Skip to content

Welcome to the COMMONWEALTH SENTENCING DATABASE

Deportation


The content on this page was last reviewed on 26 November 2018.

Related Links:
Offender’s Family and Dependants
Hardship to the Offender

1. Overview

Section 19AK of the Crimes Act 1914 (Cth) expressly deals with the issue of an offender’s liability to be deported. 1 In determining an appropriate sentence, a judge must not reduce an otherwise appropriate sentence merely to avoid the risk of deportation.

The risk of deportation is not listed as a sentencing factor in s 16A(2) of the Crimes Act 1914 (Cth). The common law principles that have developed on these issues are applicable to federal sentencing. However, there is conflicting authority as to whether an offender’s prospects of deportation is a relevant federal sentencing factor. Some courts have stated that it is inappropriate to take into account an offender’s prospects of deportation because deportation is a function of the executive power, rather than judicial power. The decision to deport a person is an executive act. 2 Accordingly, an order imposing deportation is an executive order arising from an administrative decision, it is not a court order, and for that reason it is not punishment for a criminal offence. 3

As discussed below there is conflicting authority holding that an offender’s prospects of deportation may be a relevant sentencing factor.

2. Taking Risk of Deportation into Account in Sentencing

In determining the appropriate sentence for a federal offence, a court ‘must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence’. 4 The court must also ensure that the offender is adequately punished for the offence. 5

There is conflicting authority between states and territories as to whether an offender’s prospects of deportation is a relevant sentencing factor. 6

The approaches taken in each jurisdiction are outlined below.

2.1 Jurisdictions where deportation held not to be a relevant sentencing factor

2.1.1 New South Wales

In New South Wales, courts have held that the offender’s prospects of deportation is not a relevant sentencing factor. In R v Chi Sun Tsui (1985) 1 NSWLR 308, 311 Street CJ held (Slattery CJ at CL and Roden J agreeing) that:

[T]he prospect of deportation is not a relevant matter for consideration by a sentencing judge, in that it is the product of an entirely separate legislative and policy area of the regulation of our society … 7 

This approach was reaffirmed in the recent decision of Kristensen v The Queen [2018] NSWCCA 189, where Payne JA (RA Hulme and Button JJ agreeing) stated at [34] that:

[I]t remains the case that, as in Mirzaee, Pham and AC, the applicant here is at risk of deportation once released from prison … The possibility of deportation was not, in Mirzaee, Pham and AC, a relevant consideration on sentence, even in fixing the offender’s non-parole period … deportation remains a matter for the Commonwealth Executive Government, subject to review within the Constitutional structure (emphasis added). 

The Court considered whether the approach followed in Queensland and Victoria should be adopted. Payne JA stated at [35] that:

Even if the Victorian and Queensland approach to this question were to be adopted, this is a case where the evidence about the applicant’s likely deportation does not rise beyond mere speculation. If there is to be a challenge to the long standing New South Wales approach to the relevance of possible deportation to sentencing, this case is not an appropriate vehicle for such a challenge. I do not propose to take the applicant’s possible deportation into account (emphasis added). 

2.1.2 Western Australia

Western Australian courts have affirmed the approach taken in R v Chi Sun Tsui and have held that the offender’s prospects of deportation is not a relevant sentencing factor. In Dauphin v The Queen [2002] WASCA 104, the Court considered whether the prospect of the offender being deported back to New Zealand had an impact on sentence. Steytler J (Anderson and McKechine JJ agreeing) held at [22]:

In my opinion, this submission is without merit. In R v Chi Sun Tsui (1985) 1 NSWLR 308 at 311, Street CJ (with whom the other members of the Court were in agreement) said that “the prospect of deportation is not a relevant matter or consideration by a sentencing Judge, in that it is the product of an entirely separate legislative policy area of the regulation of society“. Those remarks were cited with apparent approval by Brennan and McHugh JJ in R v Shrestha [1991] HCA 26; (1991) 173 CLR 48 at 58. Furthermore, as McPherson JA explained in R v Simard [2001] QCA 531 at [6], taking the prospect of the applicant’s deportation into consideration has the potential to “produce a regime under which visitors or non-permanent residents [are] sentenced more leniently than Australians who [have] committed the same kind of offence. That cannot be a proper result in the administration of justice” (emphasis added). 8

In the state sentencing case, Hickling v The State of Western Australia [2016] WASCA 124, Mazza JA and Mitchell J affirmed Dauphin at [57]:

It is obvious that the effect of the prospect of deportation upon a prisoner has not been uniformly approached in Australia. However, the position in Western Australia has been long established. Senior counsel for the appellant did not expressly ask this court to overrule Dauphin. No request was made for a bench of five judges to hear this matter. We have not been persuaded that the decision in Dauphin is wrong. We respectfully agree with the reasoning of Steytler J in Dauphin. That reasoning is consistent with the approach in this State with respect to other decisions of the executive arm of government regarding release on parole and the prospect of an interstate prison transfer (emphasis added).

Additionally, the court considered that it was not appropriate to consider an offender’s prospects of deportation as a mitigating circumstance at [60]:

Further, it is not apparent why, as a matter of principle, special mitigatory weight should be given to the effect which the ‘prospect of deportation’ may have on the impact which a sentence of imprisonment will have on the offender (Guden [25], [27]). Many offenders, if not every offender, sentenced to a term of imprisonment suffer uncertainty — even great uncertainty — in prison about matters such as whether their relationships will remain intact; their prospects of employment; whether they will have somewhere to live upon release and where that might be. For some, whether they will return home or back into the community or town in which they lived will be uncertain. These are regarded as matters which are unavoidable consequences of imprisonment and do not constitute mitigating circumstances. We are unable to see the qualitative difference between these factors and the prospect of deportation even under the new regime (emphasis added). 

2.1.3 Northern Territory

In the Northern Territory, the offender’s prospects of deportation is not a relevant sentencing factor. 9 In R v MAH [2005] NTCCA 17, Mildren J (Thomas and Southwood JJ agreeing) affirmed the approach adopted in the Western Australian federal sentencing case of Dauphin v The Queen [2002] WASCA 104 at [41]–[44]. 10 Southwood J added further remarks stating at [64] that:

There is a dichotomy between the authorities in Western Australia and New South Wales on the one hand — see, for example, Dauphin v R (supra); R v Pham (supra) at par [13]–[14] and Victoria on the other — see, for example, The Queen v Emin Kansiz VCCA (Unreported, Delivered 7 December 1982) in relation to whether the prospect of deportation of an offender is a relevant matter for consideration by a sentencing judge. In my opinion the approach adopted by the Court of Appeal in New South Wales and the Supreme Court in Western Australia is the correct approach (emphasis added).

Return to Top

2.2 Jurisdictions where deportation held to be a relevant sentencing factor

2.2.1 Victoria

In Victoria, courts have held that the offender’s prospects of deportation is a relevant sentencing factor. In the state sentencing case of Guden v The Queen [2010] VSCA 196, the Supreme Court of Appeal undertook a review of the authorities on the relevance of deportation, and stated at [19] that:

The oft-cited statement by Street CJ – that the prospect of deportation ‘is not a relevant matter for consideration by a sentencing judge’ – must therefore be understood as explained by, and limited to, the statutory context in which it arose and the particular issue which the Court was addressing – that of the fixing of a non-parole period.  There was no occasion for Street CJ to make, nor do we think his Honour intended to make, any wider statement about the relevance of deportation as a factor in sentencing. 11

The Court in Guden further held at [25] that:

In our view, authority does not require, and there is no sentencing principle which would justify, a conclusion that the prospect of an offender’s deportation is an irrelevant consideration in the sentencing process.  As a matter of principle, the converse must be true.  Like so many other factors personal to an offender which conventionally fall for consideration, the prospect of deportation is a factor which may bear on the impact which a sentence of imprisonment will have on the offender, both during the currency of the incarceration and upon his/her release (emphasis added). 12

The Court in Guden noted at [27] that the prospect of deportation may be relevant as:

[T]he fact that an offender will serve his/her term of imprisonment in expectation of being deported following release may well mean that the burden of imprisonment will be greater for that person than for someone who faces no such risk. 13 Moreover, we respectfully agree with the view expressed by the New South Wales Court of Criminal Appeal in Kwon [2004] NSWCCA 456 that, in an appropriate case, it will be proper to take into account the fact that a sentence of imprisonment will result in the offender losing the opportunity of settling permanently in Australia. Taking a practical approach, as the Court there did, this may well be viewed as a serious ‘punishing consequence’ of the offending. 14

However, the Court went on to caution that the sentence should only be reduced where there is sufficient evidence of both the risk of deportation and the impact of that risk, stating at [28]–[29] that:

Of course, as this Court made clear in Griffiths (Unreported, Court of Appeal, 29 April 1998, Tadgell, Phillips and Kenny JJA), the sentencing court cannot be asked to speculate.  If defence counsel on a plea in mitigation can say no more than that a term of imprisonment of more than 12 months will, upon its expiry, enliven the power of the Minister for Immigration either to revoke an existing visa or to decline to renew one, then deportation may properly be viewed – as in Griffiths – as ‘a completely speculative possibility’.

[I]n the absence of evidence or an appropriate concession by the Crown, there will be no error in a judge declining to take into account the possibility of deportation.  Indeed, in order properly to assess the weight to be given in any particular case to a risk of deportation, evidence would be required sufficient to permit a sensible quantification of that risk to be undertaken.  It would also be necessary for a prisoner to demonstrate that deportation in his/her case would in fact be a hardship (emphasis added). 15

The approach in Guden has been applied in federal sentencing cases in Victoria. 16 For example, the Court summarised the principles from Guden in the federal case of HAT v The Queen [2011] VSCA 427 where Redlich JA (Neave JA and Lasry AJA agreeing) stated at [126] that:

[T]his Court made clear in Guden that the prospect of deportation is a factor which may be relevant to the impact that a sentence of imprisonment will have on the offender, both during the currency of their incarceration and upon his or her release, and therefore, subject to the state of the evidence that such deportation is likely, it should be taken into account when sentencing. The burden of imprisonment may be greater for a prisoner who knows that following his release he will be deported. Also, if the effect of receiving a sentence of imprisonment is that an offender will lose the opportunity of settling permanently in Australia, this may be taken into account as a form of additional punishment. But a sentencing judge is not required to speculate; there must be evidence that enables a sensible quantification of the risk that deportation will in fact occur, and proof that deportation would in fact be a hardship for that particular offender (emphasis added; citations omitted). 

2.2.2 Queensland

In Queensland, an offender’s prospects of deportation is a relevant sentencing factor. 17 In R v UE [2016] QCA 58, Philippides JA (Morrison JA and North J agreeing) affirmed the approach in Guden when undertaking a review of the authorities. The Queensland Court of Appeal held at [15] that:

The starting point for a discussion of the relevance of deportation is often the statement of Street CJ in R v Chi Sun Tsui that “… the prospect of deportation is not a relevant matter for consideration by a sentencing judge, in that it is the product of an entirely separate legislative and policy area of the regulation of our society”. As Maxwell P explained in Guden, that statement was made in the context of whether the prospect of deportation was relevant when considering if a non-parole period should be specified under legislation which prohibited the Parole Board from refusing to release a prisoner on parole “by reason, only that, in the opinion of the Board, the prisoner may become liable to be deported”. The statement is not to be regarded as one of general application. To the extent that the decision of this Court in R v S suggested in obiter remarks otherwise, it ought not to be followed (emphasis added).

The Court continued at [16] stating that the correct approach is to take the prospect of deportation into account:

It is undoubtedly correct that, in an appropriate case, the prospect of deportation may be a relevant factor, personal to the offender, to be considered in mitigation of sentence. The prospect of deportation may affect the impact of a sentence of imprisonment, because it makes the period of incarceration more burdensome, and also because upon release, the fact of imprisonment will result in the offender being deprived of the opportunity of permanent residence in Australia. While the prospect of deportation may be a relevant mitigatory factor, the sentencing court cannot be asked to speculate about that prospect or as to the impact of deportation on the offender. Proof that deportation will in fact be a hardship for the particular offender will be required (emphasis added; citations omitted). 18 

2.2.3 Australian Capital Territory

Courts in the Australian Capital Territory have held that the offender’s prospects of deportation is a relevant sentencing factor. 19 In the federal sentencing case of R v Aniezue [2016] ACTSC 82, Refshauge J affirmed the approach in Guden stating at [64]–[65], [67] that:

[I]n 2011, the [Victorian] Court of Appeal in Guden v The Queen [2010] VSCA 196; [25]–[27] held that the prospect of deportation is a factor that may be relevant to the impact that a sentence of imprisonment must have on an offender, both during the currency of the incarceration and upon his or her release, and that, therefore, the prospects of such deportation, subject to proper evidence about it, should be taken into account. This approach has been followed since then. See Tan v The Queen (2011) 216 A Crim R 535 at 568–9; [126]–[129]; Konamala v The Queen [2016] VSCA 48 at [23]–[38] and Da Costa Junior v The Queen [2016] VSCA 49 at [22]–[33].

 

These courts have made it clear that the prospects of deportation is relevant to sentencing.

 On the basis of this authority, I consider that I should take into account as a factor that will bear heavily upon Mr Aniezue … that he will be deported (emphasis added). 

2.2.4 Tasmania

The offender’s prospects of deportation has been raised as a relevant sentencing factor in Tasmania. 20

Return to Top

2.3 Jurisdictions where deportation as a relevant sentencing factor is unsettled

2.3.1 South Australia

The position in South Australia regarding whether the offender’s prospects of deportation is a relevant sentencing factor is unsettled.

In the federal sentencing case of R v Berlinsky [2005] SASC 316 the court held that the link between the sentence and an adverse effect on the offender’s son resulting from her deportation was ‘too speculative’. Doyle CJ stated at [32]–[33] that:

I reach that conclusion quite apart from the question of whether it is appropriate to consider the consequences of deportation at all. That is a matter on which the Court did not hear full submissions, and for present purposes I am prepared to assume that the Court could do so, were the necessary factual basis made out.

 

There is a further point to be made. [Defence counsel] urged the Court to impose a sentence of less than 12 months’ imprisonment, if a sentence of imprisonment were to be imposed, so that Ms Berlinsky would not fail “the character test”. In my view it would not be proper exercise of this Court’s power to tailor the sentence in such a way as to affect the decision by the Minister (emphasis added).

Bleby J agreeing with Doyle CJ stated at [44], [46] that:

The sentence then under consideration was obviously a sentence of 18 months imprisonment … In this case there were two possible effects of the sentence on the child. One was the effect of the incarceration … The other possible effect was the effect on her son if, because of that prison sentence, she was to be refused a visa to remain and was required to leave the country. Such a sentence would mean that, unquestionably, the appellant would not pass the character test referred to in s 501 of the Migration Act. If the sentence were less than 12 months imprisonment, she might or she might not pass that test. However, as the reasons of the Chief Justice demonstrate, the sentence imposed cannot be determinative, by itself, of the decision on the appellant’s application for a visa. The effect on her child of the refusal to grant a visa will itself be a matter of substantial importance in determining whether she should be granted a visa. It cannot be said that the probable effect that an 18 month sentence will have on the child is that he will be separated from either parent. It remains a mere possibility, as does the effect of a sentence of less than 12 months imprisonment …

 

It is not for this Court to attempt to influence in any way the decision on the appellant’s visa application, and the determination of the proper sentence in this case cannot be influenced in any way by the effect it may have on that decision (emphasis added).

In contrast, in R v Zhang [2017] SASCFC 5, Chivell AJ (Kourakis CJ and Vanstone J agreeing) adopted the approach taken by the Queensland Court of Appeal in R v Schelvis stating at [110]–[111], [113] that:

In R v Schelvis it was argued that the sentencing judge should have taken into account the effects of Ms Schelvis’ deportation being ‘almost inevitable … upon being released on parole’ …

 

Fraser JA (with whom Morrison JA and Peter Lyons J agreed) … referred to a line of authority in Queensland and Victoria which conflicted with authorities in Western Australia and in New South Wales about whether the prospect that an offender may be deported should be taken into account. His Honour accepted that ‘the risk of removal from Australia (must) be assessable rather than merely speculative before it may be taken into account by way of mitigation’, following Guden v R.

I respectfully agree with that analysis. Leaving aside the fact that the issue was not raised at the time of sentencing, the judge did not err in failing to take into account the prospect of deportation of Mr Zhang …

These conflicting authorities were considered by the South Australian Supreme Court in R v Arrowsmith [2018] SASCFC 47, Parker J (Vanstone and Nicholson JJ agreeing) stated at [35]–[38] that:

The question of the relevance of possible deportation to sentencing came before the Court of Criminal Appeal in R v Leka. Stanley J, with whom Peek and Hinton JJ agreed, observed that Zhang may have been decided per incuriam as no reference was made to the earlier decision in Berlinsky. I note that Berlinsky does not appear to have been drawn to the Court’s attention. Stanley J concluded that it was not necessary to resolve the conflict between the authorities in this State and interstate as the appeal could be decided on other grounds.

 

The relevance of deportation to sentencing again came before the Court of Criminal Appeal in R v Taheri. Nicholson J, with whom Kourakis CJ and Peek J agreed, noted the conflicting approaches but found that it was unnecessary to resolve the question as the appeal could be decided on other grounds.

 

I also consider that it is unnecessary to resolve the conflict between Berlinsky and Zhang. The approach adopted in Berlinsky (and also in New South Wales and Western Australia) is that the prospect of deportation is not a relevant consideration in sentencing. The alternative approach adopted in Zhang (and also in Victoria and Queensland) is that the prospect of deportation will be a relevant consideration if “the risk of removal from Australia … [is] assessable rather than merely speculative”.

 

The Court cannot speculate about a decision that is still to be made by the Commonwealth Minister or his delegate. Thus, the likelihood of the applicant being deported from Australia is, on the information before the Court, not assessable. For that reason it is immaterial which of the two lines of competing authority is correct. On either view, the risk of deportation cannot be taken into account in determining the Court’s response to the applicant’s repeated breaches of the recognisance release order.

Return to Top

3. Evidence required when deportation is taken into account as a relevant sentencing factor

Where the offender’s prospects of deportation is considered a relevant sentencing factor, the court must be satisfied that:

  • there is sufficient evidence of risk of deportation; and,
  • sufficient evidence of hardship to the offender as a result of the deportation. 21

3.1 Sufficient evidence of risk of deportation

Where the offender’s prospects of deportation is considered a relevant sentencing factor, the court must be satisfied there is sufficient evidence of risk of deportation. Courts have stated that there must be sufficient evidence to enable a ‘sensible quantification’ 22 of the risk of deportation.

In Guden v The Queen [2010] VSCA 196, the Court cautioned that an offender’s sentence should only be reduced where there is sufficient evidence of both the risk of deportation and impact of that risk, stating at [28]–[29]:

Of course, as this Court made clear in Griffiths (Unreported, Court of Appeal, 29 April 1998, Tadgell, Phillips and Kenny JJA), the sentencing court cannot be asked to speculate.  If defence counsel on a plea in mitigation can say no more than that a term of imprisonment of more than 12 months will, upon its expiry, enliven the power of the Minister for Immigration either to revoke an existing visa or to decline to renew one, then deportation may properly be viewed – as in Griffiths – as ‘a completely speculative possibility’ …

 

[I]n the absence of evidence or an appropriate concession by the Crown, there will be no error in a judge declining to take into account the possibility of deportation.  Indeed, in order properly to assess the weight to be given in any particular case to a risk of deportation, evidence would be required sufficient to permit a sensible quantification of that risk to be undertaken.  It would also be necessary for a prisoner to demonstrate that deportation in his/her case would in fact be a hardship (emphasis added).

This approach has been applied in the sentencing of federal offenders in Victoria. 23 For example, the Court summarised the principles from Guden in the federal case of HAT v The Queen [2011] VSCA 427 where Redlich JA (Neave JA and Lasry AJA agreeing) stated at [126]:

[T]his Court made clear in Guden that the prospect of deportation is a factor which may be relevant to the impact that a sentence of imprisonment will have on the offender, both during the currency of their incarceration and upon his or her release, and therefore, subject to the state of the evidence that such deportation is likely, it should be taken into account when sentencing. The burden of imprisonment may be greater for a prisoner who knows that following his release he will be deported. Also, if the effect of receiving a sentence of imprisonment is that an offender will lose the opportunity of settling permanently in Australia, this may be taken into account as a form of additional punishment. But a sentencing judge is not required to speculate; there must be evidence that enables a sensible quantification of the risk that deportation will in fact occur, and proof that deportation would in fact be a hardship for that particular offender (emphasis added; citations omitted).

It has been further emphasised that the sentencing judge is not to ‘speculate’ on whether the offender will be deported. 24 To this end, a sentencing judge is not required to put themselves in the position of the decision maker, and decide, on the balance of probabilities, what decision would be made. 25

In R v Aniezue [2016] ACTSC 82, a letter from the delegate of the Minister for Immigration and Border Protection was provided to the court. The letter stated that upon release from custody, the offender would be taken into immigration detention and deported. 26 This was treated as sufficient evidence of a risk of deportation.

In DPP v Yildirim [2011] VSCA 219, at [29]–[31] the Court found the sentencing judge had erred in giving any weight to the prospect of deportation where the only evidence was that the term of imprisonment, being greater than 12 months, created a risk of deportation under s 501 of the Migration Act 1958 (Cth). 27 The sentencing judge had stated that the offender’s immigration status ‘has now been put in jeopardy and I have taken that into account, although this is a discretionary matter for the Minister.’ The Court found that evidence was not sufficient to permit a sensible quantification of that risk to be undertaken, and that there had been no demonstration that deportation in his case would in fact be a hardship. 28

3.1.1 Impact of amendments to the Migration Act on offender’s prospects of deportation

Courts have considered whether recent amendments to the Migration Act 1958 (Cth) have altered whether an offender’s prospects of deportation should be taken into account at sentence. 29 In the federal sentencing case of R v UE [2016] QCA 58the Queensland Court of Appeal considered, but did not decide on, 30 the impact of these amendments. Counsel for the offender argued that the amendments to the Migration Act increased the likelihood of the offender being deported and were thus more than a ‘speculative possibility.’ The argument was explained at [18]:

[W]hile it was accepted that it was possible for the Minister to revoke a decision to cancel a person’s visa pursuant to s 501CA, the applicant argued that the presumptive position is that the applicant’s visa will be cancelled on his release. Returning to the language of Gudenthe applicant submitted that the only “speculative possibility” under the new regime is the possibility that a person will not be deported rather than the possibility that they will be. It was thus contended that deportation was “essentially certain” for the applicant. The prospect of deportation is clearly a real one, but that was referred to by the sentencing judge and counsel for the applicant accepted that there was no error in his Honour’s formulation of the risk in stating that the applicant was “likely to be deported” (citations omitted) (emphasis added). 31

In Kristensen v The Queen [2018] NSWCCA 189, Payne JA held at [34]:

I see no reason based on the provisions of the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) to adopt any different approach to sentencing in New South Wales … Deportation was a live issue in cases such as the present under the migration law prior to 2014. After the amendment, deportation remains a matter for the Commonwealth Executive Government, subject to review within the Constitutional structure.

In R v Arrowsmith [2018] SASCFC 47, Parker J (Vanstone and Nicholson JJ agreeing) stated at [38] that:

I do not consider that the amendments to the Migration Act … affect the position as the decision on cancellation still lies with the Minister.

3.2 Deportation as hardship to the offender

Where the offender’s prospects of deportation is considered a relevant sentencing factor, the court must be satisfied there is sufficient evidence to show there will be sufficient hardship to the offender.

In The Queen v Mohamed [2016] VSC 581, the offender was charged with acts preparatory to an incursion into a foreign state with the intention to engage in hostile activity offences contrary to s 7(1)(a) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). The offender was a New Zealand citizen who was born in Somalia and had migrated to New Zealand with his family in 1998. Sufficient evidence of hardship to the offender was found to exist due to the offender’s likely deportation to New Zealand. Taking the principles in Guden into account, 32 the court held at [46], [48]:

[G]iven you had only been in Australia 10 months prior to the commission of the offences, and were both educated and largely raised in New Zealand, the burden of imprisonment would not necessary be more onerous for you on account of any prospective deportation.

 

It was submitted on your behalf that the reality of deportation has been hanging over your head since January of 2014. Whilst your family is now in Australia, it was not submitted that you would be isolated in New Zealand as there is a community network there to support you. However, you would miss out on life with your direct family. I accept that would be a hardship and I take it into account in determining the sentence to be imposed (emphasis added).

In R v El Ali [2013] VSC 172, the Victorian Supreme Court applied the principles from Guden v The Queen [2010] VSCA 196 in the sentencing of a state offender. The Court did not take the prospect of deportation into account as there was insufficient evidence to render that prospect ‘anything more than wholly speculative.’ 33 However, the Court did take into account that the possibility of deportation would make the sentence of imprisonment additionally burdensome on the offender as he reflected on ‘the hardship that [he] will have brought upon [himself] and [his] family should that possibility be realised.’ 34

In R v Aniezue [2016] ACTSC 82, a letter from the delegate of the Minister for Immigration and Border Protection stated that upon release from custody, the offender would be taken into immigration detention and deported. 35 Refshauge J held that this established sufficient hardship to be suffered by the offender at [67]–[68]:

[I] consider that I should take into account as a factor that will bear heavily upon Mr Aniezue (indeed, it already will have done so because of the receipt of the letter), that he will be deported.

 

This is partly because he is likely to be deported to Nigeria, where he has limited family, only his grandmother, and because his mother is in Malaysia where he may or may not be permitted to enter … (emphasis added).

In R v Asaad [2017] QCA 108, Fraser JA (Philippides JA and Jackson J agreeing) found that the sentencing judge was not in error by inferring from the circumstances that the offender would suffer hardship as a result of deportation. His Honour held at [60] that:

As the sentencing judge observed, there was no express evidence that deportation in fact would be a hardship for the appellant, but the sentencing judge inferred as much from the evidence about the long time the appellant had lived in Australia, that he had a wife and family, and that his family included a disabled son for whom the appellant cared. There is no basis for thinking that the sentencing judge attributed so little weight to that factor as to suggest any error of principle (emphasis added). 

3.2.1 Circumstances where sufficient evidence of hardship to the offender not shown

In R v UE [2016] QCA 58, the Court found that the sentencing judge was not in error in stating that there was insufficient evidence to establish that the offender would experience hardship as a result of being deported after release. The Court explained at [21] that:

The evidence before his Honour indicated that during the applicant’s period in Australia, he had married but the relationship had failed and he had separated from his wife. And although he had made efforts to establish a business, it also had failed. The applicant’s parents and siblings lived in Canada and the applicant had a close relationship with his father who had travelled from Canada to provide surety. When the considerable difficulties experienced by the applicant during his time in Australia are considered and contrasted with the evidence of his close continuing ties with his family in Canada, the sentencing judge’s approach in indicating to counsel that he was not in a position to determine that being deported from Australia would be likely to result in hardship for the applicant cannot be said to have proceeded on an erroneous basis. 36

In the federal sentencing case of DPP v Peng [2014] VSCA 128, the Court found that the sentencing judge had erred in taking into account the possibility of deportation where there was no evidence put forward that deportation would ‘work a hardship’, and noted that the evidence in fact suggested the offender wished to return to his home country. 37

Return to Top

4. Fixing a Non-Parole Period

Section 19AK provides that a court is not precluded from fixing a non-parole period in respect of a federal sentence merely because the person, is or may be, liable to be deported from Australia.

In R v Shrestha [1991] HCA 26, Deane, Dawson and Toohey JJ identified two reasons why a federal offender’s liability to be deported should not compel a sentencing judge to find that the fixing of a non-parole period is inappropriate. The majority said at [72]–[73]:

[First,] … the compulsory deportation of a prisoner released on parole is something which is beyond the control of the prisoner. It lies within the control of government.

 

[Second,] … a sentencing judge is not ordinarily required or empowered to determine whether a convicted person should in fact be released on parole at some future time. He or she is concerned to decide whether a prisoner should be eligible to be considered for release on parole at that future time. The likelihood of deportation, the lack of ties with this country and the difficulty or even impossibility of effective supervision and enforcement of parole conditions are all factors which will properly be taken into account by a parole authority when considering, at that time, whether the prisoner should be actually released on parole (emphasis added). 38

Similarly in Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370, 386 the Court said:

It is possible, indeed likely, that the respondent will be deported from Australia immediately after completing the non-parole period fixed by the Court. However, this is not certain. Moreover, it is something which is outside the control of the Court. We should therefore proceed to determine the period of sentence which he should serve on parole in the same way as we would in the case of an equivalent Australian prisoner returned to the community. This is relevant in the present case, for it is tolerably clear that the respondent would benefit from parole and that this would foster his rehabilitation … (emphasis added).

Return to Top

Notes:

  1. See 4. Fixing a non-parole period below.
  2. Chu Sao Hung (1953) 87 CLR 575, 583–584.
  3. The issue of whether deportation could amount to a form of ‘extra curial’ punishment was raised in R v Do [2005] NSWCCA 258 [21]. The question was left open, in this case, as no evidence had been put before the sentencing judge on which to base a conclusion on either the defendant’s deportation or whether this action would constitute additional punishment in the relevant sense. See [26], [31].
  4. Crimes Act 1914 (Cth) s 16A(1).
  5. Crimes Act 1914 (Cth)s 16A(2)(k).
  6. R v Arrowsmith [2018] SASCFC 47, [37]; Kristensen v The Queen [2018] NSWCCA 189, [35]; R v Schelvis; R v Hilderbrand [2016] QCA 294, [71]–[72].
  7. Affirmed in R v Latumetan & Murwanto [2003] NSWCCA 70, [19]. Cited with approval in R v Shrestha [1991] HCA 26, [12] (Brennan and McHugh JJ). See also R v Pham [2005] NSWCCA 94, [13] which was affirmed in state sentencing cases R v Sila [2015] ACTSC 64,[13]; Khanchitanon v The Queen [2014] NSWCCA,[28]; Ali v The Queen [2014] NSWCCA 45, [47]. However, the Court took the prospect of deportation into account in R v Kwon [2004] NSWCCA 456. See further R v Qin [2008] NSWCCA 189, [39]–[40] where the Court cited the statement of Wood CJ at CL in R v Pham [2005] NSWCCA 94,  [13] that ‘deportation is irrelevant as a sentencing consideration’, but found it unnecessary to decide the question of principle.
  8. Affirmed in federal sentencing case R v MAH [2005] NTCCA 17[41]; and state sentencing cases Hickling v The State of Western Australia [2016] WASCA 124, [57] (Mazza JA and Mitchell J), [1]–[10] (McLure P); Auckram v Allen [2016] WASC 107, [12].
  9. R v MAH [2005] NTCCA 17, [41].
  10. This has been applied in federal sentencing cases in the following jurisdictions: see R v De Silva [2011] NSWSC 243, [65] (Buddin J); Ponniah v The Queen [2011] WASCA 105, [48] (Mazza J, Pullin and Buss JJA agreeing); Habib Urahman v Semrad [2012] NTSC 95, [57]–[61] (Southwood J). See further Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, 2014) 425–426.
  11. The particular statutory context in R v Chi Sun Tsui (1985) 1 NSWLR 308 was NSW legislation which provided that a court could decline to specify a non-parole period either by reason of the nature of the offence or of the offender’s antecedents, or for any other reason which the Court considers sufficient. A different provision of the same legislation prohibited the Parole Board from refusing to release a prisoner on parole by reason only that the person may become liable to be deported. The Court found that the provision addressed to the Parole Board meant that the prospect of deportation was equally irrelevant as a sentencing consideration for a sentencing judge considering whether a non-parole period should be specified: R v Chi Sun Tsui (1985) 1 NSWLR 308, 211 (Street CJ, Slattery CJ at CL and Roden J agreeing).
  12. Applied in R v Aniezue [2016] ACTSC 82, [64]. See also state sentencing cases Da Costa v The Queen [2016] VSCA 49, [23]; Konamala v The Queen [2016] VSCA 48, [23]–[38]; DPP (Cth) v Zhuang [2015] VSCA 96, [54].
  13. See also Darcie v The Queen [2012] VSCA 11, [29]–[46].
  14. Guden v The Queen [2010] VSCA 196, [27] citing R v Kwon [2005] NSWCCA 456, [14]. The issue of whether deportation could amount to a form ‘extra curial’ punishment was raised in R v Do [2005] NSWCCA 258, [21]. The question was left open, in this case, as no evidence had been put before the sentencing judge on which to base a conclusion on either the defendant’s deportation or whether this action would constitute additional punishment in the relevant sense. See [26], [31]
  15. See further: 3. Evidence required when deportation is taken into account as a relevant sentencing factor.
  16. See, eg, Alam v The Queen [2015] VSCA 48, [12]; Kim v The Queen [2016] VSCA 238, [48].
  17. But see R v Mao [2006] QCA 99,[18] which was not expressly overruled by R v UE [2016] QCA 58.
  18. Considered in R v Asaad [2017] QCA 108, [59]; R v Zhang [2017] SASCFC 5, [111]; R v Schelvis; R v Hildebrand [2016] QCA 294. See also state sentencing cases R v Abdi [2016] QCA 298, [30]; R v Lincoln [2017] QCA 37, [70] (McMurdo P, Morrison JA agreeing) and [100] (Philippides JA) where this approach was affirmed but not applied as sufficient hardship to be suffered by the offender was not established.
  19. But see, eg, Moh v Pine [2010] ACTSC 27, [43], where it was considered that the offender’s deportation was not a relevant sentencing consideration.
  20. Taylor v The Queen [2015] TASCCA 7, [34] (Peace J, Blow CJ and Wood J agreeing).
  21. See, eg, Guden v The Queen [2010] VSCA 196, [29].
  22. HAT v The Queen [2011] VSCA 427, [126]; Guden v The Queen [2010] VSCA 196, [29]. See also R v UE [2016] QCA 58, [16] which was considered in R v Asaad [2017] QCA 108, [59]; R v Zhang [2017] SASCFC 5, [111]; R v Schelvis; R v Hildebrand [2016] QCA 294. See also state sentencing cases R v Abdi [2016] QCA 298, [30]; R v Lincoln [2017] QCA 37, [70] (McMurdo P, Morrison JA agreeing) and [100] (Philippides JA) where this approach was affirmed but not applied as sufficient hardship to be suffered by the offender was not established.
  23. See, eg, Alam v The Queen [2015] VSCA 48, [12]; Kim v The Queen [2016] VSCA 238, [48].
  24. Darcie v The Queen [2012] VSCA 11, [45].
  25. Darcie v The Queen [2012] VSCA 11, [45].
  26. R v Aniezue [2016] ACTSC 82, [62].
  27. Note: s 501 has been amended to insert the new provision of s 501(3A).
  28. See also state sentencing case Nguyen v The Queen [2016] VSCA 198 where the court considered whether hardship suffered as the result of the prospect of deportation would be different where the offender was an illegal resident at the time of sentencing. However, the court found at [36] that it was not necessary to decide on whether a different approach to sentencing should be adopted.
  29. Section 501 of the Migration Act 1958 (Cth) was amended by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) which inserted a new s 501(3A). Section 501(3A) provides that the Minister must cancel a person’s visa if satisfied that the person does not pass the character test and is serving a full time custodial sentence. This creates a new presumptive position that an offender who has been sentenced to a sentence of 12 months imprisonment or more will have their visa cancelled. The Minister has a discretion to revoke a decision to cancel a person’s visa under s 501CA of the Migration Act 1958 (Cth).
  30. R v UE [2016] QCA 58, [19]. The reason this did not need to be decided was because the Court found there was no hardship to the offender. See 3.2.1 for when hardship not shown.
  31. See R v UE [2016] QCA 58,[18] and R v Schelvis [2016] QCA 294, [76] for an explanation of the effect of the new legislative regime in the federal sentencing context. See R v Schelvis [2016] QCA 294, where Fraser J (Morrison JA and Lyons JA agreeing) held at [81]–[82] that the sentencing judge was not in error by not taking into account by way of mitigation the hardship which may have been suffered by the offender as the prospect of rehabilitation was entirely speculative. See further R v Zhang [2017] SASCFC 6; Da Costa v The Queen [2016] VSCA 49 where the Court held at [42] that the amendments did not alleviate the speculative nature of the prospect of deportation, as the offender ‘must [still] live with the uncertainty surrounding what will be a discretionary decision by the Minister.’
  32. The Queen v Mohamed [2016] VSC 581, [47].
  33. R v El Ali [2013] VSC 172, [54] (Weinberg JA).
  34. R v El Ali [2013] VSC 172, [54] (Weinberg JA).
  35. R v Aniezue [2016] ACTSC 82, [62].
  36. See also 3.1.1 for discussion of the amendments.
  37. DPP v Peng [2014] VSCA 128, [24]. See also Hardship to the Offender.
  38. See also Guden v The Queen [2010] VSCA 196, [18]. Denying the offender a parole period on the basis of the offender’s liability to be deported was considered contrary to R v Shrestha in federal sentencing case He v The Queen [2016] NSWCCA 220 at [23].