See full judgment: Austlii.
The offender was sentenced following a plea of guilty to 1 count of using a carriage service to procure a person under 16 years for sexual activity contrary to s 474.26(1) of the Commonwealth Criminal Code. Original sentence imposed 3 years imprisonment to be released after 1 year and 8 months on recognizance. The offender appealed on the ground that the sentencing judge failed to take into account the offender’s time in pre-sentence immigration detention.
Commencement of Sentence: Offender was previously serving an ICO for a state offence until taken into custody for the Commonwealth offence, at which time the ICO was revoked and offender was taken into custody. Offender’s visa was cancelled due to the state criminal conviction. Offender entered immigration detention on 9 March 2022. On 4 June 2022, the Department of Home Affairs issued a Criminal Justice Stay Certificate at the request of the CDPP made in February 2022 to prevent offender’s removal or deportation.
Failure to Consider: The reasons for sentence noted counsel’s request to backdate the sentence commencement, but in a transcript of proceedings after the Remarks on Sentence were delivered, the sentencing judge stated ‘I make it clear I have not regarded the immigration detention as referable to the sentencing process’. In failing to provide reasons for not taking into account the period offender had spent in immigration detention when that matter had been raised in the proceedings, the sentencing judge erred in the exercise of their sentencing discretion. Further, the sentencing judge not providing reasons and only announcing their decision that the immigration detention was ‘not referable to the sentencing process’ after delivering their sentencing remarks strongly suggests that the sentencing judge erred by failing to take into account the period in detention.
Referable Period: For all of the time that offender was in immigration detention, they were so because of the request of the Commonwealth that they remain in Australia for the purpose of the prosecution. Offender’s detention was in relation to the offence for sentence. Although offender was in immigration detention for 2 reasons for part of the time, the CDPP request was a factor in that detention. The delay in the making and granting of the CDPP’s request should not operate to the detriment of offender. Offender’s period in immigration detention from 9 March 2022 should be treated as referable to the offence. Offender’s sentence should be backdated, pursuant to the general discretion in s 47(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (operating via Crimes Act 1914 (Cth) s 16E). Evidence of hardship while so detained is not necessary for the backdating to occur.
Orders: Leave to appeal granted, appeal allowed, original sentence set aside. Offender resentenced to 3 years imprisonment to be released after 1 year and 8 months on recognizance (unchanged). The commencement date is backdated to take into account the 211 days offender was in detention. As this would result in a release date which has passed, backdating set to that offender is released the day after the orders of the Court.
