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R v Arrowsmith [2018] SASCFC 47

appeal against sentence — attempting to import border controlled precursor namely an unknown amount of pseudophedrine offence contrary to ss 11.1(1), 11.2A(1) and 307.13(1) of Commonwealth Criminal Code — original sentence imposed 12 months’ imprisonment with immediate 12 month recognisance release order  — offender subsequently charged with failure to comply with the order and offender’s bond was extended for a further 12 months — offender subsequently charged with second failure to comply with the order and offender ordered to serve sentence of imprisonment — manifest excess — deportation — two lines of authority in this Court as to whether prospect of deportation may be taken into account in sentencing — in R v Berlinksy the Court held that possibility of deportation was a matter for the Executive Government of the Commonwealth and not relevant as a sentencing consideration — this decision consistent with a series of decisions in New South Wales and Western Australia — in R v Zhang the South Australian Court of Criminal Appeal followed the different approach adopted in Victoria and Queensland which requires that risk of deportation must be assessable rather than merely speculative before it may be taken into account — subsequent cases have not resolved conflict between authorities —  unnecessary to resolve the conflict between existing approaches — offender’s letter indicates that Department of Home Affairs is still considering request to revoke cancellation of offender’s visa — the Court cannot speculate about a decision that is still to be made by the Minister or delegate — likelihood of offender being deported from Australia is not assessable — for that reason it is immaterial which line of the two lines of competing authority is correct — amendments to Migration Act do not affect position as decision on cancellation still lies with Minister — sentencing alternatives — sentencing judge not in error by rejecting other sentencing options available under s 20A of Crimes Act 1900 (Cth) — decision well within range of sentencing outcomes available to judge where offender shown inability or unwillingness to comply with terms of recognisance release order — permission to appeal refused
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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