The Queen v Calica

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.