Russell v The Queen

Case [2022] NTCCA 6

CITATION:Russell v The Queen [2022] NTCCA 6

PARTIES:  RUSSELL, Francis

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction

FILE NO:CA 23 of 2020 (21936799)

DELIVERED ON:  16 March 2022

HEARING DATE:  21 February 2022

JUDGMENT OF:  Grant CJ, Blokland and Brownhill JJ

CATCHWORDS:

SENTENCING – Mitigating factors – Consequences under Migration Act 1958 (Cth)

SENTENCING – Subjective considerations on sentence – Deportation

Applicant found guilty of drug offences – Applicant given notice of cancellation of visa – Applicant subject to deportation on release from prison – Matter not considered in sentencing proceedings – Subsequent decision altered prevailing understanding of the relevance of deportation in sentencing proceedings – Evidence established applicant would suffer hardship as result of deportation – Matters properly taken into account in mitigation of sentence – Appeal allowed and applicant resentenced. 

Misuse of Drugs Act 1990 (NT), s 34

Adams v The Queen (2008) 234 CLR 143, Barbi v The Queen [2019] NTCCA 19, Edmonds v The Queen [2019] NTCCA 1, Fillipou v The Queen (2015) 89 ALJR 776, Lambert v R [2015] NSWCCA 22, Quah v The Queen [2021] VSCA 164, R v Abbott(1984) 17 A Crim R 355, R v McKenna (unreported, NSWCCA, 16 October 1992), The Queen v Calica [2021] NTSCFC 2, The Queen v Cumberland [2019] NTCCA 14, The Queen v Meginess [2019] NTCCA 5, referred to.

REPRESENTATION:

Counsel:

Applicant:M Thomas

Respondent:  N Papas QC, Acting Director of Public Prosecutions, with D Castor

Solicitors:

Applicant:Territory Criminal Lawyers

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Number of pages:  17

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Russell v The Queen [2022] NTCCA 6

No. CA 23 of 2020 (21936799)

BETWEEN:

FRANCIS RUSSELL

Applicant

AND:

THE QUEEN

Respondent

CORAM:    GRANT CJ, BLOKLAND & BROWNHILL JJ

REASONS FOR DECISION

(Delivered 16 March 2022)

THE COURT:

  1. At the hearing of this appeal on 21 February 2022 the Court made the following orders with the concurrence of the parties:

    1.    The application for an extension of time is allowed.

    2.    The application for leave to appeal is allowed.

    3.    The appeal is allowed on Ground 5.

    4.    The sentence imposed on 1 May 2020 is set aside.

    5.    The offender is sentenced to an aggregate period of imprisonment for five years backdated to 3 October 2019.

    6.    That sentence to imprisonment is suspended after the offender has served two years and six months.

    7. An operational period of two years and six months from the date of the offender’s release is fixed for the purposes of ss 40(6) and 43 of the Sentencing Act 1995 (NT).

    8.    The order for forfeiture remains undisturbed.

    9.    The offender is convicted of the offence charged by complaint taken on 4 October 2019 and discharged without further penalty subject to the requirement to pay…

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Russell v The Queen [2022] NTCCA 6
Case
[2022] NTCCA 6
Decision Date

CaseChat Overview and Summary

In *Russell v The Queen*, the applicant pleaded guilty to drug offences, including possessing a trafficable quantity of cocaine and supplying a commercial quantity of cocaine. The applicant was sentenced to five years and six months imprisonment, with a non-parole period of three years and 11 months. Following his conviction, the applicant was notified that his visa would be cancelled and he would be subject to deportation upon release from prison. The applicant sought leave to appeal his sentence.

The central legal issue before the Court of Criminal Appeal was whether the prospect of deportation, and the hardship it would cause the applicant, constituted a mitigating factor that should have been considered in sentencing. This question arose in light of a recent decision, *The Queen v Calica*, which clarified the circumstances in which deportation could be taken into account in mitigation of sentence.

The Court reasoned that, following *Calica*, the prospect of hardship suffered as a result of deportation, and the loss of the opportunity to settle permanently in Australia, may be considered in mitigation of sentence, provided such hardship is established by evidence. The Court emphasised that the sentencing court should not be required to speculate about the prospect or impact of deportation. Instead, the likelihood of deportation and the resulting hardship must be assessed on the evidence presented, on the balance of probabilities. The onus rests on the defendant to demonstrate that deportation would likely occur and would make imprisonment more onerous, amounting to extra-curial punishment.

The Court allowed the appeal, finding that the applicant had established on the balance of probabilities that he would suffer hardship as a result of deportation. Consequently, the applicant was resentenced.

Orders

Orders of the court

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Background

Background to the litigation

These are those Reasons.Background and procedural history On 9 April 2020, the applicant pleaded guilty to possessing a trafficable quantity of cocaine, supplying a commercial quantity of cocaine and possessing an anabolic steroid. The agreed facts may be summarised as follows. On 17 September 2019, police executed a search warrant on the applicant’s residence and seized five clip seal bags containing a total of 3.58 grams of cocaine. The offender was arrested, charged with possessing a trafficable quantity of cocaine and granted bail on that same day. From the time of his release on bail until 3 October 2019, police conducted covert surveillance of the applicant and his residence. That surveillance disclosed the applicant’s continuing involvement in the supply of dangerous drugs. On 3 October 2019, police executed a further search warrant on the applicant’s residence and vehicle, and seized digital scales, clip seal bags, $27,900 in cash, multiple mobile telephones and a canister of tablets containing steroids. The applicant subsequently admitted to supplying in excess of a commercial quantity of cocaine between 18 September and 3 October 2019; and that the cash in the amount of $27,900 came from sales of cocaine to people in the Darwin community in quarter ounce (seven gram) lots for $3000 per lot. The applicant was arrested and charged with supplying a commercial quantity of cocaine. On 1 May 2020, the Supreme Court sentenced the applicant to imprisonment for five years and six months, backdated to 3 October 2019, for possessing a trafficable quantity of cocaine on 17 September 2019 and supplying a commercial quantity of cocaine between 18 September and 3 October 2019. The offence of supplying a commercial quantity of cocaine was subject to a minimum non-parole period of not less than 70 percent of the period of imprisonment, and the Court fixed a non-parole period of three years and 11 months. On 22 December 2020, the applicant filed an application for an extension of time within which to make application for leave to appeal and an application for leave to appeal. After the application for an extension of time was refused by a single judge, he applied to have his application(s) determined by the Court of Criminal Appeal.[1] The appeal was originally listed to be heard on 11 June 2021. However, on 26 May 2021 the Full Court of the Supreme Court delivered its reasons in The Queen v Calica.[2] By that decision, the Full Court relevantly held:(a)Subject to the facts being established by evidence, the prospect of hardship suffered as a result of deportation, and loss of the opportunity to settle permanently in Australia may, in appropriate circumstances, be taken into account in mitigation of sentence. (b)The sentencing court cannot be asked to speculate about that prospect or as to the impact of deportation on the offender. The likelihood of the applicant being deported from Australia must be assessable on the evidence put before the court, rather than merely speculative. If defence counsel on a plea in mitigation can say no more than that a term of imprisonment of more than 12 months would enliven the power of the Minister to deport the offender, then deportation is properly viewed as a completely speculative possibility which should not be taken into account. The onus is on the defendant to establish on the balance of probabilities the likelihood of deportation, and to establish that deportation in his or her case would in fact be a hardship likely to make imprisonment more onerous, and such as to amount to extra-curial punishment.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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