SENTENCING – Relevant factors on sentence – Establishing relevant matters
SENTENCING – Subjective considerations on sentence – Deportation
Sentencing may not take into account the prospect of an administrative order for deportation arising from the offending in order to craft a sentence designed to avoid the prospect of deportation – The prospect of deportation is not generally a relevant consideration in determining whether or not to fix a non-parole period –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 – The sentencing court cannot be asked to speculate about that prospect or as to the impact of deportation on the offender – The same principles concerning liability to deportation have application to the cancellation of the approval of citizenship.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
The Queen v Calica [2021] NTSCFC 2
Case
[2021] NTSCFC 2
Decision Date
CaseChat Overview and Summary
The case of *The Queen v Calica* involved a sentencing determination by the Full Court of the Supreme Court of Western Australia, comprising Grant CJ, Southwood, Kelly, Blokland, and Barr JJ. The central dispute concerned the extent to which the prospect of deportation under the *Migration Act 1958* (Cth) could be considered as a mitigating factor in sentencing.
The legal issues before the court revolved around whether the potential consequences of deportation, including hardship and the loss of an opportunity for permanent settlement in Australia, were relevant considerations for a sentencing judge. Specifically, the court had to determine if a sentencing court could take into account the prospect of deportation when deciding whether to fix a non-parole period, or if such considerations were solely within the purview of the parole authority. The court also considered the application of these principles to the cancellation of citizenship approval.
The court's reasoning, drawing on the High Court's decision in *The Queen v Shrestha*, established that while a sentencing court cannot be asked to speculate on the likelihood or impact of deportation, the prospect of hardship and loss of opportunity due to deportation may, in appropriate circumstances and if established by evidence, be taken into account in mitigation of sentence. The court affirmed that all relevant sentencing considerations, including antecedents, criminality, punishment, and deterrence, apply to both the decision on parole eligibility and the subsequent decision by the parole authority. The majority in *Shrestha* had emphasised the benefits of a non-parole period, such as incentivising good behaviour and retaining the prisoner's self-respect, and the importance of allowing parole authorities to exercise compassion. The court rejected the notion that Australia had no interest in the rehabilitation of foreign offenders, recognising both an interest in the well-being of all within its prisons and moral and treaty obligations to treat all individuals humanely and without discrimination.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The discretion given to the Court thereafter became one of declaring eligibility for parole in a general sense, rather than fixing a non-parole period, and the limitations on the matters the Court could take into account in determining whether to exercise the discretion, which had formed the basis of the reasoning in the earlier cases, had all but disappeared. The decision of the High Court in The Queen v Shrestha The issue considered in the non-parole cases came before the High Court in 1991 in The Queen v Shrestha,[45] shortly after the amendments to the Western Australian legislation referred to immediately above. Shrestha was a foreign national who was convicted in Western Australia of three offences relating to the importation of heroin and sentenced to a total of 12 years’ imprisonment. The sentencing judge declined to order that he be eligible for parole, saying:[T]he facts of your case, your personal circumstances and the fact of your immigration status in my view prevent me in this case from making you eligible for parole.[46] Shrestha was given leave to appeal against the severity of his sentence, including the refusal to order that he be eligible for parole. The Court of Criminal Appeal allowed the appeal, reduced his sentence to nine years and ordered that he be eligible for parole. The Crown was granted special leave to appeal to the High Court against the order that the appellant be eligible for parole. Considering this question in light of the broader legislative provision, the majority in Shrestha (Deane, Dawson and Toohey JJ) said:All of the considerations which are relevant to the sentencing process, including antecedents, criminality, punishment and deterrence, are relevant both at the stage when a sentencing judge is considering whether it is appropriate or inappropriate that the convicted person be eligible for parole at a future time and at the subsequent stage when the parole authority is considering whether the prisoner should actually be released on parole at or after that time.[47] The majority went on to consider the benefits of fixing a non-parole period, which are not limited to giving the convicted person a period of conditional liberty in the community under supervision. They include providing an incentive to good behaviour while in prison in order to earn parole, and the fact that the retention by a prisoner of some control over his or her future fortunes is conducive to retaining self-respect and to eventual rehabilitation. The majority also emphasized the importance of ensuring that the parole authorities were given the ability to exercise compassion where appropriate, for example if the convicted person became terminally ill. The majority rejected the contention that Australia has no interest in providing a regime intended to assist the rehabilitation of a foreign offender with no ties to the country, and held that Australia has:(a)an interest in the well-being and rehabilitation of all people within its prisons; and (b)moral and treaty obligations to treat all who are subject to criminal proceedings in this country humanely and without discrimination.