same position. State offenders are in

exactly the same position.

BRENNAN J: Well, it is not quite because the case of this

accused is one which, as you put it, will be dealt

with under section 19A of the Crimes Act. From

start to finish there has never been any question

of this prisoner ever being on parole; he is

never been likely to be on parole. This is an

appeal - an application for special leave to

appeal to deal with an order that has been made by

a judge with respect to eligibility for parole;

parole to which he will never be admitted in

practice.

MR WEINBERG:  An order made by the Court of Criminal Appeal

saying that a judge had erred in declaring that he

should be - - -

BRENNAN J: Quiet. A parole to which he will never be

admitted in practice and the reason why special

leave is sought is an order that the record of the

court can be amended so as to affect the exercise

of the discretionary executive power.

Shrestha 24 24/10/90

MR WEINBERG: With respect, Your Honour, that is not my

submission at all.

BRENNAN J:  I appreciate it is not your submission, but it

is the effect and the fact, is it not?

MR WEINBERG:  No, Your Honour. The application in this

case, as Your Honour puts it, in relation to this prisoner affects this prisoner in this particular

way but the question of general principle affects many prisoners - State prisoners and Commonwealth

prisoners - - -

BRENNAN J: 

Of course, I under that you wish to have the

question of general principle agitated but the
vehicle which you have chosen for it, in this case,
is a vehicle in which the exercise of this Court's

power, if the special leave be granted, will have

no practical effect except to affect the exercise

of an executive power under section 19A.

MR WEINBERG: 

It will correct the law as misstated by the

Court of Criminal Appeal. It will prevent future courts and judges from following the erroneous decision of the Court of Criminal Appeal in both

Commonwealth and State matters right throughout

this country. It will mean, if we are right in our

submission, that persons who fall into this

category of offender, sui generis, we say, will
all, every one of them, end up serving

significantly longer terms of imprisonment than if

this decision is followed and regarded as correctly

stating the law.

BRENNAN J: Would-it be right to say that the right of the

Commonwealth, being the applicant for special leave in this case, has it within its own powers under

section 19A to effect, in the case of this prisoner, precisely the same result as any

successful appeal of the Court might have.

MR WEINBERG:  It would be no more right to say that than to

say, in every case, that the Crown, in right of a

State, has exactly that power - by virtue of -

under a different cap making a decision to refuse

parole.

BRENNAN J: Well, that would not be right, would it, because

then there would be a right to have a mandamus to

consider a parole application?

MR WEINBERG:  It is an odd way around my answer, with

respect, Your Honour, but the point that we were

endeavouring to make was that there has been a very

significant misinterpretation of a mandatory

requirement of the legislation, if our submission

be correct.

Shrestha 25 24/10/90

McHUGH J: But the point has been around for 13 years.

MR WEINBERG:  Yes, it has, Your Honour.

McHUGH J: Why.has it? Now, one cannot feel that there is

some conflict between different arms of the

Commonwealth - - -

MR WEINBERG:  Your Honour, there are a number of judges who

have taken the view that this line of authority

which began in New South Wales in Riche's case are

wrong and they are still not following it. Even as

recently as a few weeks ago, Mr Justice Sully

declined to follow it in one matter.

Mr Justice Nicholls, in Western Australia, has
declined to follow this line of authority.

Mr Justice Brinsden dissented on three occasions at

least. Mr Justice Nathan has dissented.

Mr Justice Olney has declined to follow this line

of authority. There are a number of very

distinguished and senior judges who think that this

line of authority is simply and plainly and

obviously wrong. Academic commentators who have

written on parole regard the decision in Riche's

case and the New South Wales line of authority as

absurd.

MCHUGH J: Was that Mr - - -

MR WEINBERG: Rinaldi - - -

MCHUGH J: Rinaldi.

MR WEINBERG:  - - - in his treatise on parole. He stated as

early as 1974 that there were really only three

categories of cases where a person would be

declared inappropriate to receive parole. On

page 61 he identified this as an obvious category.

Now, I do not extol Mr Rinaldi as the world's

greatest living authority on sentencing but he did

write the only treatise on parole in Australia and

he and a number of senior judges have taken the

view that the courts have gone very badly and
obviously wrong in this area.	We submit that they
are right, that the courts have gone wrong.	Of

course the point has been around for a while and it

is time, with respect, given that judges are still

going in all directions on this point, that this

Court, in our submission, reflected upon the matter

and resolved it.

BRENNAN J:  It is not surprising when the argument about the

desirability of declaring eligibility for parole is

hinged on the exercise of a completely different

power, namely, a power to deport so as to frustrate

any prospects - - -

Shrestha 26 24/10/90

MR WEINBERG:  That is the difficulty and that is what

confuses the issue to some degree and that is why I

have been endeavouring to analyse it in terms of

what a trial judge's obligations are at the point

of sentencing.

DAWSON J:	What you really say is, "Look, the trial judge has got to look at the facts as they are. Whether
the Commonwealth is right or wrong in the way in
which it approaches it, those are the facts of
life."

MR WEINBERG: Precisely.

DAWSON J: Those are the facts of life. The facts of life

are that "this man is going to be deported the

moment he is released on parole and for that reason

I shouldn't. The Commonwealth is acting in -

MR WEINBERG: Unless one is paying lip service to the

legislation which requires the judge the carry out

a certain task and to perform a certain task and

the legislation could not, in our submission, be

clearer. The Chief Justice of New South Wales,

Sir Laurence Street, was the judge who, if I could

put it this way, led the movement away from what

had been regarded in the early cases as an obvious

conclusion.

The Court of Criminal Appeal in

New South Wales initially and even without argument

said, "These people are not suitable for parole.

Of course they should not be considered eligible for parole or given minimum non-parole periods."

It was obvious from the nature of parole.

DAWSON J: Simply because the body to control parole cannot

do it.

MR WEINBERG:  Because they are not appropriate persons to be

granted parole because their antecedents are such

that parole was inappropriate for them.

DAWSON J:  The suitability of parole is predicated on the

ability to impose a conditional freedom and you

cannot do it - - -

MR WEINBERG:	That is right, Your Honour.
DAWSON J:	- - - rightly or wrongly because the Commonwealth

takes it out of your hands.

MR WEINBERG:  And Chief Justice Street, in Riche's case,

took the view - in a case, I might add, which we do

disagree with; the result was probably right in

Riche's case because, in Riche, the person in

question was an Australian resident but foreign

Shrestha 27 24/10/90

national. He had lived here for about a year and a

half and Chief Justice Street said of that person,

"The mere fact that he liable to be deported, as he

is in that condition, doesn't mean that you can

find him not an appropriate person to fix a minimum

non-parole period." We do not disagree with that

but that is not these cases. We have a category of case where these people have no ties at all to this country, none whatever, and we are at a loss, with

respect, to see what rational purpose is served by

a judge muttering an incantation when sentencing

about somebody being an appropriate person to be

eligible for parole when plainly that person is not

an appropriate person.

McHUGH J: 

What do you say about what Mr Justice Marks said

in a Victorian case that it is a question of
equality under the law?

MR WEINBERG: 

Your Honour, we say that discrimination

argument is quite misconceived because there is no

discrimination here. It is not as though you are

comparing like cases with like cases. In this

case, at page 65 of this judgment of this Court of
Criminal Appeal, the test that the Court of

Criminal Appeal adopted in asking whether this person was an appropriate person to be granted

parole was the following: had he been an

Australian and an Australian resident, would he

have been eligible for parole? Answer, yes,

therefore we ought to hold that he is eligible for

parole. That, with respect, is a complete non

sequitur.

DAWSON J: It is.discrimination the other way. In fact it

means that international criminals are treated more

favourably than the domestic crimes.

MR WEINBERG:  Your Honour, I would prefer to avoid

discrimination. I ran that argument in the Court

of Criminal Appeal in Binder and the Court did not

like it.	I would prefer to avoid adopting it, if I
may, with respect, Your Honour. It is not a matter

of discrimination. It is a matter of

differentiation - - -

DAWSON J: Well, differentiation.

MR WEINBERG:  - - - and differentiation in a non-pejorative

sense. You have got a different kind of person for

whom a particular regime is plainly not

appropriate. The crux of the matter - the bottom

line of the matter is that a judge should only

declare that a person should be eligible for
parole, or that it is appropriate to fix a minimum

non-parole period, if it is and if it is not he

should not.

Shrestha 24/10/90

If what is happening at the moment is whether, through misguided notions of equality or

international covenants and civil liberties and

matters of that kind, there is a concern about

unfair treatment against foreign nationals and residents then, with respect, that is too bad.

That simply does not come to terms with what the legislation in every one of these cases requires of a judge sentencing and if there are complications involving what a parole board might do or what the Governor-General might do then, again that, with

respect, is too bad because a trial judge is

obliged to comply with the legislation as it

stands, as it appears before him and a Court of

Criminal Appeal, in this case, was obliged to do no

less, in our submission.

BRENNAN J:  Mr Weinberg, your argument must be this, must it

not: that looking at the provisions of the Act and

looking at the case before him the judge should be

satisfied that the particular individual is not a

fit case for parole because he is a person who will

be deported, say, as soon as he is released from

gaol.

MR WEINBERG:	And has no ties in this country.
BRENNAN J:	And has no ties in this country.
MR WEINBERG:	And will want to leave this country all those

matters.

BRENNAN J:  Now, is there any evidence before the Court of

Criminal Appeal or the trial judge along these

lines? ·

MR WEINBERG: That he is a person who was an illegal

entrant, Your Honour? Yes, there is evidence that

he lied - - -

BRENNAN J: About deportation.

MR WEINBERG:  I am sorry, Your Honour.

BRENNAN J:	Any evidence about deportation?
MR Weinberg:	Your Honour, I am not putting it, with

respect, in the way that Your Honour put it to me.

I am not saying that it is because of some

prediction about whether he will be deported, or

when he will be deported, that the judge was

obliged to find that he was not eligible for

parole. I am rather putting it that because the

antecedents of this offender are such that it

becomes plain that he is not a suitable candidate

for parole and he is not a suitable candidate

because of what he is and who he is and what he was

Shrestha 29 24/10/90

and what his connection with this country were,

that the judge was obliged to find that he is not a

suitable candidate for parole.

In other words, I am not, with respect, going

to engage in a kind of - I say this with great

respect to Mr Justice Marks who attributed those

arguments to me in Binder's case, and I did not put

them - that is one of the most frustrating things

of being counsel, when you find arguments being

referred to in an appellate court judgment which

you would have disavowed, but

Mr Justice Marks contended that in Binder's case we

had argued that it was the likelihood of

deportation that was the critical factor and he
then said, ttWell you have got to look at
antecedents which are past matters; likelihood of

deportation as a future mattertt: we did not argue

that; nor have the judgment of Mr Justice Brinsden

in Western Australia; nor had Mr Justice Nathan or

any of the judges who have considered these

matters.

It is not a matter of predicted what might

occur, it is a matter of looking at the antecedents

of this particular offender, and what we say is

there is evidence that he was an illegal entrant;

there is evidence that he is liable to

deportation - in fact, the Court of Criminal Appeal

accepted that he was liable to deportation - there

is evidence that he had never had the slightest tie

with this country except to come here twice to

import heroin: once in 1987 and once on this

occasion. All his ties are back in Nepal: all

those matters are abundantly clear. The only

reason the Court of Criminal Appeal declared him

eligible for parole is said to be by virtues of

paragraphs 37A(d) and (e). We, for the life of us,

cannot understand what paragraphs (d) and (e) have

to do with it.

If one goes to paragraph (d) itself, that

would even entitle the Court to have regard to

future matters. If anything that would support our

argument, but it does not matter, we submit that

such people, by virtue of their antecedents, their

background as illegal entrants into this country -
prohibitive immigrants, to use the old

terminology - are simply not persons in respect of

whom it is appropriate within the meaning of the

legislation.

BRENNAN J:  Do I take it from that that you put to one side

the matters that you told us about earlier; namely

as to what is likely to happen to this man?

Shrestha 30 24/10/90

.MR WEINBERG:  Prediction, as such. We do not rely upon

prediction, Your Honour - we do not rely upon it.

I said so -

BRENNAN J:  And you do not put it as a matter of relevance for the grant of special leave?

MR WEINBERG:  No, Your Honour. We say that the error lies

in the misinterpretation of the criteria for

declaring eligibility for parole: that criteria

being common to every State, namely that the

antecedents, or antecedent character of the
offender makes him unsuitable as a person to be

eligible for parole, and his antecedents are

everything that has gone before.	We do not submit
that our argument rests upon a prediction.	We were
telling the Court, in answer to the Court's
question, what would happen to this.	The fact
is - - -

BRENNAN J: So, you put aside any consideration of the

executive function under 19A?

MR WEINBERG:  It is not necessary for the purpose of our

argument. We have put it aside, Your Honour.

BRENNAN J: Very well.

MR WEINBERG: 

Now, Your Honours, I could take the Court

through the cases, but I do not propose to do so.
They are all there and they make it very plain that

this has been an issue that has been around for a

long time.  We say that the courts have gone wrong

as from Mesdaghi's case in New South Wales; the

case immediately after Riche's case. That was the
case that really, in our submission, went very
badly off the rails, because there the court said
that Riche's case has intended to overturn the
earlier decisions of the New South Wales Court of

Criminal Appeal, that - - -

McHUGH J: Riche attempted to explain them away.

MR WEINBERG: That is all it was. It was a case that was

plainly distinguishable, and we do not even submit

that Riche was wrongly decided.

McHUGH J: Well then Mesdaghi came out into the open.

MR WEINBERG: But Mesdaghi was plainly wrong, in our

submission; so was Bensegger, so was Binder by the

majority. As far as the West Australian cases are

concerned, we had a reversion after the initial

decision in Bensegger's case to a line of cases

where the judgments were not bad, because what the

court was doing was saying, "Well, there is nothing

in relation to these foreign drug couriers which

Shrestha 31 24/10/90

would activate, or require us to positively find

that it is appropriate."

So, where you had people whom trial judges

held were not suitable to be considered for parole,

and were appealing against that line on Bensegger,

you had a line of cases, including Zaharoudis'

case, including Chan's case, they are all referred

to in our outline, where the courts declined to
intervene and said, "No, we will allow that non-

eligibility, or non-minimum parole period to

stand." But suddenly we get Shrestha and we are

back to where we were in Western Australia.	We are
back to Bensegger.	We are back to Mesdaghi, and

that is a matter of very great concern, in our

respectful submission, because - Your Honour said,

"There have been 13 years", a number of those cases

have not involved the fixing of non-parole periods.

If one looks at the actual number where non-parole

periods have been fixed, it is not very many.

TOOHEY J:  Mr Weinberg, in an effort to try to test the

special leave nature of the application, I take it

you would argue that any offender who more or less

fell into the description of this offender would be

someone for whom parole was inappropriate?

MR WEINBERG:  Yes. We make that submission that positively

it is inappropriate for anyone fitting this kind of

description ever to be granted eligibility for

parole, or to be given a non-parole period.

BRENNAN J:  What are the elements by reference to which you

identify this offender and others of the same

calibre?

MR WEINBERG:  They are foreign nationals and foreign

residents who have come to this country for the

sole purpose of committing a serious criminal

offence or offences and then departing forthwith.

They have no ties whatsoever with this country.
They have no intention of staying in this country.

We say that category of offender ex hypothesi is a category of offender in respect of whom it just	cannot be appropriate to fix a non-parole period or
declare eligibility for parole in any case.

McHUGH J: What about the person who comes in those

circumstances but having been caught, decides to

turn informer and fears to go back to where he came from and seeks to do a deal with the authorities to

be allowed to stay here after he has served his

prison sentence; what about him?

MR WEINBERG:  A special case, Your Honour. It is open to

the 'Governor-General or the minister to do whatever

needs to be required in that particular case.

Shrestha 32 24/10/90

McHUGH J:	But can he be paroled?
MR WEINBERG:	No, he should not be declared eligible for parole, and if he is not declared eligible for
parole he cannot be paroled. There is one other
matter if we could -

DEANE J: Mr Weinberg, is the most recent statement of the

Court of Criminal Appeal of this State that in

Tan Hai Huat v Reg, in July of this year?

MR WEINBERG: No, Your Honour. There are - I think,

Jackson v Reg is the latest statement - - -

DEANE J: Well, can I take you to Tan Hai, which is in the

middle of this book of authorities and is a

judgment of a court who included Justice Wallace,

who was a judge in the present case?

MR WEINBERG:  Yes, Your Honour.

DEANE J: What do you say about the court said from page 8

to page 10?

MR WEINBERG:  Your Honour, there are three judgments in

that. Mr Justice Wallace held that it was not

appropriate to grant parole; Mr Justice Franklyn

held that it was not appropriate to grant

eligibility and Mr Justice Rowland said that

Shrestha's case required that parole eligibility be

granted.

DEANE J: Well, I was looking at Justice Wallace's judgment.

MR WEINBERG: Yesr Your Honour, from page?

DEANE J:  From page 8 on.

MR WEINBERG: His Honour referred to Shrestha's case - - -

DEANE J: And explained it.

MR WEINBERG:  - - - and said that there were peculiar facts there insufficient to activate section 37A. We are

at a loss to know what they are, Your Honour. In

addition to that, in Jackson's case we have exactly the same kind of situation, decided after this case of Tan Hai and once again, as I recall it, Shrestha is followed in Jackson's case and the court

overturned a decision of a trial judge in a State

matter where that trial judge had refused to

declare eligibility for parole.

DEANE J: Where is that case?

MR WEINBERG:  Jackson should be the next case in the

material, after Tan Hai, Your Honour - a very short

Shrestha 33 24/10/90

matter. If my recollection serves me correctly,

that is another application of Shrestha. And that

is a state matter so we have got no concern in it

but we say it just demonstrates the problem.

DEANE J: Well then, apart from the reference to the instant

case in that judgment of Justice Wallace, what do

you say about what His Honour says on page 8?

MR WEINBERG:  We say it cannot be right, Your Honour. There

is nothing peculiar about the facts of Shrestha's

case.

DEANE J:  I said, "Apart from the reference to the instant

case in that judgment, what do you say about what to be conscious of most of the matters you mention?

MR WEINBERG: Well, we have no difficulty with the decision

in Chan itself.	We have submitted that Bensegger
was wrongly decided.	We have no difficulty with

the decision in Zaharoudis, although we submit that

Mr Justice Brinsden in his effectively dissenting

judgment in Zaharoudis was correct, and not

Chief Justice Burt, but there was no problem

arising out of those West Australian cases, because

once the West Australian legislation was changed,

to require a judge to be satisfied affirmatively

that it is appropriate to grant'parole in these

cases, there are a number of such cases where the

judges simply refused to be so satisfied.

What we are now seeing in West Australia is a

reversal of that trend as manifested now in

Shrestha·and in Jackson and we say, with respect,

it is wrong.

DEANE J:  One last question while I am interrupting you.

You keep saying that the judge must decide it is

appropriate to grant parole - - -

MR WEINBERG:  In West Australia; in other States sometimes he must decide that it is not appropriate. In

Victoria, for example, there is a presumption that

a non-parole period will be fixed unless the judge

is satisfied that it is not appropriate.

DEANE J:  I had not appreciated that that was the wording.

Could you direct me again to the Act?

MR WEINBERG:  It is section 17 of the Penalties and

Sentences Act 1985 (Vic), Your Honour.

DEANE J: That is not the Act we are currently concerned

with.

MR WEINBERG:	No.
Shrestha	24/10/90
McHUGH J:	37A.
MR WEINBERG:	37A requires that the judge be affirmatively

satisfied that it is appropriate for a person to be

declared eligible for parole.

DEANE J:  I am sorry, you were saying, appropriate to grant

parole.

MR WEINBERG:  No, I am sorry, Your Honour, I should have

said, it is appropriate to grant eligibility for

parole. The only other matter, if the Court

pleases, is just to refer the Court to one other

complication, as though the matter were not

complicated enough, and that is section 19AK of the

new post-17 July 1990 Crimes Act 1914 - 19AK.

BRENNAN J:  Have you completed your consideration of the

earlier section 19A? If so you might like to

return - - -

MR WEINBERG:	I will certainly return that, Your Honour. Could we simply draw to the Court's attention that
the new 19AK - it might be said that these new provisions are starting to take on remarkably
similar appearance to some of the provisions of the
Income Tax Assessment Act - we are reaching, I think, triple Zs in some cases - but the new 19AK 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 liable to be deported

from Australia.

Now, what we say about that is, of course,

that is right.	We do not disagree with that
proposition if it is properly understood.	What

that is designed to deal with is the case of the

Australian resident, or person who has ties to this

community, and of course a judge in those

circumstances is not obliged to refused to fix a

non-parole period in such cases, merely because the

person may be liable to be deported from Australia.

That has always been the case. It was the case at the time of Riche. There are New South Wales cases

referred to in Rinaldi's case note dealing with

Mesdaghi's case, in which the author is fairly

vitriolic about Mesdaghi's case in which he refers

to the fact that the New South Wales Supreme Court

did grant non-parole periods where people were

resident or not merely people coming here for the

sole purpose of committing a crime.

Shrestha 35 24/10/90

So, we would say that properly understood

section 19AK does not in any way violate the
principles that we have been putting forward.

Indeed, Mr Justice Sully in the matter of Choi

which is included in the materials, and

Mr Justice Nicholson in the recent West Australian

matter involving four accused, Lambert and Others,

both refused eligibility for parole notwithstanding

section 19AK, because the persons in question were

foreign nationals, foreign drug dealers who had

just come here for the purpose of importing drugs

into this country.

The problem that we have with that is that

there is an explanatory memorandum note which is

directly at odds with what we have been putting in

relation to section 19AK, or at least, one line of

it is, and it is to be found in the explanatory

memorandum to the sentencing legislation materials.

I do not know whether the Court has copies of this

new comprehensive Commonwealth Code. If it would

be convenient, we could arrange for copies to be

supplied to the Court because it is not - - -

BRENNAN J: It is probably desirable if a sufficient number

be supplied in any event, Mr Weinberg.

MR WEINBERG:  Yes, Your Honour, we will do that. So if I

could just be heard to read what the explanatory
memorandum says at this stage. In relation to the

proposed section 19AK, it says as follows:

This section provides that an offender's

possible deportation does not prevent a court

from fixing a non-parole period. The fact

that a person may be liable to deportation,

without the factors in sl9AE also being

present, is not to be a bar to a non-parole

period being fixed. In all jurisdictions,

other than Western Australia, federal

offenders who may be liable to deportation

either have non-parole periods fixed by a

court or a non-parole period determined by

reference to the State law -

That last sentence is incorrect in any event as to the appreciation of West Australian law, but then

it goes on to say this:

It is intended that in general non-parole periods be fixed for deportees.

Now that is the line which is, we say, at odds with

the view that we would wish to adopt and submit to

this Court as a proper construction of

section 19AK. Whether one would be entitled to

have recourse to the explanatory memorandum in

Shrestha 36 24/10/90

these circumstances is another question but we

thought it desirable that it be drawn to the

Court's attention.

BRENNAN J: Thank you Mr Weinberg.

MR WEINBERG: If the Court pleases.

BRENNAN J:  Mr Roberts-Smith.

MR ROBERTS-SMITH: If it please the Court I hand up an

outline of submissions in respect both of the

application for special leave and the appeal. I

might also mention that the explanatory memorandum,

or at least part of it, to which my learned friend

has just been referring is, in fact, in the back of

the book of authorities which we have handed to

Your Honours. That is the smaller folder.

BRENNAN J: Yes, Mr Roberts-Smith.

MR ROBERTS-SMITH:  If it please the Court, there may be some

slight difficulty with the way our argument has

been presented in the outline because, in our

submission, the focus of the applicant's case here
has shifted quite considerably between the
presentation of the grounds of appeal and the
presentation of argument before Your Honours today.

The way the application for special leave has been

argued does not, in our submission, in fact

accurately reflect the basis and the substance of

what is in the grounds of appeal.

The grounds of appeal, at page 72, in our submission, specifically go, to the extent that

they have any substance in terms of a question of

law, to the proposition - and I refer particularly

to paragraph 2(b) on that page:

The Court of Criminal Appeal was wrong in

law in so far as it found, and applied to the

Respondent, the principle that mere liability

to deportation was not negatively decisive of

the question -

of eligibility for parole. Put it another way,

perhaps in the positive: the argument raised by

that ground of appeal clearly is that a sentencing

judge who is confronted with the task of sentencing
an offender who is liable to deportation must, for
that reason alone, refuse an order making that

person eligible for parole.

TOOHEY J: That is not the argument that the Court now has

to face.

Shrestha 37 MR ROBERTS-SMITH QC 24/10/90

MR ROBERTS-SMITH: That is not the argument that was

addressed this afternoon.

TOOHEY J:  I sympathize with your predicament because the

argument that has ended up does not bear a great

deal of relation to the grounds of appeal.

MR ROBERTS-SMITH: Quite so, Your Honour. And indeed, the

argument with which we now seem to be confronted

really is quite a different argument altogether.

Indeed, my learned friend resiled from the proposition that mere liability to deportation alone should be negatively decisive, but put the

argument for the applicant instead on the basis

that one must look at a constellation of factors

and enumerated some of those - one does not know

whether the list is exhaustive - - -

BRENNAN J:  Oh yes one does. He was asked what were the

criteria and he itemized them, so that is the

argument you have to meet.

MR ROBERTS-SMITH:  I am obliged to Your Honour. He

identified factors: foreign national; resident
elsewhere; no ties to Australia; coming to

Australia for the purpose solely of committed an

offence - - -

BRENNAN J:	A serious crime.
MR ROBERTS-SMITH:	A serious crime.

McHUGH J: With the intention of leaving.

MR ROBERTS-SMITH: With the intention of not remaining

afterwards, certainly. That, of course, as I have

indicated, is quite a different proposition to, in

our submission, anything which is raised on these

grounds of appeal. To come back to the general

question whether those factors considered
exclusively must render the question negatively

decisive, to use the formulation in the grounds of

appeal, one would have to acknowledge that no other

considerations enumerated in section 37A of the

Offenders Probation and Parole Act of

Western Australia, for example, has any relevance

in the making of that decision.

And that, in our submission, to put it in one

sense in a nutshell, flies in the face of what is

actually in the section, because the section lists

a whole range of considerations. It does not

specifically mention those which have been advanced

by my learned friend and if those factors are to be

raised to the level of mandatory determinates of an
order for eligibility for parole, then what the

applicant is really asking Your Honours to do is

Shrestha 38 MR ROBERTS-SMITH QC 24/10/90

legislate judicially to override the express

provisions of section 37A of the Offenders

Probation and Parole Act.

TOOHEY J:  I do not know that that is right, is it? I think

Mr Weinberg would say that in the sort of situation with which the Court is faced, the factors that he

has enumerated are the relevant considerations.

MR ROBERTS-SMITH:  In every case, and that there are no

others. That, with respect, must follow.

McHUGH J: It outweighs the nature of the offence and it

outweighs every other criterion.

MR ROBERTS-SMITH: Yes. It outweighs every other statutory

criterion in section 37A in every case and

irrespective of the circumstances. That was the

way it was put, with respect, and our submission is

that simply cannot be right because it means that
in those cases no effect is being given, at all, to

the other provisions of section 37A.

TOOHEY J:  I am not sure that I follow that,

Mr Roberts-Smith. I do not know, and I cannot put

Mr Weinberg's argument for him, but I do not know

that he would seek to exclude other factors if they

could properly be brought within subsection (3). I

rather took his argument to be that in the sort of

case with which we are concerned here there are no

other considerations to which it would be proper

for the Court to give consideration in terms of

subsection (3).

MR ROBERTS-SMITH: Well, with respect, Your Honour, as I

understood Mr Weinberg's submission, it was

essentially that where those factors exist then,

inevitably, in every case there would be a refusal

of an order for parol, inevitably, and irrespective

of any other consideration.

BRENNAN J: Perhaps you should address not only that

proposition, but also a proposition which reads

something like this, "It would be a wholly

exceptional and unusual case where it would be

appropriate under section 37A to declare a prisoner

eligible for parole where these elements are

present."

MR ROBERTS-SMITH:  If I could very briefly at this stage

respond to that proposition, Your Honour.	The
answer, perhaps, is that that may well be so.	We
do not concede that, but it may well be so, but

even if it were, we would submit that that is not a

matter which calls for special leave from this

Court. That does not raise a question of law which

justifies the grant of special leave in the

Shrestha 39 MR ROBERTS-SMITH QC 24/10/90

circumstances., certainly, of this case. That

perhaps is a short answer to that, but for the rest

of it the answer perhaps lies in the general

submissions that I will make in just a moment.

First of all, in relation to the application for special leave, our proposition is that whilst

there is, in one sense, an area of commonality

about the considerations to which courts have to

have regard in light of the various statutory

provisions, federal and State, around Australia,
there are, none the less, quite significant

differences, and it may be, in one sense, almost

quite remarkable that in recent times courts in the

different jurisdictions have come, it seems, almost

unanimously - I am speaking now at the Court of

Criminal Appeal level - to the conclusion that
liability for deportation is not negatively
decisive of itself, and when I say "liability for
deportation" I suppose now I must say "the factors
enumerated by the applicant in the course of
argument today", those factors alone.

But the point is, in our submission, that

there are relevant differences in the statutory
provisions State by State. For example, it is not

without significant that in Chi Sun Tsui the

decision of the court turned very largely on the

application of section 26 of the Probation and

Parole Act of New South Wales, which provided that

the Parole Board may not determine:

that a prisoner should be refused release on

parole by reason only that ..... the prisoner

may become liable to be deported.

TOOHEY J: That is not the applicant's argument, is it?

MR ROBERTS-SMITH:  Liability to deportation? No it is not.

But it illustrates the proposition which we seek to

advance in this regard that there are differences

in terms both of the particular statutory

provisions and the statutory context which may make

on which eligibility for parole is to be determined	the appropriate conclusion as to the considerations
differ from State to State, and we direct those
comments, as I say, to the application for special leave. Those comments are directed to grounds A
and B, and also, one might observe that in relation
to ground C the allegation is that the Court of
Criminal Appeal was wrong in law in so far as it
found the respondent's personal circumstances were
sufficient to distinguish his case from Zaharoudis
and Chan. But that, in our respectful submission,
turns simply on that court's view of the facts, and
raises no question of principle or law, which, in

Shrestha 40 MR ROBERTS-SMITH QC 24/10/90

our submission again, would justify a grant of

special leave.

McHUGH J:  But that is not the way it has been put. The

special leave point is quite a narrow one. There is

an important point of principle involved which is

relevant to all the legislation around Australia

even though there is no identity between the terms
of that legislation.

MR ROBERTS-SMITH:  Yes. Well, the important point of

principle, as I now understand it, is simply that,

whatever the legislation, when one considers making
an order for eligibility for parole, the existence
of the factors which have been enumerated is

negatively decisive.

TOOHEY J: 

No, not "whatever the legislation", but within

the framework of the legislation as it appears in
the various States and the Commonwealth - - -

MR ROBERTS-SMITH: 

Yes.

TOOHEY J: 

- - -the factors that exist in this sort of case

must, the applicant would say, inevitably lead to a

refusal of a declaration of eligibility for parole

MR ROBERTS-SMITH:  Yes, that is the proposition.

TOOHEY J: It may be right or it may be wrong, but that is

the way it is put.

MR ROBERTS-SMITH:  Yes, that is the proposition, with

respect.

McHUGH J: That is a special leave point, is it not?

MR ROBERTS-SMITH: Perhaps that turns really on the answer

to the question at the end of the day and it may be

it might be appropriate for me to turn specifically

to that. The point is that, again, in the context

of the various statutory provisions, what we are

concerned with here is the exercise of a statutory discretion to order or not order eligibility for	parole and the decision is to be made on the basis
of the criteria in the particular Act and in our case, for the purposes of this appeal, it is of
course section 37A. They include:

(c) the antecedents of a convicted person;

(d) circumstances which are relevant to the

convicted person or might •.... be ..... at the

time he or she becomes eligible -

for parole, and -

Shrestha 41MR ROBERTS-SMITH QC 24/10/90

any other matter that the court thinks

relevant.

So, if one looks back to the historical evolution

of the interpretation of the sort of factors that

are relevant, clearly the description in

section 37A is as wide as any of the statutory

provisions which the courts have considered,

antecedents and section 37A(3)(e) clearly covers

virtually anything and one would have to say, in
particular, that the factors mentioned by the

applicant would be relevant considerations.

We do not say for a moment that they are not

relevant. Indeed, perhaps we could shortly put the

proposition that not only are they relevant, but the authorities and indeed the Court of Criminal

Appeal in this case has acknowledged that those

factors are relevant and are to be taken into

account, but the court does not go and did not go,

in this case, that one step further which the

applicant wants to go, and that is to say that

where they are there, that is negatively decisive.

TOOHEY J:  I wonder if that is the way that the Court of

Criminal Appeal looked at it, Mr Roberts-Smith. If

you look at page 65 of the application book, there

is a sentence which in a sense, I think, really

sums up the basis of the Court of Criminal Appeal's

approach to the matter. It is the sentence that

runs between Band C:

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.

MR ROBERTS-SMITH: Yes.

TOOHEY J: That seems to me to be the basis upon which the

Court of Criminal Appeal proceeded. Had he been a

resident he would have been eligible for parole.

There should be no distinction in this particular

case.

MR ROBERTS-SMITH:  Yes. One cannot argue against that.

That is clearly what the court said.

TOOHEY J: But in a sense, to say that is to belie the whole

range of considerations that might bear, and the

applicant would say, does bear, upon a decision to

declare eligibility for parole.

MR ROBERTS-SMITH:  Yes, although if one, of course, reads

the judgment as a whole, it is quite clear, with

respect, that the court was well aware of those

Shrestha 42MR ROBERTS-SMITH QC 24/10/90

factors. The facts of the matter had been

canvassed at some length by His Honour

the Chief Justice, in that judgment.

TOOHEY J: Yes, but that was in relation to the head

sentence, was it not, rather than the question of

eligibility for parole?

MR ROBERTS-SMITH:  Yes, quite so, but I simply make that

observation to illustrate the point that, although the context of parole, they were matters of which

he was clearly aware and the principle perhaps, of

His Honour's conclusion, was certainly that, had

the respondent been an Australian citizen he would

have been eligible for parole, and there should not

be a distinction drawn between him and an

Australian citizen in otherwise similar

circumstances for that reason. His Honour said

that and one cannot move away from it, but as I

say, it has to be read in the context that His

Honour clearly was aware of all of the other

matters which had been put, including indeed this
very argument, that those factors were such as to

render the respondent inappropriate for the parole,

because that was the way it was put by counsel for

the prosecution before the trial judge.

It was put on the basis, we would submit quite correctly, with respect, that the court was bound

by Zaharoudis and that line of authority. At
page 27, for example, having referred to

Zaharoudis, counsel for the prosecution said just

below line E:

In that case and in quite a number of

others, the persons who commit this sort of

offence in this sort of circumstance have not

been granted parole, or a minimum term as it

used to be, but not for the reasons simply

that they're foreign nationals or that they

would be liable for deportation because -

and perhaps the word "but" ought to have appeared

in there, one suspects -

when you take all of the factors to be
considered into consideration, it is just not

appropriate.

If one has regard to those remarks in the light of

the conclusions reached in Chan's case and others,

where mere liability to deportation was regarded as
not decisive, but other factors to do with the

foreign residence of the offender, the fact that he

had come in specifically to commit an offence and

that he was going to leave afterwards and so on,

Shrestha 43MR ROBERTS-SMITH QC 24/10/90

those factors were in fact used and relied upon by

the courts to say this person is not appropriate

for parole, but they were not putting it on the

basis that that would always inevitably be so.

They were saying rather, looking at this case, the circumstances of this case and having regard, in particular, to those features which include those

enumerated by the applicant view, "This is a case

in which it is not appropriate", but they were not

saying, "It must always be so".

DAWSON J:  I am not sure, Mr Roberts-Smith, that although he

disavows it, Mr Weinberg is not saying that those

factors inevitably render it inappropriate to

declare the person ineligible for parole, because

it renders him liable to deportation. I do not

know that you can actually avoid that in the end.

MR ROBERTS-SMITH: Well, if the argument is that those

factors are negatively decisive, because they
inevitably lead to deportation, in our submission,

that only increases the problem with that argument.

DAWSON J: Yes, it might, but the reason being that at the

bottom the argument is that you cannot impose
conditional freedom on this man and you cannot

impose conditional freedom because he is not going

to be here.

MR ROBERTS-SMITH: Well, if one comes back to that

proposition, that is the question of liability to

deportation, we would submit with respect, that

that is simply a matter of executive discretion and

it is a question which cannot be anticipated or

rather the answer to it cannot be anticipated,

because, as has already been observed today, if one

is dealing with an offender under section 19A of
the Crimes Act, as this respondent, of course, is,

then the Governor-General is able to release him on

licence at any time.	He does not have to wait
until the expiration of any minimum term.	He can

release him on licence at any time for whatever

purpose and if the policy of the executive

government is to release offenders for the purpose

of deportation and they decide to change that

policy so that the person is released within months

even of sentence, then that has got, with respect,

nothing to do with the courts. It is entirely a

matter for the executive and the argument applies at the other end of the scale as well. If having served the minimum term, the prisoner is then

released on licence by the Governor-General for the

purpose of deportation, that is a matter of

executive policy and that policy may change at any

time.

Shrestha 44MR ROBERTS-SMITH QC 24/10/90

The remedy, in terms again of this particular

case, for the Commonwealth, which is the applicant,
if the Commonwealth wishes to keep this man in
prison for whatever period within the constraints of

the sentence actually imposed upon him, is in the

Commonwealth's own hands. He is simply not to be

released or alternatively he could be released on

licence, as Your Honour Justice Dawson has said,

conditioned that he remain in Australia. Those are
matters of executive policy or decision making and
it may well be, and obviously is the case, that the

governments, not only the Federal Government, but

the State Government also, have taken the view that

the interests of the community are best served by

deporting these people at whatever time the

executive of the government regards as appropriate.

In other words, it is presumably simply less costly

to have them out of the country than to support

them, either in prison or within the community, but

that is a matter for executive policy decision. It

is not a matter for the courts. If no decision is

made by the executive at all, then as my learned

friend says, the offender serves whatever time has

been imposed upon him by the judge.

The reasoning also seems to be that the

purpose of parole is confined to rehabilitation

through conditional freedom and Power's case was

referred to in support of that proposition. We do

not, with respect, disagree with that, but we do

say, as indeed was recognized we submit in

Power's case, that rehabilitation through

conditional freedom is only one of the purposes of
parole. In Breurer and Chaney, Chief Justice Burt,

with whom Justice Kennedy agreed, said the fact that each of the applicants there was a foreign national, was entirely neutral and in the context

of rehabilitation, as I have said, in Power at

page 629 of the report, it was said by this Court

that:

the legislative intention -

was -

to provide for mitigation of the punishment of

the prisoner in favour of his rehabilitation

through conditional freedom.

In Deakin, which is referred to on our list of

authorities, again this Court at page 367 said in

granting special leave and ordering the imposition
of a minimum term:

The very severity of the maximum sentence made it the more appropriate to impose a minimum sentence.

Shrestha 45MR ROBERTS-SMITH QC 24/10/90

And His Honour Justice Walsh of the Supreme Court

in this State in Archibald's case, which is

number 9 on our list of authorities, at page 9

said:

it is well established that parole serves to mitigate punishment as well as to provide an opportunity for rehabilitation and a minimum

term can be justified on the ground of

mitigation alone.

And without turning to the particular references I

would also - - -

BRENNAN J: What is meant by that, Mr Roberts-Smith? If all

the relevant factors are taken into account in

determining an appropriate head sentence, what is

the occasion for mitigating the head sentence,

unless it is to achieve some further or other

objective such as rehabilitation?

MR ROBERTS-SMITH:  What presumably is recognized there is,

amongst other things, perhaps a need to provide a

prisoner with some sort of incentive to behave

properly in prison.

BRENNAN J: Well that is the good behaviour remissions, is

it not?

MR ROBERTS-SMITH: Well, no with respect, it turns, in this

context, on the fact that if a person does not

behave then he is highly likely to be regarded as

not being eligible for parole, but if there is no

prospect that he will ever get parole, because he

was not given the benefit of an order making him
eligible, then there is absolutely no room for any

incentive there at all.

BRENNAN J: Well then he will serve the full time and will

not get his remissions for good conduct.

MR ROBERTS-SMITH:  As well, that is so, but clearly the

submission simply is that parole also serves to

mitigate punishment.

DAWSON J: That can only be because there is an appropriate

sentence in all the circumstances and there is

another sentence which is the minimum that justice

requires.

MR ROBERTS-SMITH: Yes, that is so and the proposition, we

would say with respect, has been recognized in

Currey's case, (1975) VR 647, for example. At

page 650, the Chief Justice made this observation

about the position in Victoria:

Shrestha 46MR ROBERTS-SMITH QC 24/10/90

it seems to me that what the section is

concerned with -

that is the section as to eligibility for parole

is the lessening of the punitive aspects of

the sentence imposed.

TOOHEY J:  Mr Roberts-Smith, just as a matter of interest,

what is the comparison between the sentence imposed

by the trial judge, which was 12 years with

eligibility for parole, and the sentence imposed by
the Court of Criminal Appeal, which was 9 years
with no eligibility - in which case it is only
remissions that would operate - what are we looking

at in terms of effective sentences as between the

two?

MR ROBERTS-SMITH:  The formula is rather complicated. I am

just trying to work it out.

TOOHEY J: Well, that is no worry while you are on your

feet, but I am just wondering in which case the

sentence would be the longer?

MR ROBERTS-SMITH:  My recollection is that it is longer with

the longer head sentence, but perhaps I can - yes,
4 years sentence served for the 9 years and 6 years

sentence served for the 12 years.

TOOHEY J:  So you are better off?

MR ROBERTS-SMITH: Well, yes. It does not seem to be an

appropriate result, I must say.

TOOHEY J: Well, perhaps when you have done your sums you

can let us know how it works out.

MR ROBERTS-SMITH:  We will come back to that, yes. We have

had that experience before. When one reaches the
higher sentences, in fact one does get in a

situation where the actual time inside becomes

comparable to, if not sometimes less than, the time

inside on a lower sentence, where there is a

distinction in parole eligibility. Suffice to say,
in relation to that proposition, we rely on it,

that there is at least a further purpose in terms

of eligibility for parole and that is mitigation.

The major proposition that we assert, however, is

that in no circumstance is it relevant for a

sentencing court to have regard to executive

policy. It is not simply a question of practical

reality. A court certainly is required to have

regard to the law, but executive policy is not the

law. Executive policy can change overnight.

Executive policy may be administered in a whole

range of different ways. It may be fairly

Shrestha 47MR ROBERTS-SMITH QC 24/10/90

administered; it may not be; but those are
matters which, in our respectful submission, are

not matters which ought to be considered by a court

when exercising a judicial discretion.

DAWSON J:  Why not?

MR ROBERTS-SMITH: Simply because one really does not know

what the executive is going to do, firstly, and

secondly - - -

DAWSON J:  One may not, but it may be entirely predictable.

MR ROBERTS-SMITH: - - - because, in our submission, it

completely blurs the separation of powers between

the judiciary and the executive.

DAWSON J: Not at all; it is a matter of fact. If you know

with certainty what is going to happen to the man,

why can you not take that into account?

MR ROBERTS-SMITH: Well, in our respectful submission, in

the context of the sort of proposition that is

being enunciated here, that in effect would seek to

make the courts the tool of the executive. What is

sought to be achieved -

DAWSON J:  I am sure, it is just the court looking at

realities.

MR ROBERTS-SMITH: Well what is sought to be achieved, with

respect, is a particular result, on the exercise of

a judicial discretion, that result being

predetermined by executive policy. In our

submisston, that has to be fundamentally

inappropriate and that sort of concern appears very

clearly from Binder's case, (1989) CCA (Vic), and

again I will not take Your Honours to that now, but

it was very much that consideration which was in

the minds of Their Honours in that case.

Indeed Mr Justice Nathan in that case did not

disagree with the analysis of the majority,

although His Honour came to a different conclusion

in much the same way as we would say the

Court of Criminal Appeal in this State has from

time to time, having regard to precisely the sort

of considerations which my learned friend relies

upon here. Mr Justice Nathan, for example, at

page 573, said that while he came to a different

result, he agreed with His Honour Mr Justice Marks

on the facts and the law:

that a court should not regard as relevant the
possible effect of executive policy on the

extent to which the sentence imposed is

Shrestha 48MR ROBERTS-SMITH QC 24/10/90

actually served, or that the offenders may ultimately, but not certainly, be deported.

But we do, with respect, adopt that sentiment, both

as expressed by His Honour Justice Nathan and the

majority in that case.

It has long been accepted that the policy of

the Parole Board itself, for example, is not a
relevant consideration, when a court is considering

whether or not to order eligibility for parole and
we have relied upon Bruce's case, (1971) VR, in

support of that proposition. In a similar way, in

Swain's case and in Archibald's case, again both of

which are on our list of authorities, it was

recognized that it was wrong for a sentencing judge

to fix a head sentence which was calculated to

result in the offender being actually imprisoned

for the time which the court considered

appropriate, that calculation being done by taking

into account remissions. The principle there was

that the court had to simply set whatever head

sentence was thought to be appropriate, having
regard to the ordinary considerations of

sentencing, but not look at the policy of the

board, which was a separate matter altogether. We

would say, with respect, that the principle is the

same.

Likewise, in Jackson's case itself, which is

perhaps the most recent one - number 13 on our list

of authorities and it has already been referred

to - His Honour the Chief Justice, with whom Justices Wallace and Pidgeon agreed, said at

page 6:

It would be a matter for the authorities to

determine whether or not he would be permitted

to stay in this country in order to complete
the period of service or part of his term of imprisonment in the community. It would not

be altogether appropriate for that to be

necessarily frustrated, although there may be

considerations for the immigration authorities

beyond those which would be considered

appropriate by the court.

So one is concerned again with the blurring of

responsibility between the executive responsibility

for policy decisions in relation to illegal

immigrants or, indeed, not even necessarily illegal

immigrants, but people liable to be deported, and

proper sentencing considerations and, as has already
been observed, an order certainly in relation to

State offenders under section 37A of the Offenders

Probation and Parole Act only makes the prisoner

eligible for parole.

Shrestha 49 MR ROBERTS-SMITH QC 24/10/90

In light of the Commonwealth legislation, with

which this Court is concerned, that is pre-July, it

seems that it probably does not have any real

practical effect at all, other than to the extent

that it is, in that respect, the policy of the

Commonwealth Government to have regard to such a

period if set, and to seek the advice of the parole

board, and then make a recommendation to the

Governor-General, but there is no obligation to do

that if an offender is going to be released on the

recommendation of the federal executive, on

licence, for deportation.

TOOHEY J: But those considerations would be more important

if the applicant had not departed from the grounds

of appeal.

MR ROBERTS-SMITH: Yes. That is true.

TOOHEY J:  Do they really had much to do with the argument

as it finally emerged?

MR ROBERTS-SMITH: Well, they do, to the extent that

Your Honour Justice Dawson said earlier, that those

considerations probably do ultimately come back to

the question of liability for deportation. That is

really, perhaps, we would submit, at the bottom of

it, in any event.

DAWSON J:	And in that situation you just spoke of, in fact, the parole board does not ever release the
person on parole, even though eligibility has been
fixed.  The Commonwealth just comes in with its
licence, because it can release on licence at any
time.
MR ROBERTS-SMITH:	Yes.
DAWSON J:	So that, in fact, the parole period does not operate inappropriately in a sense there because he
is never released on parole.

MR ROBERTS-SMITH: That is so.

DAWSON J: Yes.
MR ROBERTS-SMITH:	So it is another area of executive

discretion. These problems were, in fact

recognized by both the Commonwealth and State

legislatures and it was these difficulties which,

in our submission, clearly resulted in the

enactment of legislation designed to deal with

deportation again, which perhaps supports the
proposition that, notwithstanding the shift in the

way the appeal has been conducted today, or the

arguments being conducted today, deportation still

really is at the bottom of it all. I would refer

Shrestha 50 MR ROBERTS-SMITH QC 24/10/90

Your Honours, pursuant to section 19 of the

Interpretation Act, to the honourable the

minister's second reading speech on the Prisoners

(Release for Deportation) bill, which is in the

materials provided to Your Honours, and to the

terms of that Act, itself, which is number 16 on

the list of authorities, which was clearly enacted,

if one has regard to section 5, specifically

enacted for the purpose of facilitating deportation

of a prisoner who was liable to that.

TOOHEY J: But it is an odd situation - I do not want to get

back unduly into the relationship of State and

Commonwealth legislation - but the State Act was

invoked for the purpose of a declaration as to

eligibility, or no declaration as to eligibility.

If a declaration is made, then the State Act

contemplates that at the end of a period of time,

that person is eligible for parole. In fact, it

may be important to look at the language of

subsection (2):

the convicted person is eligible to be

released from prison on parole.

But in the case of a Commonwealth offender, that part of section 37A apparently means nothing.

MR ROBERTS-SMITH:  Yes, simply because, by executive policy,

the Federal Government chooses to make it so.

TOOHEY J: Well, that is one way of putting it, perhaps.

The other way, I suppose, was the way it was put to

us; that there are no mechanisms available by which

that person can be released if he is a Commonwealth

offender.

MR ROBERTS-SMITH: Quite so, Your Honour, but perhaps the

other point to be made about that is that the

federal executive, by virtue of section 19A of the

Crimes Act as it was, had the power to negative, if one might use that word, the whole effect of the

sentencing at any time, any way, by ordering the

prisoner's release on licence, at any stage. It is

simply a policy decision - - -

TOOHEY J: Yes, I appreciate that. It is just an awkward

area in which State and federal legislation are not

entirely in harmony.

MR ROBERTS-SMITH:  No. In terms of the mechanics that is

correct, although that has now, probably been

overcome by the amendments to the Crimes Act, which

have been in operation since July, and the

requirement in there now that was specifically for

a sentencing judge to fix a non-parole period for

Shrestha 51 MR ROBERTS-SMITH QC 24/10/90

federal offenders under the Crimes Act, rather than

under the State legislation.

TOOHEY J: Thank you.

MR ROBERTS-SMITH:  But section 4 of the Prisoners (Release

for Deportation) Act 1989 (WA) makes the position,

in our submission, quite clear. If one has regard

then to the second reading speech of the honourable

the minister, it is perhaps also useful by way of

background because the honourable the minister

there has also set out some of the mechanics which
applied, certainly to that point, and one could see

how it actually worked in practise. But, without reading to Your Honours now what is there, it is, in our submission, quite clear that the governments

recognized that there were other factors -

certainly the State government recognized that

there were other factors which favoured the release
of prisoners for deportation after completion of

their intended custodial terms. That was the whole

foundation to this piece of legislation, according

to the minister.

TOOHEY J: Well, even that gives rise to some problems,

which fortunately we do not have to answer, but,

what happens if an order is made for deportation on

a particular date, made pursuant to the provision
of the Migration Act and the Governor, in exercise
of the power under the Prisoners (Release for

Deportation) Act fixes a period for release, which

is subsequent to the date contemplated by the

deportation order?

MR ROBERTS-SMITH: Well, presumably the prisoner would be

deported at whatever other date he was actually
released, but one would suspect that the mechanics

of it would be arranged so that that sort of

eventuality did not eventuate.

TOOHEY J: Well, I was really thinking of inconsistency of

legislation, rather than the mechanics of it.

MR ROBERTS-SMITH: Well, section 5, as Your Honours can

see - - -

TOOHEY J: Perhaps I should urge you not to try to deal with

that point, Mr Roberts-Smith.

MR ROBERTS-SMITH:  Yes. I would be easily persuaded,

Your Honour, but suffice, perhaps, simply to say

that section 5 covers the situation, where, for

example, a deportation is made then an order is

made under this Act, and the deportation order,

perhaps because it has been appealed, is

subsequently revoked, and the position is covered

by section 5. It is also in the second reading

Shrestha 52 MR ROBERTS-SMITH QC 24/10/90

speech of the minister, at page 2873 of the

assembly debate, that one sees the other reasons,

or some of the other reasons, referred to by the

minister for granting eligibility for parole to

people in this situation. The minister says - and

I am referring to the penultimate paragraph:

These include more effective management of

prisoners resulting from the incentive for

good behaviour and, of course, the savings in

not having to maintain such prisoners for the
whole of their sentences, which had not been

the intention of the sentencing court -

and so on. One perhaps might think that

section 19AK of the Crimes Act to which the

applicant has already made reference, is intended

to be complementary legislation to the Prisoners

(Release for Deportation) Act (WA). That

specifically again provides that possible

deportation is no impediment to the making of an
order for parole. So, if our contention is correct
that underlying my learned friend's reliance upon
the enumerated factors is the prospect at the end
of the day of deportation, then, in our submission,
the answer to that contention is very clearly

apparent, firstly from the terms of the legislation

itself, both federal and State, and secondly from

the memorandum referred to and the second reading speech of the minister in this State. My learned junior has done the arithmetic, Your Honour.

TOOHEY J: Thank you.

MR ROBERTS-SMITH:  Nine years imprisonment with parole

means 4 years in custody plus 2 years on parole.

TOOHEY J: Well, plus eligibility at the end of the period

of 4 years.

MR ROBERTS-SMITH:  Yes, that is, with respect, quite right.

Without parole it would, of course, be 6 years in custody, 12 years imprisonment, with eligibility

for parole, 6 years in custody, if parole is

granted and then 2 years on parole. Without an order for eligibility, then 8 years in custody.

TOOHEY J: Thank you.

BRENNAN J:  How much longer do you expect the remainder of

your -

MR ROBERTS-SMITH:  I am finished, if Your Honours please.

We simply say that if special leave is granted, then, in our submission, the approach taken by the

Court of Criminal Appeal is consistent with authority, both here and elsewhere, and the terms

Shrestha 53 MR ROBERTS-SMITH QC 24/10/90

of the Offenders Probation and Parole Act, and it

clearly, with respect, has not been shown to have

not had regard to appropriate considerations under

the terms of that section. We would ask that if

special leave is granted, none the less the appeal been dismissed and the applicant be ordered to pay the respondent's costs. If Your Honours please.

BRENNAN J: Thank you, Mr Roberts-Smith. Mr Weinberg?

MR WEINBERG:  No matters in reply.

BRENNAN J:  Mr Weinberg, there is one question I would like to ask you. Why is it that the old section 19A

would apply to this man at the time when his

present non-parole period would arise for

consideration?

MR WEINBERG:  Your Honour, when I said that, it was not a

considered response. I think it would be because

the new legislation, which came into force on

17 July, the amendments to the Crimes Act, are

intended to apply to persons who are sentenced

after that date. It would be submitted that, as

part of the sentencing regime under which this

respondent was dealt with prior to that date, all

incidental powers, as it were, including the power

to deal with him by releasing him on licence based

upon eligibility for parole having been determined

earlier under the old legislation would apply, but

it is not a considered response, Your Honour.

BRENNAN J:  If section 19A be regarded simply as a power

conferred upon the Governor-General to issue a

licence so that there is no longer a power so to

do, is there any corresponding power under the new

regime?

MR WEINBERG:  I would have to take that under advisement and

look at the legislation closely. I will endeavour

to do that and supply the Court with a written

answer to that question. I simply cannot point

Your Honour to the existence of any equivalent

power at this moment.

BRENNAN J: 

Can you do so, and Mr Roberts-Smith could be at

liberty to make any further submissions on the same
subject.

McHUGH J:  Can I ask you one question, Mr Weinberg. As I

understand your argument, you deny any relevance of

the liability to be deported in your argument.

MR WEINBERG:  Your Honour, what we say is - and it is easy

to conflate the points - of course, that mere

liability to be deported is not of itself, never

has been, a bar to the granting of eligibility for

Shrestha 54 24/10/90

parole because there are many persons who are

liable to be deported, including those with ties to

this community.

McHUGH J: Having regard to the way you put your argument,

is that not the criteria which is impliedly invoked

by you? Supposing the Commonwealth had no
immigration policy at all, and that they had no

policy of deporting people, could you then argue

that a trial judge could not make an order for

eligibility for parole?

MR WEINBERG:  Your Honour, the argument would still be valid

in our submission, because you would be looking to

the antecedents of the person in question. You

would be asking what interests this community has

in relation to a person who himself has manifested

no intention of staying here in respect - - -

McHUGH J: Well, that is the question, but the trial judge

took the view that maybe he would not want to stay

here when he was released on parole, or when his

term of imprisonment had expired.

MR WEINBERG:  Everything in the plea in relation to this

matter was asking for as short a sentence as

possible because of his ties back in Nepal and his

desire to go back and deal with that situation as

quickly as possible.

McHUGH J: Yes, I know, but you were seeking to argue a

point of general principle.

MR WEINBERG:  Yes, we are, and what we say is that in most

of these cases, if not all of them, there would be

no manifestation of intent on the part of the

person to stay here. If there were, it is a

strange kind of judicial response to such a

manifestation of intent to permit the person to

stay here and thereby become, as it were, an

illegal entrant with permanent resident's rights in

Australia, something that the person would never

have got in the first place, by way of mitigation

of a penalty.

effect, a person were permitted to become a It would be an odd result if, in

resident of this country in that way.

So, we do not rely, in our submission, upon

any prediction, as such, that the person is certain to be deported. We stated that as a fact in answer

to the question that was put. What we rely upon is

the wording of the section which says that if the

antecedents of the person, and other matters set

out, make it clear that it is inappropriate, having

regard, we say, to the nature and purpose of the exercise which is parole, which has a particular connotation, if it is inappropriate in those

Shrestha 55 24/10/90

circumstances for a judge to order eligibility, he

should not do so. The fundamental test is - - -

McHUGH J:  The Western Australian statute does not say that

though.

MR WEINBERG:  It says that the judge shall order eligibility

if it is appropriate to do so.

MCHUGH J:  Yes.

MR WEINBERG:  Yes. We say, it cannot be appropriate to do

so in the case of this respondent because he is not

a suitable person for parole, by reason of his

antecedents, and could never be, and none of the

other factors could ever change that position. If

one starts with the proposition - one does not

start with the criteria, one starts with asking

what those criteria go to; they go to the question

of parole, and one starts with the question, "What

is parole, what is it for, what is its nature and

what is its purpose?", and when one answers that

question, one then applies the relevant criteria in

the light of that formulation.

BRENNAN J:  Mr Weinberg: In your written response you might

also be, in the meantime, to discover the

corresponding Tasmanian provision.

MR WEINBERG:  We will do that, Your Honour. We were very

uncomfortable about having left Tasmania out of the

equation. We will endeavour to answer that as

well, if the Court pleases.

BRENNAN J:  The Court will consider its judgment in this

matter.

AT 4.29 PM THE MATTER WAS ADJOURNED SINE DIE

Shrestha 56 24/10/90