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R v Abdi

 

[2016] QCA 298

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v Abdi [2016] QCA 298

PARTIES:

R
v
ABDI, Ahmed Ali
(applicant)

FILE NO/S:

CA No 146 of 2016

DC No 194 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 28 April 2016

DELIVERED ON:

16 November 2016

DELIVERED AT:

Brisbane

HEARING DATE:

13 September 2016; 9 November 2016

JUDGES:

Fraser and Morrison and Philip McMurdo JJA

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

  1. Grant leave to appeal.
  2. Allow the appeal.
  3. Vary the order made in the District Court by, in lieu of the fixing of a parole release date, ordering that the applicant’s sentence of three years imprisonment be suspended as and from 26 October 2016 and that the applicant must not commit another offence punishable by imprisonment within a period of three years if the applicant is to avoid being dealt with under s 146 of the Penalties and Sentences Act 1992 (Qld) for the suspended sentence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCESENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on his own plea of guilty to one count of robbery in company with violence and sentenced to three years imprisonment with a parole date fixed after three months –where the applicant contends that the sentence is excessive for essentially a first time offender – whether the sentence was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant was convicted on his own plea of guilty to one count of robbery in company with violence and sentenced to three years imprisonment with a parole date fixed after three months – where the applicant’s Australian visa was cancelled pursuant to the Migration Act 1958 (Cth) because of his conviction – where the applicant was placed into immigration detention upon his release on parole in preparation for deportation – where the fact of detention and deportation prevents the applicant from complying with parole conditions – where the sentencing judge was aware of the applicant’s nationality and the possibility of deportation but no submissions were made as to their effect on structuring the sentence – whether the sentencing judge erred in not considering the relevance of deportation to the efficacy of ordering a parole release date

Guden v R (2010) 28 VR 288; [2010] VSCA 196, cited

R v Casey [2003] QCA 152, considered

R v Maslen [1998] QCA 198, considered

R v Moss [1999] QCA 426, considered

R v Schelvis; R v Hildebrand [2016] QCA 294, cited

R v Shrestha (1991) 173 CLR 48; [1991] HCA 26, considered

R v Smith [2004] QCA 31, considered

R v UE [2016] QCA 58, considered

COUNSEL:

The applicant appeared on his own behalf

D R Kinsella for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

  1. FRASER JA:  I agree with the reasons for judgment of Philip McMurdo JA and the orders proposed by his Honour.
  2. MORRISON JA:  I have read the reasons of Philip McMurdo JA and agree with those reasons and the orders his Honour proposes.
  3. PHILIP McMURDO JA:  This is an application for leave to appeal against a sentence imposed for an offence of armed robbery in company with personal violence.  The sentence was three years imprisonment with an order that the applicant be released on parole on 26 October 2016.  The applicant had spent only one day in presentence custody when these orders were made on 28 April 2016.  In effect therefore, he was ordered to be released after serving six months of his three year term.
  4. The applicant, who in this court is without legal representation, was represented by counsel at the sentence hearing where he pleaded guilty to this offence.  In his filed application for leave to appeal, the sole ground of appeal was said to be that the sentence was manifestly excessive.  But his written submissions indicated that he contested his conviction and the hearing of this application was adjourned so that he could obtain legal advice on that question.  When the hearing resumed last week, the applicant said that he did not wish to challenge his conviction.
  5. The applicant is a citizen of New Zealand.  By the operation of s 501(3A) of the Migration Act 1958 (Cth), his visa as a noncitizen of Australia has now been cancelled because, having been sentenced to more than 12 months imprisonment in this matter, he had a “substantial criminal record” and did not pass the “character test”, as those expressions are used in that provision.  Consequently he is about to be deported.  He has been in immigration detention since his release under this sentence on 26 October.  In these circumstances it will be impossible for him to comply with the conditions of his parole.
  6. For the reasons that follow, I conclude that his sentence was not manifestly excessive.  But that term should be immediately suspended, instead of his being subject to a parole regime with which he cannot comply.

The facts

  1. The facts of the offence, according to a statement which was tendered at the hearing, were as follows.  The offence was committed on 30 June 2015, in the company of a Mr Heywood.  The complainant was a Chinese national studying in Brisbane who conducted a business of buying and selling used mobile telephones.  Heywood rang the complainant on the afternoon of the offence, offering to sell to him two phones, which the complainant then agreed to buy for $1,700.  They arranged to meet that evening at a small shopping centre near the Yeronga train station.
  2. On that evening, the applicant and Heywood took a train to Yeronga and on arrival, removed some items from rubbish bins at the station as they left to walk to the shopping centre.  When they arrived there, Heywood telephoned the complainant who arrived shortly afterwards in his car.  The complainant had $1,900 in cash in his wallet.  Heywood had a knife and an empty beer bottle.
  3. When Heywood met the complainant in the car park of the shopping centre, the applicant was in the street near the car park and able to watch the meeting which occurred.  The complainant asked to see the phones but Heywood said that first he had to see the complainant’s money.  The complainant continued to insist upon seeing the phones, before noticing the knife in Heywood’s hand.  Heywood then said “just give me the money”.  At that point Heywood dropped a package which had been in his other hand.  The complainant saw that the package contained the beer bottle.  The complainant picked up the bottle and held it in front of him.  The two were about a metre apart as Heywood continued to threaten the complainant with the knife.  The complainant then started to run away, at which point Heywood went to the complainant’s car and opened a door.  This prompted the complainant to run back to Heywood and confront him.  Heywood knocked the bottle out of the complainant’s hand.  By this stage, bystanders were approaching and the complainant was telling them to call the police.
  4. At about this time, the applicant came from his nearby position near the car park and stood next to Heywood.  The complainant said to the applicant that he recognised him “from the other night”.  The complainant was correct: the applicant had had dealings with the complainant some days prior to the offence about the sale of another phone.  The applicant replied: “I told you I would come back for you.  Did you think I was joking?”  The applicant told the bystanders that the complainant owed them money.
  5. The complainant then saw that his wallet had fallen on the ground and he ran towards it to pick it up.  Heywood pursued the complainant and upon reaching him, he kicked the complainant, causing him to drop his wallet which scattered money on the ground.  Heywood pushed the complainant onto the bonnet of his car as they struggled for the wallet and the money.  The applicant began picking up the money from the ground.  The applicant and Heywood then fled towards the train station, escaping before the police arrived.  The complainant recovered his wallet and the remainder of his money.  About a quarter of his $1,900 had been stolen.  Fortunately he was uninjured.
  6. Heywood’s fingerprints and blood were on the door of the complainant’s car.  The applicant was able to be identified through checks of the mobile telephone number with which the complainant had exchanged text messages in his dealings with the applicant a few days earlier.  The applicant and Heywood were apprehended by police on 2 July 2015.  They each declined to be interviewed and were then charged.

The applicant’s background

  1. The applicant was born in Somalia in 1984.  He was aged 31 at the time of the offence and 32 when sentenced.  As the sentencing judge discussed, the applicant had endured a traumatic childhood in Somalia, losing both of his parents when he was young and being taken as a child to a refugee camp in Nairobi.  Some time later he was accepted by New Zealand as a refugee and moved to that country with his stepmother.  He became a New Zealand citizen.  In 2009 he came to Australia where he obtained work as a meatworker.  He began using drugs but for a while, he managed to discontinue that practice.  He married in January 2012 and a child was born to the marriage some months later.  He was reintroduced to cannabis and as a result of using that substance and also alcohol, his wife and her parents effectively excluded him from the household.  He moved to Queensland where he was homeless and using cannabis and methylamphetamines as well as alcohol.  It was in these circumstances that, a few days prior to the offence, he attempted to sell a mobile phone to the complainant.  He had some criminal history but limited to minor offences, none of which had attracted a custodial sentence.

Reasons of the sentencing judge

  1. The applicant was sentenced with Heywood.  After discussing the personal circumstances of each offender, the judge said that although Heywood was armed with a knife, he accepted that the applicant “didn’t necessarily know that [Heywood] had a knife, but did know that items, including a bottle, had been taken from a bin, which might well have been used as a weapon.”  The judge added:

“I don’t think [the applicant] had any real regard for the complainant and whether or not Mr Heywood may have had a knife or not.  Importantly, [the applicant] stayed well clear until well after the robbery had commenced, and from my own observations of the CCTV footage, played a far lesser role.  Certainly I didn’t see [the applicant] at any stage inflicting physical violence on the complainant, although it’s certainly clear that he was there and gave support … .”

  1. The judge described this as “a moderately sophisticated robbery … compared to many street robberies”.  The offenders knew that the complainant would be carrying a large sum of cash and the attack upon the complainant persisted for some time.  The judge described it as “a bad case of violence” although the complainant was not ultimately injured.
  2. Heywood had spent about 10 months in prison which could not be declared as presentence custody but which his Honour decided should reduce his sentence.  Instead of sentencing Heywood to a term of four years, suspended after about 16 months, his Honour took account of the 10 months of custody by imposing a term of three years and requiring Heywood to serve another six months before being released on parole on 28 October 2016.
  3. In the applicant’s case, his Honour concluded as follows:

“Mr Abdi, your sentence is relatively more straight forward.  You have only a minor criminal history.  Your role was very significantly less and I’m satisfied that fairly probably you were significantly influenced by Mr Heywood, who was an older man and had, I think, probably some sway over you.  Because of your personal circumstances, you were probably very easily influenced.”

  1. After informing the applicant that he should report to a parole office within 24 hours of his release, the judge told the applicant that if he committed another offence during his parole period he would go back to prison.  He then added:

“The other thing about you, Mr Abdi, is unless authorities decide otherwise and take you back to New Zealand or something, you won’t be able to leave … Queensland, I think, without their permission.”

The applicant’s arguments about the facts

  1. The applicant argues that he should have been given a head sentence in the range of six to 12 months, none of which to be spent in custody.  But this was advanced in a written argument which presented a version of the facts which was inconsistent with that which his counsel had accepted at the sentencing hearing.  It was that written argument which resulted in an adjournment of the original hearing in this court.  Although ultimately the conviction was not challenged at the resumed hearing, the applicant continued to maintain that “the schedule of facts presented to his Honour was substantially incorrect”, due to the “negligent performance of [my] lawyers”.
  2. The applicant referred to that part of the transcript of the sentencing hearing where the allocutus was administered.  In the usual way, the judge’s associate there asked the applicant whether he had anything to say as to why sentence should be not passed upon him, to which the applicant said “No” and the judge then said that he would hear from the applicant’s counsel in due course and called upon the prosecutor.  The applicant now says that this passage demonstrates incompetence by his lawyers, in that he was not allowed by them to present the true facts, but instead was merely allowed to answer the associate’s question as he did.  That submission cannot be accepted.  The transcript shows that the applicant’s counsel, in the usual way and without objection, made a number of statements of fact in the applicant’s favour.  In particular, his counsel told the judge that she was instructed that whilst the applicant “knew that there was going to be the confrontation and [the] trying to take the money, he didn’t know there was going to be a knife”.  In response to that statement, his Honour said that he inferred from the schedule of facts, which the applicant’s counsel had said were agreed, that bottles were taken from the bin at the railway station on the way to the scene and that they were taken “to use as weapons if need be”.  The applicant’s counsel appeared to accept that inference.  On the agreed facts set out in the document tendered by the prosecutor, that inference was compelling.
  3. In discussing that subject with the sentencing judge, the applicant’s counsel said that she had spoken to the applicant “about disassociating [himself from the offence being committed by Heywood]” and that the applicant had instructed that “he should have done that and he can’t explain, even to himself, why he didn’t.”  She told the judge that the applicant was aware “that there was going to be some confrontation over the getting of the money”.  She also said that the applicant accepted that he had told Heywood of the complainant as somebody who sold mobile phones.  But she submitted that there wasn’t a degree of preplanning in this case as to “who was doing what or what was going to occur”.
  4. The applicant, of course, was present throughout the sentencing hearing.  The transcript of that hearing shows that his counsel conscientiously argued his case, to the extent possible consistently with his plea of guilty, the CCTV footage which showed the applicant participating in the encounter with the complainant as I have described it and with the schedule of facts.  Undoubtedly the applicant was a participant in this robbery and had planned it in conjunction with Heywood.  There was little in the schedule of facts which was not established or able to be established by other evidence such as evidence from the complainant.  In the applicant’s ultimate submission in this court, no material fact was identified as one which ought to have been disputed, consistently with the applicant’s plea of guilty.  Consideration must now be given to the one ground of his proposed appeal, which is that the sentence is manifestly excessive.

Was the sentence manifestly excessive?

  1. The applicant argues that his sentence was too heavy for a person who was, in effect, a first offender.  It must be accepted that the applicant had no criminal history of any significance.  And there were other mitigating factors, such as his plea of guilty and, as the case was presented to the sentencing judge, his genuine remorse.  Nevertheless it cannot be accepted that the permissible range for the applicant’s offence was as low as the applicant argues.
  2. The sentencing judge was referred to a number of cases which were said to be comparable.  One of those was R v Moss[1] where a sentence of six years imprisonment with a nonparole period of two years was replaced by one of five years imprisonment on appeal.  That applicant, who was aged only 18, had pleaded guilty to an exofficio indictment charging him with robbery of a shop when armed with a knife.
  3. At the sentence hearing, the applicant’s counsel referred to R v Casey,[2] R v Smith[3] and R v Maslen.[4]  In the first of those cases, a head sentence of three years, suspended after four months, was not disturbed on appeal.  The applicant had pleaded guilty to two counts of armed robbery in company.  He had no criminal history prior to the dates of the subject offences.  He and his cooffenders, one of whom was his mother, lacked money to buy groceries and robbed a local store and, on the occasion of the other offence, a service station.  In Smith, the applicant was aged 17 when he took part in an armed robbery in company with three others of a convenience store.  Money and cigarettes were stolen after one of the offenders struck a person with a rifle butt and cut another person with a knife.  The applicant waited in the car whilst the robbery took place but knew that a weapon would be used although he had thought only a baseball bat.  He was sentenced to two years imprisonment suspended after three months which this court held was not manifestly excessive.  That offender was, of course, considerably younger than the applicant.  In Maslen the applicant had been sentenced to two years imprisonment and a recommendation for parole after nine months for his role in an armed robbery which involved a deprivation of liberty.  He was then aged 17 years.  An attendant at a newsagency was threatened with a sawn off rifle and a knife by the applicant and two others.  After stealing cigarettes, they required the attendant to take them away from the scene in his van.  That sentence was not disturbed on appeal.  Again that offender was considerably younger than the applicant and the outcome was that the sentence was held to be not excessive, rather than indicating that a higher sentence could not have been imposed.
  4. It is unnecessary to refer to other cases which were cited in the respondent’s argument.  The cases which I have discussed confirm that a head sentence of three years was within the range for the applicant’s offence.  And he had the benefit of an order that he be released after serving only onesixth of that term.  His sentence was not manifestly excessive.

Parole and deportation

  1. At the sentencing hearing, the prospect of the applicant being deported, in consequence of this matter, was discussed.  The sentencing judge asked the applicant’s counsel “What’s his status in Australia?”, to which counsel answered that the applicant did not know what was going to happen to him but that he was “concerned about deportation”.  She told the judge that she “didn’t feel confident enough to give him any advice about [that question]”.  His Honour then recalled, correctly, that there was a recent decision of this court which could be relevant, which was R v UE.[5]  Counsel for the applicant responded simply that the applicant was not a resident of Australia and may or may not be “an actual resident of New Zealand”.
  2. The discussion then turned to the appropriate sentence and it was the applicant’s counsel who suggested that a head sentence of three years was appropriate.  His Honour interrupted to say that that was his view and then asked what he “should then do with him?”  His Honour said “I’d probably give him parole.  I’m a bit worried about him”.  Counsel replied that she was “not asking for a suspension”.  His Honour added that “apart from anything else, supervision would help – might help him with employment, all sorts of things.”  Again counsel responded that she was not seeking a suspended sentence but instead was “asking for parole”.
  3. After discussing other matters with the applicant’s counsel and the prosecutor, the judge said immediately before his sentencing remarks:

That recent decision of the Court of Appeal, it’s R v UE [2016] QCA 58 … I don’t think it’ll matter in the circumstances of this case because, at worst, it seems he’d be deported to New Zealand and it doesn’t seem to me that that places him in a significantly worse position than he’s in at the moment.  He’s – it’s tragic that he’s so unsupported in any way in the community, even within his community – within the wider Somali community or anything.”

  1. His Honour thereby considered, consistently with R v UE, whether there was a demonstrated hardship from a likely deportation.  In that case, Philippides JA, with the agreement of Morrison JA and North J, said:

[16]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.”

Philippides JA there followed the judgment of the Victorian Court of Appeal in Guden v R,[6] which held that the risk of deportation will be relevant if there is evidence which is “sufficient to permit a sensible quantification of that risk to be undertaken” as well as proof that deportation in that prisoner’s case “would in fact be a hardship”.[7]

  1. As Fraser JA has recently discussed,[8] in New South Wales and Western Australia a different view is taken, which is that the prospect of deportation is irrelevant.[9]
  2. The present case does not require a consideration of whether the prospect of deportation is a mitigating factor.  There was no evidence in this case that deportation would cause hardship in either of the respects which in R v UE was held to be potentially relevant.  This case raises a different question, which is whether the likelihood of deportation made it appropriate to order that the applicant be released on parole.
  3. Before going to the Queensland legislation, the relevant terms of the Migration Act should be discussed.  By s 501(3A), the responsible Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass “the character test” because he or she has a “substantial criminal record”.  By s 501(6), a person does not pass the character test if that person has a substantial criminal record.  Section 501(7) relevantly provides that for the purposes of the character test the person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.  Consequently, the imposition of this sentence had the immediate legal consequence of requiring the Minister to cancel the applicant’s visa.
  4. Section 501CA of the Migration Act permits the Minister to revoke the original decision to cancel a visa if the Minister is satisfied that the person does pass the character test or that there is another reason why the original decision should be revoked.[10]  If the original decision is revoked, it is taken not to have been made.[11]  A decision by the Minister not to revoke the original decision is subject to a merits review before the Administrative Appeals Tribunal.[12]  The Minister’s discretion to revoke the original decision is undoubtedly broad, the power being exercisable if there is a reason why the original decision should be revoked.  In the present case there was no evidence suggesting any such reason, just as there was no evidence of hardship in the sense which was discussed in R v UE.
  5. Therefore as at the date of the sentence, the applicant was bound to be deported unless there was some reason, not indicated by the evidence, which could persuade the Minister or the AAT otherwise.
  6. By s 160B of the Penalties and Sentences Act 1992 (Qld), a court must fix a date for an offender to be released on parole if the sentence is for three years or less and is not for a serious violent offence or a sexual offence.  Pursuant to that provision, the sentencing judge fixed the date for the applicant’s release on parole at 26 October 2016.  In turn that required the chief executive, under s 199 of the Corrective Services Act 2006 (Qld), to issue a “court ordered parole order” for the prisoner according to the judge’s order.  However s 160B would not have applied if the court had ordered that the whole or a part of the term of imprisonment be suspended.[13]
  7. Section 200 of the Corrective Services Act 2006 (Qld) prescribes the conditions of any parole order as follows:

“200Conditions of parole

  1. A parole order must include conditions requiring the prisoner the subject of the order—
  1. to be under the chief executive’s supervision—
  1. until the end of the prisoner’s period of imprisonment; or
  1. if the prisoner is being detained in an institution for a period fixed by a judge under the Criminal Law Amendment Act 1945, part 3—for the period the prisoner was directed to be detained; and
  1. to carry out the chief executive’s lawful instructions; and
  1. to give a test sample if required to do so by the chief executive under section 41; and
  1. to report, and receive visits, as directed by the chief executive; and
  1. to notify the chief executive within 48 hours of any change in the prisoner’s address or employment during the parole period; and
  1. not to commit an offence.
  1. A parole order granted by a parole board may also contain conditions the board reasonably considers necessary—
  1. to ensure the prisoner’s good conduct; or
  1. to stop the prisoner committing an offence.”

By s 200(3) the prisoner must comply with the conditions included in a parole order.

  1. Section 200 does not require a specific condition that the prisoner remain in Queensland.  But at least most of the conditions prescribed by s 200(1) could not be satisfied by the applicant if he is deported.  He could not then be under the chief executive’s supervision or report and receive visits as directed by the chief executive.  This court was informed by the respondent that there is no arrangement with New Zealand under which a prisoner can be subject to the regime of a Queensland parole order in that country.
  2. By s 201(2) of the Corrective Services Act, the chief executive may suspend a parole order if he or she reasonably believes that the prisoner has failed to comply with the order or “is preparing to leave Queensland, other than under a written order granting the prisoner leave to travel interstate or overseas.”  If a parole order is suspended, the chief executive may issue a warrant for the prisoner’s arrest.[14]
  3. Similarly, by s 205(2) of the Corrective Services Act, a parole board may suspend or cancel a parole order if it reasonably believes that the prisoner has failed to comply with the order or is preparing to leave Queensland, other than under an order permitting him or her to do so.  If a prisoner’s parole order is suspended or cancelled by the board, it may issue a warrant for the prisoner’s arrest and the prisoner must be taken to a prison, if the order is cancelled, to serve the unexpired portion of the prisoner’s period of imprisonment.[15]
  4. Section 213 of the Corrective Services Act permits the Queensland Parole Board to grant leave to a prisoner to travel overseas for a stated period “for compassionate purposes in exceptional circumstances”.  That power would not be exercisable in the present case and there is no other provision by which he could be excused from performing the conditions of his parole which require his presence in Queensland.
  5. It can be seen then that the effect of the orders in the present case was to subject the applicant to a statutory regime with which he would be unable to comply if, as was at least very probable, he was deported upon his release from prison.  Moreover the applicant’s noncompliance with those conditions would expose him to the consequence of a cancellation of his parole so that he might be required to serve the whole of his three year term.  And the recognised benefits of the parole of prisoners, in the applicant’s case, were of no practical relevance.
  6. In R v Shrestha[16] the High Court discussed the potential relevance of a prisoner’s likely deportation to a consideration of his possible parole.  The respondent in that case had been convicted of three offences of conspiring to import heroin, for which he was sentenced to 12 years imprisonment (with lesser concurrent sentences on other counts).  The sentencing judge declined to order that he be eligible for parole.  The Western Australian Court of Criminal Appeal reduced his sentence to nine years and ordered that he be eligible for parole.  That was not an order, as in the present case, that the prisoner be released on parole.  The prosecution applied for special leave to appeal, contending that it could never be open to a court to determine that it is appropriate that a convicted person be eligible at some future time for release on parole, if that convicted person is within a particular category of offender to which the respondent belonged, namely offenders who were foreigners having no ties to Australia and whose sole purpose in entering Australia was to commit serious crimes.[17]
  7. By a majority special leave to appeal was refused.  But in both the majority judgment (Deane, Dawson and Toohey JJ) and the dissenting judgment (Brennan and McHugh JJ), the merits were fully considered.  The majority rejected the applicant’s argument, holding that it could be open to a court to order that an offender be eligible for parole although he was within that category.  In their view, it was important that the decision whether to grant parole would be made in that case by the parole authority, and not by the sentencing judge, after the prisoner had served a significant part of the sentence and upon up to date information about the relevant circumstances.[18]  The majority distinguished cases where the sentencing judge orders an eligibility for parole from those cases, such as the present one, where the sentencing judge orders the offender’s parole.  Cases of the present kind were specifically put on one side in the majority judgment.[19]
  8. The majority judgment discussed an aspect of the submissions for the prosecution which was that “since deportation will almost certainly render inappropriate or futile the supervision and other safeguards which control and regulate release on parole, the system cannot, and should not be concerned to, cope with such offenders.”[20]  As to that submission, their Honours said:[21]

“There is obviously something to be said for the view that it is inappropriate that a person should be eligible to be released on parole in circumstances where his immediate deportation would, if he were released, remove him from the reach of the local authorities with the result that effective supervision would be impossible and a return to custody in the event of breach of the conditions of parole would be effectively unenforceable.  There are, however, two related reasons why the likelihood of deportation if a convicted person is subsequently released on parole should not, of itself, compel a sentencing judge to conclude that it is inappropriate that that person should be eligible to be considered for release on parole at some future time.

The first reason is that 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.  It is far from evident that the disadvantages to the community which would be involved in allowing a person released on parole to remain within Australia under the supervision of the relevant parole authority until the expiry of his parole will necessarily outweigh the disadvantages involved in keeping him in gaol throughout the whole of the period in which, if he were not a foreigner, he would be released on parole. …

The other reason … relates to the function of the sentencing judge.  As has been said, 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. … More important, once it is recognized that circumstances may well exist in which, notwithstanding those factors, a parole authority will be justified in releasing a foreign offender of the particular class on parole, those factors do not, of themselves, compel a sentencing judge to decide that it is inappropriate that such an offender should be eligible to be even considered for parole at that time.”

(emphasis added).

Importantly, their Honours there recognised the relevance of the likelihood of deportation to the parole authority in deciding whether the prisoner should be actually released on parole.  In this case, that decision fell to the sentencing judge, by the operation of s 160A and s 160B of the Penalties and Sentences Act.

  1. The minority judgment of Brennan and McHugh JJ also recognised the relevance of the likely deportation of a prisoner to the question of parole and even to a question of whether a sentencing court should order that the offender be eligible for parole.  They held that a sentencing court had to consider whether the purposes of parole could be fulfilled if an eligibilityforparole order was made and said that where those purposes of parole were unlikely to be fulfilled, the case would not be one in which an eligibilityforparole order would be appropriate.[22]  Their Honours described the relevance of likely deportation as follows:[23]

“If an offender, who is not and is not likely to become a part of the Australian community, comes to this country and attacks the peace and order of the community by the commission of a serious crime, the public interest may be served by imposing a custodial sentence on him, but will seldom be served by his early release in favour of his ‘rehabilitation through conditional freedom’.

So to hold is not to subordinate the proper exercise of a judicial discretion to the exigencies of executive policy.  Justice according to law cannot be moulded by the exercise of executive power.  But the administration of justice according to law cannot be blinkered merely because the likelihood of the occurrence of a material fact depends on the implementing of executive policy; much less can it ignore the laws which prescribe a regime the proper understanding of which is essential to the informed performance of the court’s function.

It would be erroneous for a court imposing a sentence for a serious crime to make an eligibilityforparole order on the footing that it is likely that the offender will be able to benefit from his parole or that the community will be benefited by his rehabilitation through parole when the offender, on his release from custody, is likely to be and to continue to be an illegal entrant and thus liable to be deported.

To take cognizance of the policy which affects the exercise of a power to deport is to have regard to a circumstance relevant to the evaluation of these matters.  To say that the policy may change is merely to say that the prospect of deportation is not a certainty.  If, forming the opinion that the offender is likely to be deported were he released on parole, the court determines that an eligibilityforparole order should not be made, the court has not subordinated its function to the executive power; it has simply taken account of the effect of a likely and valid exercise of an executive power on the offender’s availability to serve the remainder of his sentence on parole – a consideration which is material to the proper exercise of the court’s discretion.

(emphasis added)

  1. As each of the judgments in Shrestha explained, the likely deportation of an offender is relevant to a decision of whether an offender should be released on parole.  In particular, as the majority said, the likelihood of deportation and the difficulty or even impossibility of effective supervision and enforcement of parole conditions are factors which are properly taken into account in this context.  Whether those matters are relevant in the different context of a decision whether to order that the offender be eligible for parole does not arise for consideration here.
  2. In my respectful view, they were therefore relevant and necessary considerations in the present case.  It must be noted that his Honour did not have the benefit of submissions by reference to the legislation which I have discussed.  It must also be noted that it was his Honour who properly alerted the parties to the question of whether the likely deportation should be a mitigating factor in this case.  As I have said, that is not the present question.  Rather it is whether his Honour erred by not considering the relevance of the likely deportation to the efficacy of a court ordered parole and the potential consequences of that to the prisoner.
  3. In my view it must be concluded that there was thereby an error in the exercise of the sentencing discretion.  In this case, the likelihood of deportation was high, not only because of the applicant’s circumstances but also because the time until his release was only six months.  I would vary the sentence by ordering that the sentence of three years be suspended from 26 October 2016 for an operational period of three years.

Orders

  1. I would order as follows:
  1. Grant leave to appeal.
  2. Allow the appeal.
  3. Vary the order made in the District Court by, in lieu of the fixing of a parole release date, ordering that the applicant’s sentence of three years imprisonment be suspended as and from 26 October 2016 and that the applicant must not commit another offence punishable by imprisonment within a period of three years if the applicant is to avoid being dealt with under s 146 of the Penalties and Sentences Act 1992 (Qld) for the suspended sentence.

Footnotes

[1] [1999] QCA 426.

[2] [2003] QCA 152.

[3] [2004] QCA 31.

[4] [1998] QCA 198.

[5] [2016] QCA 58.

[6] (2010) 28 VR 288; [2010] VSCA 196.

[7] (2010) 28 VR 288; 295 [29].

[8] R v Schelvis; R v Hildebrand [2016] QCA 294.

[9] See the cases cited in Schelvis by Fraser JA at [72]

[10] s 501CA(4)(b).

[11] s 501CA(5).

[12] s 500(1)(ba)

[13] Penalties and Sentences Act 1992 (Qld) s 160A(6)(c).

[14] s 202.

[15] s 206(3)(b).  That is subject to s 211(3), by which the Queensland Parole Board may direct that the prisoner serve only part of the unexpired portion of the period of imprisonment.

[16] (1991) 173 CLR 48; [1991] HCA 26.

[17] (1991) 173 CLR 48, 67.

[18] (1991) 173 CLR 48, 68.

[19] Ibid.

[20] (1991) 173 CLR 48, 70.

[21] (1991) 173 CLR 48, 71-73.

[22] (1991) 173 CLR 48, 61.

[23] (1991) 173 CLR 48, 64-65.

Close

Editorial Notes

  • Published Case Name:

    R v Abdi

  • Shortened Case Name:

    R v Abdi

  • MNC:

    [2016] QCA 298

  • Court:

    QCA

  • Judge(s):

    Fraser JA, Morrison JA, Philip McMurdo JA

  • Date:

    16 Nov 2016

Litigation History

Event Citation or File Date Notes
Primary Judgment DC194/16 (No Citation) 28 Apr 2016 Date of Sentence
Appeal Determined (QCA) [2016] QCA 298 16 Nov 2016 -

Appeal Status

{solid} Appeal Determined (QCA)