Russell v The Queen

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.