R v Kaisara[2022] QDC 270

DISTRICT COURT OF QUEENSLAND

Contents

Introduction2

The defendant’s background2

Submissions on sentence3

Sentencing remarks3

Principles4

Evidence on reopening5

Was there a factual error?6

Was the error one “of substance”?7

Does the error call for a material alteration of the sentence?7

Consideration8

Conclusions10

Introduction

1. [1]
   On 1 December 2021, the defendant was convicted after a trial before a jury of four counts of carnal knowledge of a child under 16 and two counts of rape.  On 21 October 2022, I sentenced him to five years’ imprisonment on one count of rape and to lesser terms for the other offences.  I ordered that his sentence be suspended for an operational period of five years after serving two years and 10 months.
2. [2]
   The Crown has now applied to re-open the sentence on the ground that I decided the sentence based on a clear factual error of substance.^[1]  The asserted error, in essence, was that I accepted a submission on behalf of the defendant to the effect that, if he were given a parole eligibility date instead of having the sentence suspended, he would never be granted parole.  Counsel for the defendant accepts that I made that error but, notwithstanding that concession, I shall consider whether it is correct.

The defendant’s background

1. [3]
   The defendant is not an Australian citizen.  He is a New Zealand citizen.  Having committed the serious offences for which he was convicted, his residency visa in Australia must be cancelled.^[2]  It appears to be inevitable that, on his release from custody (whether due to suspension, parole or the end of his sentence), he will be taken into immigration detention.  He will then likely be deported to New Zealand, except in the event (admittedly unlikely) that the Minister for Immigration were to reinstate his visa.^[3]

Submissions on sentence

4. [4]
   At the sentencing hearing, counsel for the defendant made the following relevant submissions.

As your Honour would be aware, deportation is a relevant factor to take into account on sentence.  Mr Kaisara is a New Zealand citizen.  He will be deported and he will be deported back to New Zealand where he has no family, no friends and no supports.  His parents are in Samoa, all of his family and friends and extended family are in Australia.  So he would be going back to the country on his own.  Significantly too, as I’ll turn to in a moment, he’s had positive progress in custody and he would not realise parole and he would serve every single day in custody prior to his deportation because he will never get parole.^[4]

Despite his positive progress and he would never realise parole because he will be deported, he will be a person who serves all of his sentence and that’s a factor to take into account and reduce a sentence and reflect the sentence accordingly.  My ultimate submission is to see something that, primarily, gets him released and doesn’t unduly punish but provides accountability.  What your Honour could do, considering that he has spent almost an entire year in custody now, is your Honour could give him a five-year sentence and suspend it after two years and two months and that would given him three years in custody.  He would be released and he would be deported immediately upon his release.  As I said, he would serve every day of any kind of sentence that your Honour imposes upon him.  My submission is, of course, predicated on the sentence that six years would otherwise be an appropriate sentence.^[5]

If your Honour is against me on that basis and wherever your Honour starts as an appropriate sentence, you should have to reduce the head sentence to reflect the fact that he will serve every day in custody and then be immediately deported.^[6]

5. [5]
   At the conclusion of the defence submissions, I asked the prosecutor if he had any reply.  He said he did not, thus not correcting anything in defence counsel’s submissions.

Sentencing remarks

6. [6]
   In my sentencing remarks, I concluded that I thought the defendant had good prospects of rehabilitation, although he would not be rehabilitated in Australia because the likelihood was that he would be deported to New Zealand on his release from jail.  For that reason and having regard to the circumstances of the offences, the defendant’s lack of criminal history, his age and antecedents and other factors, I did not accept the prosecutor’s submission that a sentence of eight years’ imprisonment would be appropriate.  Rather, I said:

… the appropriate sentence is six years’ imprisonment.  I accept, as your counsel has submitted, that your imprisonment is harsher for you in one sense and will continue to be harsher for you.  You have, in the past, while in jail, had to sleep on a mattress on the floor for a while.  You have suffered lockdowns that have been prevalent in jails during COVID and flood times, and you are in a prison where you cannot look forward to being released from jail and then going back into the community straight away because you will be deported and, no doubt, before your deportation you will be in immigration detention for some period.

Those factors mean that I should, I think, appropriately recognise the difficulties and the more harsh nature of imprisonment for you than might normally be the case by mitigating that sentence a little bit.  You have now been in prison for some 10 and a-half months pending a sentence.  Ordinarily on a six year sentence, you would serve about three years in custody, taking into account that period that you have already served.  It seems to me that in all the circumstances, the appropriate mitigation for the sentence is to reduce it by eight months to five years and four months’ imprisonment, and that I should declare the time that you have already served in custody.  …  I will order that your sentence be suspended because you would not be able to have parole, given your likely deportation, after serving …^[7]

7. [7]
   The prosecutor then interrupted to point out that I could not suspend a sentence of more than five years.  I accepted that correction and said:

I need to take into account the immigration issue … in determining whether parole eligibility is even relevant and I don’t think it would be appropriate for him to serve the full sentence, so in that case, I might review, as Ms Hillard submitted – I might reduce the sentence, the head sentence, to five years.^[8]

8. [8]
   The prosecutor submitted that I should not do that, as it would be improperly reducing the sentence to counteract another law and particularly to avoid deportation.^[9]  I said I would not be doing that, but would be reducing the sentence to take account of the fact that he would otherwise serve the entire period.  The prosecutor said that, once he is released, he would go into immigration detention until he leaves.  I responded, “But he will not get parole.”^[10]
9. [9]
   Counsel for the defendant then submitted that, if I thought that five years and four months was an appropriate head sentence, I could reduce the head sentence to five years and suspend it four months later than I otherwise would.  That is effectively what I did, by suspending the five year sentence after serving four months more than half of the sentence.^[11]

Principles

10. [10]
    Section 188 relevantly provides that if a court has, in a criminal proceeding, imposed a sentence decided on a clear factual error of substance, it may reopen the proceeding.  If it does reopen the proceeding, it may resentence the offender to a sentence that takes into account the factual error and it may amend any relevant conviction or order to the extent necessary to take into account the sentence imposed on the resentencing.

11. [11]
    In R v Davis,^[12] Thomas JA (with whom McMurdo P agreed) considered what is a “clear factual error of substance,” saying:

Clearly the legislature has now given to the courts a useful tool which will enable both legal and factual errors to be corrected. The power is not to be hedged by unnecessary legal distinctions. I do not think that the term "clear factual error of substance" presents any particular difficulty. The use of the word "clear" suggests that the court should not act unless the error is clearly shown, and the words "of substance" suggest that this exceptional procedure should not be invoked in relation to pettifogging points or relatively minor mistakes. Those words suggest to me the need for something of sufficient importance as to be likely to call for some material alteration of the sentence.

12. [12]
    That passage, or excerpts from it, has subsequently been applied by the Court of Appeal,^[13] the Supreme Court^[14] and this Court.^[15]
13. [13]
    Additionally, in R v Cassar; ex parte Attorney-General (Queensland),^[16] the Court of Appeal reiterated that the criteria for reopening a sentence set out in s 118 require a strict approach to their applicability; otherwise the integrity of the sentencing process will be imperilled.  Reopening would only very occasionally be justified.

Evidence on reopening

14. [14]
    In order to demonstrate the asserted factual error, the prosecutor tendered an affidavit by the Deputy President of the Parole Board, Peter Shields.  Mr Shields gave evidence that a prisoner whose visa has been cancelled and who is subject to deportation is eligible to apply for parole.  The Board routinely considers applications for parole from such prisoners and does not have a policy of refusing parole because a prisoner’s visa has been cancelled.  Applications are treated on their merits, but subject to the following.
15. [15]
    The Board considers the risk to the safety of the community.  The Board considers that “community” extends beyond the Queensland community to interstate and international communities.  It also takes into account any arrangements for the supervision of offenders in the country to which a prisoner will be deported.  For offenders deported to New Zealand, the Board is aware that there is a regime for supervision under the Returning Offenders (Management and Information) Act 2015 (NZ) (the ROMIA).  Mr Shields exhibited a copy of a publication by the New Zealand Department of Corrections headed “Returning Offenders” that is apparently provided by that authority to offenders deported to New Zealand and answers “frequently asked questions” about the supervision of returning offenders.
16. [16]
    Conditions of parole ordinarily included by the Board for such offenders include the following:

You are approved to travel interstate and overseas whilst in the custody of the Australian Border Force.

If you return to Australia after being removed, you are to report in person to your nearest Queensland Community Corrections office within 48 hours.

17. [17]
    The ROMIA relevantly provides that a person who has been deported to New Zealand and has been convicted in a foreign country of an offence that constitutes an imprisonable offence, has been sentenced for that offence to imprisonment for more than one year and has returned to New Zealand (whether deported or voluntarily) within six months of his or her release from custody (whether a prison or an immigration facility) must provide contact details immediately to the police and must, within six months of return to New Zealand, be served with a notice that the Commissioner of Police has determined that the offender is a “returning prisoner”.  A returning prisoner must report to a probation officer within 72 hours of being served such a notice and is then subject to standard release conditions under the Parole Act 2002 (NZ) and any special conditions imposed by a court.  The period of those conditions, where the sentence was one of between two and five years, is one year.
18. [18]
    The standard release conditions provided in s 14 of the Parole Act are very similar to an amalgam of the conditions of parole in Queensland under s 200 of the Corrective Services Act 2006 and the conditions of probation under s 93 of the Penalties and Sentences Act 1992.  
19. [19]
    The effect of this evidence is that, if an offender whose visa has been cancelled is, upon sentence, ordered to be released on parole (or to have a parole eligibility date), if and when he or she is released on parole, the offender will be taken into immigration detention, where there is no effective supervision by the Queensland parole office.  Assuming that the cancellation of the visa is not revoked and the person is deported (or voluntarily returns) to New Zealand, then the person will be subject to supervision by the New Zealand probation office for between six months and five years, depending on the length of the sentence imposed by the Queensland court.  Exactly the same will occur if a person is released from prison before completion of the sentence as a consequence of the suspension of the imprisonment pursuant to the order of the sentencing court.

Was there a factual error?

20. [20]
    In R v Cassar,^[17] the Court of Appeal said that the circumstance that a particular expectation was entertained by the sentencing judge may be a relevant fact, but the content of the expectation – in that case, that the defendant could reasonably expect parole – was not a matter of fact, but a forecast or prediction.  It went on to say that “it is not possible to characterise the subject matter of a forecast or expectation entertained by a judge in relation to parole as covering matters of existing fact.”
21. [21]
    Here, the error alleged by the Crown is that, even if I were to order a parole eligibility date, the defendant would never be granted parole and would serve the full term of his sentence in custody.  The correct fact is that he may be granted parole on or after the eligibility date, despite the fact that, upon his release on parole (if granted), he would inevitably be placed immediately into immigration detention pending his likely deportation to New Zealand.  Counsel for the defendant conceded that that was the case and therefore my sentence fell within s 188(1)(c).

22. [22]
    On one view, notwithstanding that concession, it was a fact that I expected that the defendant would never be granted parole, but the content of that expectation was not a matter of fact, but a forecast or prediction.  If so, then the sentence did not take into account a factual error, but an incorrect expectation or forecast and there is no basis on which the Court can reopen the sentence.
23. [23]
    However, this case is not quite the obverse of the facts in Cassar because, in that case, the expectation was later proved not to have been fulfilled due to the defendant’s conduct after being sentenced:  his behaviour led the Parole Board to refuse parole.  In this case, the expectation was that he would never be granted parole (which appears to be the obverse of Cassar), but that expectation was not on the basis of his future conduct but on the basis that his non-citizenship and the cancellation of his visa gave rise to the practical inevitability of his being placed in immigration detention upon his release from prison and therefore meant, at the date of sentence, that he could never fulfil the conditions of parole and therefore would not be granted parole.
24. [24]
    The distinction is certainly a fine one.  It is a distinction that has not been drawn or considered by counsel for either party.  But I consider it unnecessary to determine the issue.  While it is possible that, on proper analysis, I made no factual error but merely had an erroneous expectation, I shall assume, for present purposes, that I did make a factual error:  namely, an assumption that persons in the defendant’s position, if given a parole eligibility date, are never granted parole.  The evidence called at the reopening application shows that that assumption was not correct.  I shall treat it as a factual error.

Was the error one “of substance”?

25. [25]
    If it is the case that I made a factual error, the true issue is whether that factual error was one “of substance” in the sense that that phrase has been construed in the authorities referred to above.  That is, was it an error “of sufficient importance as to be likely to call for some material alteration of the sentence?”  That question requires consideration of what sentence I might have imposed if I had not made that erroneous assumption and, if it would have differed from the sentence I in fact imposed, whether that difference is “material”.

Does the error call for a material alteration of the sentence?

26. [26]
    The prosecutor did not address me directly, in his written submission, on the question whether there should be a material alteration of the sentence, nor (to put it another way) whether it is likely that the sentence would have been materially different if I had not made the error.  In his written submissions, he said:

That clear factual error resulted in further mitigation of the sentence to one of five years and four months imprisonment, then further to five years imprisonment with a suspension, rather than a higher sentence with a parole eligibility date.  The imposition of a suspended sentence was to achieve certainty of release for the Respondent following the submissions made that he would never achieve parole due to deportation.

27. [27]
    In his oral submissions, the prosecutor contended that there was a material effect on the sentence, because I ordered a five year sentence suspended after two years and 10 months, rather than a five year and four month sentence with a parole eligibility date after two years and eight months.  He submitted that, absent the incorrect submission by defence counsel, I would have imposed a materially different sentence, being a higher head sentence with a parole eligibility date.

28. [28]
    The prosecutor submitted that the defendant would, in any event, obtain a form of supervision (although not parole) because, once he is deported, he will be subject to the supervisory requirements of New Zealand law.  
29. [29]
    Defence counsel accepted that there is a material difference between a suspended sentence and a sentence with a parole eligibility date.  However, she submitted, having regard to all the other factors to which I referred in my sentencing remarks and having regard to the proper approach to sentencing a non-citizen whose visa had been or will inevitably be cancelled and who will be placed in immigration detention and deported upon release from prison, the effective sentence would not have been materially different, if at all.  A suspended sentence was appropriate and, indeed, I increased the time before suspension to take account of the four months that I did not include in the head sentence:  effectively giving him a later release date than he might have obtained if he were eligible for (and granted) parole.  Even taking into account the fact that he may be granted parole if I were to fix an eligibility date, a similar or identical sentence would have been appropriate, particularly as any parole would have been ineffective because the defendant would be in immigration detention and then deported to New Zealand and thus not subject to the supervision of the Queensland parole authorities.
30. [30]
    Interestingly, the prosecutor submitted that, if I were to resentence the defendant now, at a time when he has served about one year in custody, I could start with a nominal head sentence of six years, not declare the time the defendant has served but take it into account by reducing the head sentence to five years and suspend that sentence after two years from now, which would effectively give him six years, to serve half in custody and give him certainty of release.^[18]

Consideration

31. [31]
    I have been unable to find any guidance on what might amount to a “material” alteration in a sentence.  The closest analogy might be the differences in sentences imposed by the Court of Appeal on occasions when it has found sentences to be manifestly excessive or inadequate.  However, those sentences are, of course, so varied and each depends on the particular circumstances, so they are of no real guidance.
32. [32]
    I accept that there is ordinarily a material difference between a sentence of imprisonment suspended after serving a period and a sentence of imprisonment with a parole eligibility date.  However, that difference is substantially (if not totally) reduced where the offender will, upon release, be taken into immigration detention and deported.  That is because, once released from prison, the defendant will not be subject to any effective parole while in Australia and particularly not any parole within the community in which the defendant ordinarily lives and from which he or she may expect some community support.  As I have outlined earlier, whether released on suspension or on parole, if released before the end of his sentence the defendant would be treated identically by the immigration authority and the New Zealand authorities.
33. [33]
    These factors are relevant in determining an appropriate sentence for such an offender.  The likelihood that, even if granted parole, the prisoner will not be released but will be in immigration detention for an unknown period and will then likely or definitely be deported to another country has long been recognised as making imprisonment more burdensome than it would ordinarily be for a prisoner who can expect, or at least hope, to be released on parole into the Queensland community.^[19]  In such a case, it is also proper for a court to take into account the difficulty or even impossibility of effective supervision and enforcement of parole conditions, so that the benefits of parole for a prisoner are of little or no practical relevance.^[20]

34. [34]
    In the case of this defendant, in particular, any parole granted (whether by court ordered release date or by the Parole Board after an eligibility date) will be less effective than parole in the community because he will not serve the balance of his sentence in the Queensland community where he would have the support, not only of the parole office, but also of his family, his church and community in which he has lived.  He would have no hope or expectation of effective parole at any time.  On the contrary, even if formally granted parole he would continue to be in custody for a period and then would be released into a community with which he has no attachment and no contacts.  He would therefore not have what I consider would be very important help and support, nor any effective parole in Queensland, all of which would be important in assisting in his rehabilitation.  These factors, as well as the other aggravating and mitigating circumstances to which I referred in my sentencing remarks, justified a sentence that was suspended, rather than ordering parole (or possible parole) that would be ineffective.^[21]
35. [35]
    I reached that conclusion in first indicating that an appropriate sentence for this particular defendant was imprisonment for five years and four months, suspended after a period.  But in order to give effect to that conclusion, it was, of course, necessary to impose a lesser sentence (five years) with accompanying suspension.  In order to impose a rough equivalent to a five year and four month sentence, I delayed the date for suspension by four months.  If anything, that was harsher than it might have been, as a theoretical suspension after one half of the longer sentence would have been two years and eight months, but I suspended it after two years and ten months.  Furthermore, it is not substantially different to the sentence that the prosecutor submitted might now be appropriate if I were to reopen the sentence.^[22]
36. [36]
    In the circumstances, if I made an error of fact, it was not one that is likely to have made a material difference to the sentence.  Therefore it was not an error of substance.
37. [37]
    Even if it were a factual error of substance, I would exercise my discretion against reopening the sentence because, even taking into account the true facts, I consider that the sentence properly reflects all the features of these offences and the defendant’s circumstances.  I would not alter the sentence even if I had acceded to the application to reopen it.

Conclusions 

38. [38]
    Having reached those conclusions, it is not appropriate to reopen the proceeding in order to resentence the defendant.
39. [39]
    The application is dismissed.