Tuarae v The King
[2023] VSCA 303
•7 December 2023
| 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 to it.
The applicant filed her appeal seven days out of time. The Application for Extension of Time was administratively granted on 20 November 2023. We proceed upon this footing.
Circumstances of the offending
Between 11:15 pm on 20 April 2022 and 6:15 am on 21 April 2022, the applicant and unknown others attended a residence in Caulfield North and entered the home. The victim was in the home, sleeping at that time.
The group stole the keys to the victim’s white Subaru Impreza (‘the stolen Subaru Impreza) from a bowl by the front door. They then proceeded to steal her vehicle which was parked out on the street. The applicant was a passenger in the vehicle and complicit in the offending (charge 1).
On 23 April 2022 at 4:15 am, the applicant attended a second victim’s address in Preston, and stole her black Honda CRV parked in the driveway of the residence. This victim believed the spare keys may have been stolen from inside her Lexus. Police were unable to ascertain how the vehicle was stolen, as she retained her primary set of keys.
Cell tower mapping showed the applicant’s mobile phone in the Preston and Thornbury areas between 4:01 am and 4:25 am on 23 April 2022. CCTV also depicted the applicant as a passenger in the stolen vehicle. This theft charge was put on the basis that the applicant was a passenger in the vehicle and complicit in the offending (charge 2).
On 24 April 2022 at 6:20 am, two unknown co-offenders attended Chemist Warehouse, Campbellfield, in the stolen Subaru Impreza. They stole 197 bottles of perfume. It was not alleged that the applicant participated in the robbery of Chemist Warehouse.
Forensic analysis of the applicant’s phone showed that between 29 and 30 April 2022, she sought to sell the perfume, sending photos and price lists to contacts via SMS and Facebook messenger (charge 4).
On 24 April 2022 at 6:58 am, the applicant and two unknown co-offenders attended the Ampol Service Station, situated in Mickleham Road, Westmeadows, in the stolen Subaru Impreza.
The co-offenders entered the store, whilst the applicant stood outside the front of the store at the entrance door. The co-offenders proceeded to approach and threaten the store attendant victim with a crowbar and sledgehammer (charge 3). They screamed at the store attendant victim to open the door, before one climbed through the wire barrier, over the counter and demanded she open the cash register. The store attendant froze in shock and said she did not know the password to the register.
The co-offender who jumped the counter, grabbed two tills containing approximately $500 in cash; 228 packets of cigarettes; 79 cigarette lighters; approximately ten disposable mobile phones; and the store attendant’s Samsung mobile phone. He was assisted by the other co-offender.
In the meantime, the applicant kept watch outside the entrance, holding the sliding doors open. She then entered the store and assisted the co-offenders moving the stolen goods into the stolen Subaru Impreza. The applicant and co-offenders got into the vehicle and fled the scene, travelling north on Mickleham Road. Cell tower mapping placed the applicant’s mobile phone in the vicinity at the relevant time.
The tills were discarded in Edwardes Lake, Reservoir. At approximately 9:10 am, the stolen Subaru Impreza was located ablaze adjacent to 73 Lake Street, Reservoir.
Arrest
On 12 May 2022 at 9:18 am, the applicant was arrested for an unrelated matter. The applicant’s Apple iPhone was seized and analysed. The applicant was subsequently interviewed by police and charged.
Prior and other relevant history
The applicant had one appearance in the Children’s Court on 14 December 2021 (containing relevant offences including armed robbery) for which a without conviction good behaviour bond was imposed (until 9 August 2022).
On 14 December 2021, the applicant also had charges in the adult jurisdiction (theft from shop and unlawful assault) adjourned to 9 August 2022.
The applicant had an appearance (in the adult jurisdiction) on 13 April 2022 for which a without conviction adjourned undertaking was imposed (until 12 April 2023). This concerned committing an indictable offence on bail, attempted theft from a motor vehicle and other dishonesty offences.
The applicant was also on bail at the time of the offending the subject of this application. On 11 March 2022 she was bailed to appear at the Heidelberg Magistrates’ Court on 14 July 2022 (Summary Charges 17 and 18).
Thus, it can be seen that when the applicant engaged in the offending the subject of this application (over 20 to 24 April 2022), she was the subject of a number of courts orders (including bail).
The plea hearing and sentencing remarks[6]
[6]DPP v Tuarae [2023] VCC 1645 (‘Reasons’).
The plea hearing focused upon the fact that armed robbery is a category 2 offence.[7] This had the consequence that s 5(2H) of the Sentencing Act 1991 required the judge to impose a custodial order[8] (not including a combination sentence with a community corrections order (‘CCO’)) unless one of the limited exceptions to that provision applied.
[7]Sentencing Act 1991, s 3.
[8]Sentencing Act 1991, pt 3 div 2.
Clinical psychologist, Alison Mynard, was called to give evidence. Ms Mynard concluded that symptoms of complex Post-Traumatic Stress Disorder and Borderline Personality Disorder were present in the applicant. She believed that the applicant had impaired mental functioning, regardless of her substance abuse. This was due to the applicant’s experiences of ‘quite severe trauma’.
Based upon the evidence of clinical psychologist, the judge concluded that the exception contained in s 5(2H)(c)(i) was engaged,[9] explaining:
I am satisfied, as a matter of probability, that at the time of the commission of the offending, you had impaired mental functioning that is causally linked to the commission of the offending and substantially and materially reduces your culpability.
Furthermore, I do not consider that s5(2H)(a) negates any such finding. As is made plain by the Court of Appeal decision of Dabaja (op cit), the question to be answered by the Court is whether the impaired mental functioning that has been identified was caused by self-induced intoxication. In the circumstances of this matter, although there was intoxication involved during the offending, as is made plain by your letter to the Court and other histories, I formed the view that the impaired mental functioning to which I have referred was not caused by self-induced intoxication.[10]
[9]However, the judge was not persuaded that the applicant’s circumstances satisfied the exception set out in s5(2H)(e) of the Sentencing Act 1991.
[10]Reasons, [83]–[84]
The judge proceeded to sentence the applicant under ordinary principles.
The judge characterised the offending involving the armed robbery as ‘mid-range’ in objective gravity; theft of a motor vehicle in the low to mid-range of objective gravity; and the receiving of stolen goods of ‘lower objective gravity’. It was accepted that the offending was to be considered in the context of ‘some limited previous offending’ involving theft and obtaining property by deception.[11]
[11]Reasons, [78]–[79].
In his sentencing remarks, the judge observed that the applicant had ‘some powerful mitigating factors’.
The judge referred to the applicant’s plea of guilty and gave additional utilitarian benefit for it given that it had been made at the end of the COVID pandemic. He accepted that the plea, coupled with a letter the applicant wrote to the Court, evidenced remorse and insight. The judge also gave some modest weight to the hardship which the applicant had experienced on remand over the last ten months or so due to the pandemic.
The judge placed emphasis upon the applicant’s youth at the time of the offending, concluding, in accordance with the relevant principles,[12] that youth should be a primary consideration in the applicant’s sentencing (over general deterrence).
[12]See R v Mills [1998] 4 VR 235. See also Azzopardi v The Queen (2011) 35 VR 43; [2011] VSC 372.
The judge took into account the application of the principles in Bugmy,[13] concluding that the applicant’s upbringing was ‘extremely dysfunctional’. He said:
… I do accept that your moral culpability is less than the culpability of an offender whose formative years had not been marred in this way. Also, based on the evidence of the psychologist, bearing in mind again your exposure to extreme violence and alcohol and drug abuse may explain your recourse to violence when frustrated such that your moral culpability for the inability to control that impulse may be substantially reduced.[14]
[13]Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
[14]Reasons, [80].
The sentencing judge also accepted that all the principles enunciated in Verdins[15] were enlivened having regard to the evidence from the psychologist. In particular, he concluded that the applicant’s moral culpability was reduced, and that the fifth and sixth principles of Verdins[16] were engaged.
[15]R v Verdins (2007) 16 VR 269; [2007] VSCA 102.
[16]R v Verdins (2007) 16 VR 269; [2007] VSCA 102.
It was accepted by the prosecution that if a relevant exception under s 5(2H) was engaged that a term of imprisonment combined with a CCO would be within range for such offending. While the defence sought a straight CCO, it was conceded that a combination sentence was within the range.
The judge also gave weight to the deportation risk which the applicant faced. His reasons in relation to this issue are addressed in greater detail below under ground 2.
The sentencing judge took into account the lesser role the applicant played in the offending in relation to the armed robbery and the thefts of the motor vehicles.
The judge concluded:
After a consideration of all of the evidence, and bearing in mind in particular your low moral culpability, and taking account of the various matters to which I have referred and in particular your youth, I consider that a combined sentence is appropriate.
In particular, a Community Correction Order can be crafted in such a way as to expose you to various therapeutic measures to assist you with drug and alcohol dependency and the various psychological issues from which you suffer. Sight must not be lost that you are only nineteen years of age now and have had what can only be described as a frightening and distressing childhood. [17]
[17]Reasons, [87]–[88].
Ground 1: The individual sentences imposed on charges 1, 2, 3 & 4 are manifestly excessive
It is convenient to first deal with the complaint made about the combination sentence (12 months imprisonment in combination with an 18-month CCO) imposed for the armed robbery (charge 3).
The primary submission made on the applicant’s behalf at the plea was that the applicant should be sentenced to a CCO (without an imprisonment component) in relation to the armed robbery (charge 3). Nevertheless, the applicant accepted at the plea hearing that it was open to the judge to impose ‘a combination sentence’ involving an imprisonment component followed by a CCO.[18]
[18]No youth justice disposition was sought.
While the applicant does not, before us, resile from this concession, she effectively attacks the length of the imprisonment component imposed (12 months) as being manifestly excessive, given the constellation of powerful mitigatory factors available to the applicant.
In our view, the argument that the armed robbery sentence is manifestly excessive is without merit.
The sentencing judge’s characterisation of the armed robbery as being ‘mid-range in objective gravity’ is not impugned.[19] His Honour’s assessment of its gravity was clearly correct:
(a)The store was a commercial target, which could be expected to yield a meaningful reward for the perpetrators.
(b)The offending represented an example of an armed robbery commonly committed on soft targets such as service stations. The store was targeted in the early hours of the morning when the vulnerable victim was isolated and without any security.
(c)The offending was committed in company with others.
(d)The offending involved some planning and pre-meditation. The offenders were all wearing clothes which obscured their identities, such as face masks, hooded jackets and gloves.
(e)Multiple menacing weapons (crowbar and sledgehammer) were used, clearly calculated to terrify the victim.
(f)The impact of the armed robbery on the victim would have been significant. Armed robberies are invariably terrifying experiences. In this case, despite not having prepared a victim impact statement, the victim said to police she was ‘frozen in shock’ when confronted by the offenders.
[19]Reasons, [78].
It may be accepted that the roles played by the applicant’s co-offenders in the execution of the armed robbery were more prominent than her own role. The applicant’s co‑offenders loudly and aggressively confronted the victim, with the weapons. It was conceded by the prosecution at the plea that the applicant was not the main offender.
Even so, the applicant’s role in this violent escapade was by no means minor:
(a)The applicant must have known about the nature and number of the weapons used (this was accepted at the plea hearing and presumably formed the basis of the applicant’s plea).
(b)She played an important role of acting as a ‘lookout’ and preventing the doors from closing which could have inhibited her co-offenders’ flight.
(c)She actively participated in moving a large amount of stolen cigarettes, disposable phones, cash and other items from within the store to the nearby getaway vehicle.
There was no doubt the applicant could call in aid some very strong factors in mitigation. These included:
(a)Her plea of guilty.
(b)Her youth.[20]
(c)The prospect of her deportation (see below).
(d)The application of the principles in Bugmy[21] and Verdins[22] (which ameliorated the sentence, including by way of a significant reduction in the applicant’s moral culpability).
[20]See R v Mills [1998] 4 VR 235. See also Azzopardi v The Queen (2011) 35 VR 43; [2011] VSCA 372.
[21]Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
[22]R v Verdins (2007) 16 VR 269; [2007] VSCA 102.
But each of these factors was considered carefully by the sentencing judge as part of his sentencing task.[23] Apart from the question of the applicant’s deportation, there is no suggestion that his Honour made any error with respect to his treatment of these matters.
[23]Reasons, [80].
Further, although the applicant’s prior history and involvement with the courts was relatively ‘limited’, it was of some importance to this sentencing exercise:
(a)Charge 3 represented the applicant’s second armed robbery.
(b)In the six months before the offending, the applicant had received sentences on three occasions for dishonesty and violent offences, including robberies, thefts, an affray, and unlawful assaults.
(c)Despite being made subject to court orders requiring the applicant to be of good behaviour, the applicant engaged in criminal conduct within one week of her last sentence.
(d)This offending occurred while the applicant was on bail.
(e)These matters did not discourage the applicant from reoffending.
While the judge accepted evidence of remorse, and some positive prospects of rehabilitation, these issues were not free from doubt:
(a)The sentencing judge accepted there was evidence of remorse, though the applicant initially denied her offending and claimed that she could not remember her offending behaviour.[24]
(b)The judge made reference to the prosecution’s concession that there was a basis to make a positive finding about the applicant’s prospects of rehabilitation. When read as a whole, however, it seems to us that the judge considered the applicant’s reform was tied to her future successful engagement with psychological treatment and support (and there remained some uncertainty about this).[25]
[24]Reasons, [80(a)].
[25]Reasons, [86].
Specific deterrence was relevant, as the judge recognised.[26]
[26]Reasons, [79].
The applicant’s personal factors, while very weighty, served to moderate, but not eliminate altogether, considerations such as deterrence, denunciation, and community protection.[27] While the judge did not explicitly emphasise these considerations in his remarks, his attention to the assessment of the seriousness of this offending suggests he was alive to their relevance. They clearly remained of some importance to a sentence for an armed robbery, and one of this gravity, notwithstanding the significant ameliorating effect of the applicant’s personal circumstances.
[27]Veen v The Queen (No 2) (1988) 164 CLR 465, 476–77 (Mason CJ, Brennan, Dawson and Toohey JJ); [1988] HCA 14; Bugmy v The Queen (2013) 249 CLR 571, 595 [44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); [2013] HCA 37; DPP v Terrick (2009) 24 VR 457, 468–69 [46] (Maxwell P, Redlich JA and Robson AJA); [2009] VSCA 220.
It is to be recalled that mid-range armed robberies commonly attract terms of imprisonment of medium length (with accompanying non-parole periods). This sentence was well below that. It should also not be forgotten that the maximum penalty for armed robbery is 25 years’ imprisonment.
We think the weight which ought to have been attached to the applicant’s strong personal mitigating circumstances — including the applicant’s youth and rehabilitation — was reflected in the combination sentence which the judge fashioned (including the length of the imprisonment component).
In our view, this sentence was well within the permissible range of options available to the sentencing judge.
Complaint is also made that the sentences of one month imprisonment imposed for each of the two thefts of motor vehicle and the dishonestly receiving stolen goods matters (charges 1, 2 and 4) were not reasonably open. The nub of the complaint is that terms of imprisonment (even short ones) were not open.
In support of the argument, the applicant emphasises that she was sentenced upon the basis that:
(a)She was a passenger in the stolen vehicles, but otherwise not involved in the actual theft of the vehicles (in relation to charges 1 and 2).
(b)She only exercised ‘joint control over the stolen goods’ and assisted in their disposal (in relation to charge 4).
Even so, this offending was — like the armed robbery charge — aggravated by the fact that the applicant was subject to multiple court orders for similar offending — one of which was imposed only days earlier. As the judge noted, this offending had to be seen in the context that the applicant had some previous offending involving theft from a shop and attempted theft of a motor vehicle, and obtaining property by deception.[28] The vehicles themselves were later models and were of inherent value. The motivation of the theft of Subaru Impreza at least was to obtain a vehicle to commit other offences. In relation to charge 4, the applicant was an active participant in the receipt of a very large quantity of perfume which she then sought to sell online.
[28]Reasons, [79].
As the applicant’s counsel acknowledged before us, manifest excess is a difficult ground to make good.[29] While terms of imprisonment may be viewed as stern for these charges, the applicant has not shown that the sentences are wholly outside the permissible range.[30]
[29]Cook v The Queen [2021] VSCA 293.
[30]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157; Ayol v The Queen [2014] VSCA 151, [30] (Maxwell P).
In any event, even if it were reasonably arguable that the sentences imposed on charges 1, 2 and 4 are manifestly excessive, it would be pointless to grant leave. The terms of imprisonment on charges 1, 2 and 4 were directed to be served concurrently with the sentence imposed in respect of charge 3 (armed robbery). They therefore had no impact upon the total effective sentence imposed in this case. At the oral hearing before us, the applicant’s counsel acknowledged the futility of this application were it to fail with respect to the armed robbery sentence. As we have decided not to interfere with the sentence for charge 3 (armed robbery), there is no prospect that the total effective sentence will be reduced.[31]
[31]Criminal Procedure Act 2009, s 280(1)(b).
The ground must be rejected.
Ground 2: The sentencing judge erred in relation to the assessment of the applicant’s prospects of deportation and the weight to be given to it
There is no merit to ground 2.
It is common ground that the applicant’s risk of deportation was a relevant factor in accordance with the principles in Guden v The Queen.[32]
[32](2010) 28 VR 288, 294–95 [25]–[27] (Maxwell P, Bongiorno JA and Beach AJA); [2010] VSCA 196.
This ground is tied to the contention that the sentencing judge — when considering this issue — misapprehended the minimum length of a term of imprisonment necessary to trigger a mandatory visa cancellation under s 501(3A) of the Migration Act 1958 (Cth) (‘Migration Act’).
In support of this ground, the applicant referred to several passages from the judge’s reasons for sentence as well as the relevant provisions of the Migration Act.
In order to understand this point, it is important for us to reproduce those passages, and to summarise our understanding of the effect of those statutory provisions.
When summarising the applicant’s arguments made before him at the plea, and the mechanics of the relevant provisions, the judge said:
Your counsel submitted that there is the real prospect that you would be deported from Australia if convicted and sentenced to more than 12 months in prison.
Under the present provisions of the Migration Act 1958 (Cth), if you are sentenced to a period of imprisonment of 12 months or more, you face deportation (subject to ministerial intervention) which would mean your return to New Zealand. Following a line of authority commencing with Guden v The Queen [2010] VSCA 196 (see [25]–[27]), such a situation is relevant in potentially two ways:
(i)During your period of imprisonment you will have the prospect of deportation hanging over your head;
(ii)At the end of your prison sentence, deportation for you would have significant consequences including:
-you migrated as a child from New Zealand to Australia to escape dysfunctional family circumstances,
-you have little relationship with your mother or siblings who remain in New Zealand,
-your primary familial support is your grandmother who resides in Australia. [33]
[33]Reasons, [40(e)].
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).
The short answer to the complaint is that we are unpersuaded that the sentencing judge proceeded under the asserted misapprehension or upon the wrong footing. We say that for several reasons.
First, when specifically, and directly explaining the strict effect of s 501(3A), his Honour correctly noted that:
Under the present provisions of the Migration Act 1958 (Cth), if you are sentenced to a period of imprisonment of 12 months or more, you face deportation (subject to ministerial intervention) which would mean your return to New Zealand.[42]
[42]Reasons, [40(e)].
The judge said in parentheses that this would be subject to ministerial intervention, which we think is a (correct) reference to the discretion which the Minister retains to revoke any decision made under s 501(3A) to cancel a visa.[43]
[43]Migration Act 1958 (Cth) s 501CA; Konamala v The Queen [2016] VSCA 48, [30] (Maxwell P, Redlich and Priest JJA).
Second, the impugned references (sentenced to ‘more than 12 months in prison’ and to ‘greater than 12 months’) were instances of the sentencing judge summarising, in a broad way, the submissions of both parties. They cannot be read in isolation from the judge’s accurate statement of the technical effect of s 501(3A).
Third, we are fortified in our conclusion that the judge did not operate under any misapprehension by the following exchange which occurred between the judge and defence counsel at the plea:[44]
[44]Emphasis added.
HIS HONOUR: What do you say - just on Guden though, clearly enough when the Act changed, the Immigration Act, and it became compulsory or mandatory - - -
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: - - - at 12 months or more imprisonment you were to be deported in distinction to before it was a discretion to deport, - - -
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: - - - the fact of the matter it still is though, is it not, that the Act recognises that there is a remedy where that decision can be reviewed by the - I assume the Minister or some authority - - -
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: - - - and indeed that can be - deportation is not necessarily the end result, although it is the starting point.
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: Now, that doesn't impact though or does it impact on the two considerations I've just - if I convict her and clearly I will but in relation to - and there is a period of imprisonment of 12 months or more - - -
[DEFENCE COUNSEL]: Yes.
It seems to us that the sentencing judge was very much alive to the relevant deportation consequences under the current provisions of the Migration Act.
The sentencing judge also correctly stated[45] the relevance of the prospect of an offender being deported following sentence.[46] His Honour then carefully applied these principles to the applicant’s case:
I also consider that you do run the risk of deportation if convicted and sentenced to lengthy imprisonment, giving rise to a real prospect of being deported from Australia. As stated earlier, and as accepted by the prosecution, this situation manifests itself by hardship in prison when facing the prospect of deportation and the fact that deportation would be significant for you, given you would be deported to New Zealand, the very place which gave rise to your need to travel to Australia and avoid your dysfunctional family and all the circumstances attending it.[47]
[45]Reasons, [40(e)].
[46]That the risk of deportation may make the burden of imprisonment more onerous and may have the additional punitive effect of an offender losing their opportunity of settling permanently in Australia. See Guden v The Queen (2010) 28 VR 288, 294–95 [25]–[27] (Maxwell P, Bongiorno JA and Beach AJA); [2010] VSCA 196; see also Konamala v The Queen [2016] VSCA 48, [33]–[36] (Maxwell P, Redlich and Priest JJA) concerning the application of these principles to s 501(3A) of the Migration Act 1958 (Cth).
[47]Reasons, [80(e)] (emphasis added).
Having accepted that the applicant ‘runs the risk of deportation’ and faced ‘a real prospect for deportation’, it is difficult to see how the sentencing judge could have accorded this issue more weight than he did. This reinforces our conclusions that the judge made no error in relation to his assessment of the applicant’s risks of deportation, and that the matter received its due weight[48] in the sentencing exercise.
[48]At the oral hearing of the application, the applicant accepted that the complaint about weight per se is really a particular of the contention that the sentences were manifestly excessive under ground 1. Strictly speaking that is correct. It has, however, been convenient for us to address this issue in detail under cover of ground 2 given that it appears to have been tied to the point that the judge proceeded under a misapprehension in relation to his assessment of the risk.
Finally, we also note that, as was observed in Loftus v The Queen,[49] it would have been inappropriate for the sentencing judge to artificially depress the sentence or sentences he imposed to produce a result which avoided any possible migration consequences.
[49][2019] VSCA 24, [81] (Whelan AP and Niall JA).
Ground 2 must be rejected.
Conclusion
Each of the grounds must fail and leave to appeal is refused.
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