| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0188 |
| NIAHANA TUARAE | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | KENNEDY JA and KIDD AJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28 November 2023 |
| DATE OF JUDGMENT: | 7 December 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 303 |
| JUDGMENT APPEALED FROM: | Director of Public Prosecutions v Tuarae [2023] VCC 1645 (Judge Parrish) |
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CRIMINAL LAW — Application for leave to appeal — Sentence — Armed robbery committed in company — Related charges of theft of motor vehicle and dishonestly receiving stolen goods — Applicant on bail at the time of the offending — Total effective sentence of 12 months’ imprisonment and a community correction order of 18 months — Whether sentence manifestly excessive — No challenge to sentencing judge’s characterisation of the armed robbery as ‘mid-range’ — Powerful factors relied upon in mitigation reduced, but did not eliminate, the need for deterrence, denunciation, and community protection — Sentences within range — Leave to appeal refused.
CRIMINAL LAW — Application for leave to appeal — Sentence — Specific error — Whether sentencing judge erred in the assessment of the applicant’s prospects of deportation — Whether sentencing judge misapprehended the effect of Migration Act 1958 (Cth) s 501 — Sentencing judge alive to the applicable principles — No error — Leave to appeal refused.
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| Counsel | |||
| Applicant: | Mr T McCulloch | ||
| Respondent: | Mr G Buchhorn | ||
Solicitors | |||
| Applicant: | Fitzroy Legal Service | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
KENNEDY JA
KIDD AJA:
The applicant, now aged 20 years, pleaded guilty to the offences set out in the table below.
On 12 May, 29 June and 1 September 2023 the matter proceeded by way of plea. The applicant was sentenced on 14 September 2023 as follows:
| Charge on Indictment | Offence | Max Penalty | Sentence | Cumulation |
| 1 | Theft of motor vehicle[1] | 10 years | 1 month | - |
| 2 | Theft of motor vehicle | 10 years | 1 month | - |
| 3 | Armed robbery[2] | 25 years | 12 months and 18-month CCO | Base |
| 4 | Dishonestly receive stolen goods[3] | 15 years | 1 month | - |
| Related Summary Offences | ||||
| 17 | Contravene condition of bail[4] | 3 months | Fined $250 | - |
| 18 | Commit indictable offence whilst on bail[5] | 3 months | Fined $400 | - |
| Total Effective Sentence: | 12 months’ imprisonment and 18-month community correction order, fined $650.00 | |||
| Pre-sentence Detention Declared: | 338 days | |||
| Section 6AAA Statement: | 18 months’ imprisonment | |||
| Other Relevant Orders: Disposal order; and pursuant to s 89(4) of the Sentencing Act 1991, licence is cancelled and applicant disqualified from obtaining licence for three months. | ||||
[1]Crimes Act 1958, s 74.
[2]Crimes Act 1958, s 75A.
[3]Crimes Act 1958, s 88.
[4]Bail Act 1977, s 30A(1).
[5]Bail Act 1977, s 30B.
The applicant seeks leave to appeal against sentence on the following grounds:
Ground 1The individual sentences imposed on charges 1, 2, 3 & 4 are manifestly excessive.
Ground 2The sentencing judge erred in relation to the assessment of the applicant’s prospects of deportation and the weight to be given…
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- AGLC
- Tuarae v The King [2023] VSCA 303
- Case
- [2023] VSCA 303
- Decision Date
CaseChat Overview and Summary
The primary legal issues were whether the sentence was manifestly excessive and if there was an error in the sentencing judge’s assessment of the applicant’s deportation prospects. Tuarae argued that the sentencing judge misunderstood the Migration Act 1958 (Cth) and, as a result, did not appropriately weigh the risk of deportation in the sentencing process. The Court had to determine if these concerns provided a sufficient basis for leave to appeal.
The Court examined the sentencing judge’s remarks and found no error in the understanding or application of the Migration Act. The judge was aware that a sentence of 12 months would trigger mandatory visa cancellation, leading to a real prospect of deportation. The Court held that the judge's statements reflected this understanding and did not misapprehend the operation of the Act. The Court further concluded that the sentences imposed were within the appropriate range, and the mitigating factors, while significant, did not eliminate the need for deterrence, denunciation, and community protection.
Accordingly, the Court refused Tuarae leave to appeal against his sentence.
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
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Ratio Decidendi
Legal Principle Established
Later in his sentencing remarks, when summarising the arguments of counsel for the prosecution at the plea before him, the judge said:Noting that you are not an Australian citizen, the prosecution accepts that if you were to receive a term of imprisonment greater than 12 months, the Migration Act (Cth) provides that the minister may cancel your visa and accepts the prospect of deportation can impact on you in the ways which have already been described in these Reasons.[34][34]Reasons, [68(d)]. As for the operation of the relevant provisions under the Migration Act, it is our understanding that: (a)Section 501(3A) of the Migration Act requires the minister to cancel a person’s visa when they have a ‘substantial criminal record’. (b)A person has a ‘substantial criminal record’ if they have been sentenced to a term of imprisonment of 12 months or more.[35] (c)This means that if an offender is sentenced to a term of imprisonment of 12 months, sub-ss 501(3A)(a)(i) and (7)(c) are engaged, rendering the offender’s visa liable to mandatory cancellation.[36] (d)The Minister retains a discretion to revoke any decision made under s 501(3A) to cancel a visa.[37][35]Migration Act 1958 (Cth) s 501(7)(c).[36]Konamala v The Queen [2016] VSCA 48, [29] (Maxwell P, Redlich and Priest JJA). [37]Migration Act 1958 (Cth) s 501CA; Konamala v The Queen [2016] VSCA 48, [30] (Maxwell P, Redlich and Priest JJA). It follows that, as the applicant was sentenced to a term of imprisonment of 12 months, sub-ss 501(3A)(a)(i) and (7)(c) are engaged, rendering the applicant’s visa liable to mandatory cancellation. It is within this context, that the applicant fastens upon the judge’s statements that: (a)There is a real prospect that the applicant would be deported if sentenced to ‘more than 12 months in prison’.[38](b)If the applicant were to receive a term of imprisonment ‘greater than 12 months’, the Migration Act provides that the Minister may cancel the applicant’s visa.[39][38]Reasons, [40(e)]. [39]Reasons, [68(d)]. The applicant says these statements betray a misunderstanding on the judge’s part that the mandatory cancellation provision in s 501(3A) would only be triggered if a term of more than 12 months’ imprisonment was imposed (as opposed to being triggered by a term of imprisonment of 12 months). As a consequence of this misapprehension, his Honour failed, so the argument goes, to give the real prospect of deportation appropriate weight in the sentencing exercise. In support of the argument that this misapprehension caused the sentencing judge to undervalue the risk of deportation, reliance is placed by the applicant upon the passage from Loftus v The Queen:[40]In assessing, for the purposes of sentencing, the chance of deportation, it will be relevant to consider whether the sentence imposed would trigger a discretion, or alternatively a duty, to cancel the visa held by the offender.[41][40][2019] VSCA 24.[41]Loftus v The Queen [2019] VSCA 24, [80] (Whelan AP and Niall JA).