Skip to content

Welcome to the COMMONWEALTH SENTENCING DATABASE

Federal Offenders Liable for Deportation

The content on this page was last reviewed on 12 April 2018.

Related Links:
Offender’s Family and Dependants

1. Overview

Section 19AK of the Crimes Act 1914 (Cth) is the only section that expressly deals with the issue of an offender’s liability to be deported. 1

The common law principles that have developed on these issues are applicable to federal sentencing.

In determining an appropriate sentence, a judge must not reduce an otherwise appropriate sentence merely to avoid the risk of deportation. However, there is conflicting authority as to whether an offender’s liability to be deported is a relevant factor in sentencing federal offenders. Some courts have stated that it is inappropriate to take into account for the purposes of sentencing an offender’s prospects of deportation as this is a function of the executive, rather than the judiciary. 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

Return to Top

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’: Crimes Act 1914 (Cth) s 16A(1). The sentencing court must also ensure that the federal offender is adequately punished for the offence: s 16A(2)(k). The risk of deportation is not a listed sentencing factor in s 16A(2) of the Crimes Act 1914 (Cth).

2.1 Sentence cannot be reduced to avoid risk of deportation

A judge must not reduce an otherwise appropriate sentence merely to avoid the risk of deportation. 4 As McPherson JA stated in R v S [2001] QCA 531 at [6]:

It would in my opinion be quite wrong for the sentencing judge to deliberately impose a lesser sentence in order to avoid the possibility of deportation … That would have the consequence of imposing a sentence that was less severe than that visited upon an Australian citizen who was at no risk of deportation. It would produce a regime under which visitors or non-permanent residents were sentenced more leniently than Australians who had committed the same kind of offence. That cannot be a proper result in the administration of justice (emphasis added).

2.2 ‘Relevance’ of risk of deportation?

In relation to State ofences, the Court in Guden v The Queen [2010] VSCA 196, found there is no sentencing principle that deporation is an irrelevant sentencing consideration. The Court stated at [25]–[28]:

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.

It follows that, subject always to the state of the evidence before the sentencing court, the prospect of deportation of the offender is a proper matter for consideration in determining an appropriate sentence. The Queensland Court of Appeal pointed out in Simard that this is not a sentencing consideration which can be called in aid by an offender who has Australian citizenship. But, with respect, this is simply an illustration of the infinite variety of personal circumstances which fall for consideration.

As the Crown properly conceded on this appeal, the 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. Moreover, we respectfully agree with the view expressed by the New South Wales Court of Criminal Appeal in Kwon 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.

Of course, as this Court made clear in Griffiths, 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’ (citations omitted) (emphasis added).

The Court in Guden noted that the prospect of deportation may be relevant where it:

  • makes the imprisonment more burdensome on the offender than it otherwise would have been, due to the offender serving the imprisonment in a state of fear or concern about being deported upon expiry of the sentence; 5 or
  • amounts to an additional ‘punishing consequence’ of the offending, such as where the offender loses the opportunity of settling in Australia. 6

However, courts sentencing federal offenders have found that deportation is an irrelevant sentencing factor because it falls outside the control of the courts. 7

For example, in the New South Wales case of R v Chi Sun Tsui (1985) 1 NSWLR 308, 311 Street CJ held (Slattery CJ at CL and Roden J agreeing):

[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 … 8

The Supreme Court of Western Australia Court of Criminal Appeal in Dauphin v The Queen [2002] WASCA 104, affirmed this approach. Steytler J (Anderson and McKechine JJ agreeing) considered whether the prospect of the offender being deported back to New Zealand had an impact on the exercise of the sentencing discretion. His Honour 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). 9

Similarly in the federal sentencing case of R v Berlinsky [2005] SASC 316, Doyle CJ noted that it would not be a proper exercise of the court’s power to tailor a sentence in order to affect a decision by the Minister, stating at [27]:

[A]t the end of the day the Judge had to impose an appropriate sentence having regard to the relevant circumstances. It would be wrong for the Judge to impose a lesser sentence than was appropriate on the basis that the shorter the sentence the better the prospects of the Minister permitting Ms Berlinsky to avoid deportation. And as to the fact of deportation, there was really nothing that the Judge could do (emphasis added). 10

Likewise in R v MAH [2005] NTCCA 17, Southwood J noted at [64]:

[T]he risk of deportation is a risk that is a product of an entirely separate legislative policy area of the regulation of society. To take such a risk into account is potentially to undermine that legislative policy. It also has the potential to produce a regime under which visitors or non-permanent visitors may be sentenced more leniently than Australians who have committed the same kind of offence. I agree with Steytler J that such a result cannot be a proper result in the administration of justice: Dauphin v R (supra) (emphasis added).

2.2.1 Sufficient evidence of risk of deportation

Where the offender’s liability to be deported 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’ 11 of the risk of deportation.

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. 12 This was treated as sufficient evidence of a 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. 13 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 (footnotes omitted; emphasis added).

In DPP v Yildirim [2011] VSCA 219, [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). 14 The sentencing Judge had stated of the offender’s immigration status ‘This 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. 15

It has been further emphasised that the sentencing Judge is not to ‘speculate’ on whether the offender will be deported. 16 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. 17

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. 18 In the federal sentencing case of R v UE [2016] QCA 58, the Queensland Court of Appeal considered, but did not decide on, 19 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 Guden, the 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). 20

Return to Top

2.3 Deportation as hardship to the offender

Courts have found that risk of deportation can be a hardship for the particular 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, 21 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.’ 22 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.’ 23

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. 24 Refshauge J held that this established sufficient hardship to be suffered by the offender at [66]–[68]:

In this case, the notice admitted into evidence shows that Mr Aniezue will be deported and there is no suggestion of an appeal. Neither counsel, especially for the Crown, who helpfully provided some of the relevant authorities, provided any legislation or other material suggestive of any other basis on which I should find other than that Mr Aniezue will be deported.

On the basis of this authority, 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]:

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).

2.3.1 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]:

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.

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. 25

2.4 Deportation as hardship to dependants of offender

Section 16A(2)(p) of the Crimes Act 1914 (Cth) requires a court to take into account, where relevant and know, ‘the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.’ 26

In Dong v DPP (Cth) [2016] VSCA 51, the impact of the sentence on the offender’s child was considered. In this case, the offender was pregnant at the time of sentence, however this was not made known to the court. The Victorian Supreme Court of Appeal found that the offender’s child, as well as the offender, were liable to be deported to China at the completion of sentence. The offender was resentenced. Whelan and Coghlan JJA held at [31]:

What has changed is the burden of imprisonment. The applicant’s anxiety about her deportation, and concern about how her life in China would be affected by the convictions, has been exacerbated by the fact that she now has a child who will also be deported. More importantly, the hardship which the applicant would inevitably have suffered as a result of isolation from her family has been exacerbated by the birth of her child, both in relation to her personal difficulties in caring for the child in custody and in relation to the anxiety and distress created as a consequence of the child’s isolation from the family in China (emphasis added).

In Islam v The Queen [2006] ACTCA 21, the Australian Capital Territory Court of Appeal considered the operation of a territory sentencing provision 27 identical to s 16A(2)(p) of the Crimes Act 1914 (Cth). The Court found that it would be contrary to sentencing principles to impose a shorter sentence merely to allow the offender to avoid the risk of deportation. 28 However, in obiter, the court recognised that deportation is a factor that could impact upon the offender’s family or dependants and ‘to this extent it may go too far to say that the probability of deportation is an irrelevant consideration in the sentencing process.’ 29

For further commentary on s 16A(2)(p) see Offender’s Family and Dependants.

Return to Top

3. 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 judges 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). 30

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).

In Guden v The Queen [2010] VSCA 196, the Court found that the offender’s prospects of deportation was a relevant sentencing factor. The statement of Street CJ in R v Chi Sun Tsui at 311 was distinguished and restricted to its statutory context of fixing a non-parole period. The Victorian Supreme Court of Appeal held at [19]:

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 (emphasis added). 31

Return to Top

 

Notes:

  1. See 3. 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 ([26], [31]) on which to base a conclusion on either the defendant’s deportation or whether this action would constitute additional punishment in the relevant sense.
  4. R v S [2001] QCA 531 applied in R v Mao [2006] QCA 99, [18] and Islam v The Queen [2006] ACTCA 21, [35]. See also R v Kansiz (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, McInerney, Anderson, McGarvie JJ, 7 December 1982) 8–9; R v Griffiths (1998, Unreported, Court of Appeal, Vic, No 153 of 1997, 29 April 1998). R v Kansiz and R v Griffiths are available from the Law Library of Victoria.
  5. Guden v The Queen [2010] VSCA 196, [27]. See also Darcie v The Queen [2012] VSCA 11, [29]–[46].
  6. Guden v The Queen [2010] VSCA 196, [27] citing R v Kwon [2005] NSWCCA 456, [14].
  7. Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370, 386; Muanchukingkan (1990) 52 A Crim R 354, 358; R v Do [2005] NSWCCA 258, [24].
  8. 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); Dauphin v The Queen [2002] WASCA 104, [22]; R v Mao [2006] QCA 99, [18]; R v Mah [2005] NTCCA 17, [41]; R v Binder [1990] VR 563, 571 (citing earlier comments by Street CJ to the same effect). 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.
  9. Affirmed in federal sentencing case R v MAH [2005] NTCCA 17, [41], [64]; 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].
  10. Doyle CJ’s comments were cited with approval in the territory sentencing case of Islam v The Queen [2006] ACTCA 21, [35].
  11. 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.
  12. R v Aniezue [2016] ACTSC 82, [62].
  13. See, eg, Alam v The Queen [2015] VSCA 48, [12]; Kim v The Queen [2016] VSCA 238, [48].
  14. Note: s 501 has been amended to insert the new provision of s 501(3A).
  15. 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.
  16. Darcie v The Queen [2012] VSCA 11, [45].
  17. Darcie v The Queen [2012] VSCA 11, [45].
  18. 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).
  19. R v UE [2016] QCA 58, [19].
  20. 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 state sentencing cases 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.’
  21. The Queen v Mohamed [2016] VSC 581, [47].
  22. R v El Ali [2013] VSC 172, [54] (Weinberg JA).
  23. R v El Ali [2013] VSC 172, [54] (Weinberg JA).
  24. R v Aniezue [2016] ACTSC 82, [62].
  25. DPP v Peng [2014] VSCA 128, [24].
  26. See Offender’s Family and Dependants for commentary on the judicial interpretation of ‘probable’ under s 16A(2)(p).
  27. Crimes (Sentencing) Act 2005 (ACT) s 33(o).
  28. Islam v The Queen [2006] ACTCA 21, [35]. Considered in R v Kamara [2016] ACTSC 294, [42].
  29. Islam v The Queen [2006] ACTCA 21, [37]. But see, eg, R v Aniezue [2016] ACTSC 82 where the court considered that deportation is a relevant sentencing consideration.
  30. 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].
  31. Affirmed in R v UE [2016] QCA 58, [15] (Philippides JA, Morrison JA and North J agreeing).